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Back in November we wrote about a very bizarre attempt to abuse copyright law to uncover who was behind a Twitter account, @CallMeMoneyBags. That account tweeted out various things mocking and shaming various extremely wealthy people, including billionaire Brian Sheth, a private equity bro. Some of the tweets in the fall of 2020 lightly mocked Sheth, including suggesting potential infidelity. The images themselves appeared to be social media-type photos of young women (or possibly just one young woman).Sometime later, an organization called "Bayside Advisory LLC" showed up, claiming to hold the copyright on those images, and demanding Twitter take down the images -- which the company did. However, Bayside also tried to use the more controversial DMCA 512(h) subpoena process to try to uncover who was behind the MoneyBags account. That raised red flags with the legal team at Twitter, which is always careful not to give up someone's identity unless absolutely required to by law. Twitter moved to quash the subpoena, suggesting that -- given all of the context -- it seemed most likely that the person behind this effort was Sheth, who was trying to uncover the identify of an anonymous critic on social media, and not for any legitimate copyright reason.Bayside, for its part, insists that it has no connection to Sheth at all, though it does not identify on whose behalf it actually acts. The company only registered the copyright on those photos well after MoneyBags posted them, meaning there's no real value in suing (if the registration happens after the supposed infringement, then you're limited to "actual damages" which, here, would be nothing). The only real reason for issuing the subpoena is to find out who MoneyBags really is. Bayside also claims that it "advises and partners with creators, artists, entrepreneurs to protect, promote, and champion creative expression. Bayside owns a catalog of photographs (the photographs are only a small part of the catalog) to exploit for those purposes."That would have been more convincing if there was a long record of Bayside LLC registering similar copyrights, but, as we noted in our original article, there is not. It registered the photos in question... and those were the only registrations by Bayside until well after it sought the subpoena, at which point is suddenly registered some other unpublished photos.We were dismayed at the time that the court did not grant Twitter's motion to quash. Instead, it said that to do a full "fair use" analysis, it needed to hear from MoneyBags directly, and ordered Twitter to notify the user that s/he should file a declaration with the court about the use of the photos. Twitter did, apparently, send the info to MoneyBags, but MoneyBags (very unfortunately) chose not to file with the court (it's unclear if anyone is even checking the MoneyBags account any more as it hasn't posted in a while).Therefore, the court has said that since it can't conduct the proper fair use analysis, Twitter has to reveal who is behind the account.

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Every year, a few days after New Years (once the data is truly complete), I try to do a post exploring some of the traffic patterns and comment details on Techdirt for the year. This year's will be a bit different on the traffic front, because at the end of last January, we took Google Analytics off the site, and that had been the tool we'd used to see where people were coming from and whatnot. Instead, this year for the details on where people are coming from and what technology they're using, we'll be using a combination of a self-hosted Matomo instance and Plausible Analytics (not self-hosted; though we're hoping to eventually switch to the self-hosted version). We ran all three solutions for one month before turning off Google Analytics, and the data roughly, though not exactly, matched (because all traffic numbers are fake and unreliable), but this year's info should be slightly different. As in the past, we're not reporting silly things like how much traffic we get, because (again), all those numbers are fake, due to dodgy tools and even dodgier bots and such. But we can get useful comparative data about where people are coming from and such.Even though it relied on different analytics, if you'd like to see the older versions, here they are: 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010.The first thing we usually cover is where visitors are coming from -- and already we discover that with different tools, we get very different data. According to Plausible, our top five countries for visitors are the US at 70%, Canada at 5%, UK at 5%, Australia at 2% and India at 2%. Matomo has somewhat different results: US at 78%, UK at 6%, Canada at 3%, Australia at 2% and Germany at 1%. On Matomo, India actually comes in at number 15, rather than 5th on Plausible. Though Germany is 6th on Plausible. On Plausible the next four after Germany are France, Netherlands, Brazil and Sweden. On Matomo, the next five after Germany are France, Russia, Netherlands, Spain, and Sweden. Brazil, which came in 9th on Plausible shows up as 11th on Matomo. Russia, which shows up as 7th on Matomo is all the way down as 24th on Plausible!I repeat: a lot of traffic numbers are garbage and no one knows anything! Last year we were surprised that Google Analytics said China was in our top 10, even though we had heard Techdirt was mostly blocked there. Matomo says that China gave us the 13th most visitors of any country, though Plausible says it's actually 42nd (though, it counts Hong Kong separately, and has that come 37th -- so perhaps if you combine the two...).Moving on to what browsers people use, Chrome is still the leading tool for reading Techdirt. Matomo and Plausible seem to measure browser info in slightly different ways, but it does appear that somewhere around 45% of our traffic is from Chrome (Matomo breaks it down into different versions of Chrome) and somewhere between 25 and 32% from Safari. Firefox is somewhere between 8 and 12%. Interesting to note that most of the Safari traffic is from mobile (so, iOS) whereas most of the Chrome traffic is from a computer. There is still decent amount of mobile Chrome and desktop Safari, but it's a lot more of the alternative. Microsoft Edge is around 4% according to both platforms. DuckDuckGo's privacy browser is a new entrant this year, with both systems saying about 2% of our traffic is coming from there (which is cool to see). Both Opera and Samsung's browser get about 1% each. Matomo claims that there were 126 different browsers used to visit Techdirt last year, which is quite something.In terms of operating systems, Windows at 32% beat out iOS at 26%, Android at 24% and Mac at 14%. Linux variations were about 3% and Chrome OS was a bit under 1%. The two analytics systems seem to agree that about 48% of our traffic was from desktops/laptops, with 52% coming from phones/tablets. Incredibly, a tiny fraction of people apparently visited Techdirt from gaming consoles, TVs, or car browsers (?!?).Every year I'm interested in, generally speaking, where visitors are coming from. While other sites spent lots of time "gaming" social media sites for traffic, we've always avoided that. I'm not against getting such traffic, but I don't want to be reliant on it. So I'm always most interested in how much of our traffic is coming directly from people choosing to be here, and that continues to remain high, with 52% of our traffic coming from "direct" visits, 26.5% from search, only 14.2% from social media, and another 6.5% from other websites:As for social media traffic, Twitter is the biggest single provider, with 55.6% of social media traffic coming from the bird site. Facebook provides 18.3% of the social media traffic, barely edging out Reddit by a barely noticeable number of visits. Hacker News comes in 4th at 6.3%. Everything beneath that is negligible, but if you must know, it's LinkedIn, YouTube, and Telegram after the top four.Google (84%) provides the majority of our search traffic (again, which is 26% of our overall traffic), followed by DuckDuckGo (10%), Bing (3%) and Yahoo (1%). If you mash social and search together, Google provides us the most traffic, followed by Twitter, Reddit, DuckDuckGo, then Facebook, HackerNews and Bing.And... now we get to the lists.Top Ten Stories, by unique pageviews, on Techdirt for 2021:

Excited delirium isn't a medical condition. It's just post-death rationalization that shifts the culpability for deaths at the hands of law enforcement to the corpses the cops created. This supposed medical diagnosis didn't reach critical mass until the introduction of one of the most infamous "less-lethal" weapons ever created: the Taser.Taser is a cattle prod for humans. But it has never been extensively tested on humans for obvious reasons: it has the capacity to be lethal. Taser has since rebranded as Axon, but its legacy lives on. And some of that legacy is the mainstream law enforcement adoption of "excited delirium" as the x factor in officer-involved killings that involve multiple or prolonged deployments of Taser's modified stun gun.Taser may have distanced itself from its only-slightly-less-lethal weapon, but there's no escaping the death toll. And there's no escaping Taser's culpability in these deaths -- a company that has lawyered itself up to the teeth and hired a shitload of medical experts to find any other reason than the most obvious for deaths in custody. Let's not forget what inspired Taser and (kind of) gave it its product name: Tom Swift and His Electric Rifle, a young adult novel that featured a main character who carried a weapon that was anything but "less lethal."

We have long chronicled the aggressive IP enforcement tactics and behavior of video game giant Nintendo. There have been so many stories specifically about Nintendo's animosity towards its fans when those fans express their fandom by creating fan-games that any regular reader here will be familiar with at least some of them. While gaming company responses towards fan-games are certainly more of a spectrum than something black and white, Nintendo probably takes the crown for the least permissive gaming company for this sort of thing. So much so, in fact, that we highlighted its former chief rival, Sega, when it took the opposite tact with folks making Sonic the Hedgehog fan-games.Well, someone out there took the time to create a parody news article about Sega doing a heel-turn on this in a way that seems mostly dedicated to skewering Nintendo for its aggressive, anti-fan behavior. The headline for the comedy post is, appropriately, "Sega Announces They Will Be Using Fan-Game Creators To Develop New Sonic Lawsuit."Let's dive in.

The high number of scammy providers and overall rise in encryption appears to have turned the public sentiment against virtual private network (VPN) VPNs, and whether most consumers actually even need one. As privacy scandals and hacks grew over the last decade, VPNs quickly emerged as a sort of mystical panacea, that could protect you from all harm on the internet. Of course, this resulted in a flood of VPN competitors who were outright scams, made misleading statements about what data is collected, or failed to protect consumer data.The end result is a new trend in the press where about once a month we get a new story informing you that you probably don't actually need a VPN. NBC News was the latest last week, pointing out that VPNs aren't the panacea many people seem to assume:

People at the Copyright Office seem to get mad at me every time I suggest that the Copyright Office is captured by Hollywood, and pointing out how top officials there all seem to bounce back and forth between the Copyright Office and Hollywood.That's not to say there aren't some good people there, because there are. But the organization is dominated by former (and, if the past is any indication, soon to be again), lobbyists and lawyers of the biggest copyright abusers on the planet. So it's difficult to take the Office seriously as a steward for the public good (as they are supposed to be), when it's currently headed by the former top lawyer at IFPI, who, before that, was the top IP lawyer for Time Warner. And, when she then decides to hire Disney's top "IP lawyer" to become General Counsel of the Copyright Office (as has just been announced), it becomes really difficult not to be cynical.This is what regulatory capture looks like.But even worse, actions like this are why the public doesn't believe in copyright. Over and over again all we see is abuse of copyright, and then the government puts the same people who have abused copyright in charge of copyright at the Copyright Office, it makes the public cynical and (reasonably) distrustful of the intentions of the Copyright Office. That's disappointing, as there are plenty of people who have expertise in copyright law who would be great for the Copyright Office. But, for some reason, they never get hired into the top jobs unless they've spent time working for one of the giant Hollywood or recording industry organizations.

In response to the killing of a Baltimore police officer, the head of the Baltimore police union, Mike Mancuso, has decided to accuse everyone who doesn't love cops as being responsible for her killing. The statement from the Baltimore City Fraternal Order of Police (FOP) was delivered via Twitter, portraying itself as an "Open Letter to the People of Baltimore."It's not really an open letter. It's a rant that makes false claims, punctuated with one particularly meaningless statistic to drive its point home: the Baltimore PD no longer feels it has the support of the city government, nor the people it serves. FOP President Mancuso is probably correct on both counts. But nowhere does he even hint that part of the problem might be the Baltimore Police Department.Here's where the letter goes off the rails. It starts in the second paragraph which means you won't have to read much of the "open letter" [PDF] before your eyes start rolling. Let's turn it over to the head of the FOP:

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We've been talking a bit lately about how the media creates moral panics, especially ones that blame social media for problems that are much more likely mostly created by the media themselves.And here's another example of the virtuous cycle, in which the New York Times is able to first create a moral panic, and then gets to keep reporting on Congress "investigating" the moral panic the NY Times itself created. It started with an article in the NY Times discussing a website, which I will not name, that has created forums for those interested in suicide. The article is presented as saying (1) that the website encourages suicide... and (2) then appears to blame Section 230 for it. The reality, on both of those points, is a hell of a lot more complicated.First off, discussions about "encouraging" suicide are always somewhat fraught. I've lost two friends to suicide, and it's very, very natural to look for people to blame. But it's often counterproductive, and no one can ever know for sure what actually caused someone to decide to end their life. A decade ago we talked about this a bit, in regards to two separate lawsuits looking to hold liable people who, it was argued, "drove" others to suicide. Except, as we noted at the time, when you blame people for "driving" or "encouraging" suicide, you are actually giving way more power to the suicide itself, because it gives more power to those thinking of killing themselves, knowing that it will punish people who had been mean to them. In other words, trying to hold people liable for "encouraging" suicide can, unfortunately, actually encourage more suicide in and of itself.Suicide itself is a very fraught topic. In early 2021, Katie Engelhart's book The Inevitable: Dispatches on the Right to Die came out, and it's worth reading. It made me, personally, feel conflicted about the idea of assisted suicide and the right to die -- and reminded me that it's impossible to decide that there's a "right" answer here. Every case is unique and they all involve a whole bunch of difficult moral decisions that different people weigh in different ways. But blaming others for the very personal decisions that an individual makes seems incredibly dangerous. Yet, the entire structure of the NY Times piece seems to want to put the blame on a website. And, on Section 230.But, as the article itself noted, the existence of the site in question is due to other sites removing it. It apparently was a response to Reddit shutting down a forum that discussed suicide:

We've noted a few times now how the U.S. is preparing to spend $42 billion to shore up broadband access, despite not actually knowing where broadband is or isn't available. It's part of a multi-decade effort to fix mediocre broadband without using real world data to actually do it, and without acknowledging that the primary reason U.S. is mired in mediocrity is thanks to regional monopolization and the vast state and federal corruption that protects it.While the press and punditry haven't yet found the courage to directly acknowledge that latter point (you might upset a campaign contributor, story source, or advertiser), the infrastructure bill has drawn new attention to the fact that it's 2022 and we still can't accurately measure U.S. broadband availability and speeds.The Washington Post recently did a good story on this problem, and this week Protocol joined the rush with a good piece of its own.Both stories note how, for years, the FCC determined a census block "served" with broadband if an incumbent ISP simply claimed it could service one home in that census block. Both correctly note that we're finally seeing a bipartisan push to do something as states rush to the trough of both COVID relief and infrastructure broadband funds. Both correctly note that mapping methodology fixes are coming, but probably too late for the massive funding coming down the lane. And both stories ably document the frustration of local community leaders and reformers who are trying to fix a problem with a blindfold on:

What happens when you add a bored cop to a cold case? Bad things. Very bad things. That's the moral of the story conveyed by this Seventh Circuit Appeals Court decision [PDF].Actually, calling it a decision is overstating the conclusions. Apparently, the plaintiff, the defendants, and the lower court all made matters far more confusing than they needed to be, leaving the Appeals Court with a muddied record, unclear assertions from all parties, and open questions as to whether qualified immunity on Fourth Amendment claims had actually been denied.But the path to the procedural shitshow is a full-blown horror show. An unfortunate death, a full autopsy, no sign of foul play, and yet some officer put out to pasture by his department decided he was the second coming of Columbo and mounted a concerted attempt to ruin a person's life.Curt Lovelace's wife, Cory, died in her bed one morning while Curt was getting their children ready for school. Almost any death in a person's home will trigger an investigation. This tragedy was no exception.

Online game platform Roblox has gone from a niche offering to a cultural phenomenon over its 15 years of existence. Rivalling Minecraft in its ability to attract young users, Roblox is played by over half of American children and has a user base of 164 million active users.Roblox also gives players access to a robust set of creation tools, allowing users to create and craft their own experiences, as well as enjoy those created by others.A surge in users during the COVID-19 pandemic created problems Roblox’s automated moderation systems — as well as its human moderators — are still attempting to solve. Roblox employs 1,600 human moderators who not only handle content flowing through in-game chat features but content created and shared with other users utilizing Roblox’s creation tools.Users embraced the creation tools, some in healthier ways than others. If it happened in the real world, someone will try to approximate it online. Users have used a kid-focused game to create virtual red light districts where players can gather to engage in simulated sex with other players — an activity that tends to avoid moderation by utilizing out-of-game chat platforms like Discord to provide direct links to this content.Perhaps more disturbingly, players are recreating mass shootings — many of them containing a racial element — inside the game, and inviting players to step into the shoes of mass murderers. Anti-Defamation League researcher Daniel Kelley was easily able to find recreations of the Christchurch Mosque shooting that occurred in New Zealand in 2019.While Roblox proactively polices the platform for “terrorist content,” the continual resurfacing of content like this remains a problem without an immediate solution. As Russell Brandom of The Verge points out, 40 million daily users generate more content than can be manually-reviewed by human moderators. And the use of a keyword blocklist would result in users being unable to discuss (or recreate) the New Zealand town.Company considerations:

It's been four years now since the US finally started allowing old works to enter the public domain after decades in which cultural landlords continually moved to actively remove works from the public domain. Every year since the US got back into the public domain business, we've happily run a game jam, encouraging people to make use of these newly public domain works, and this year is no different (check out the Gaming Like It's 1926 game jam page if you're interested!).I'm not entirely sure why, but this year, people seem even more interested than in the past few years. We've received way more initial signups than in the past, and more community activity as well. I'm also seeing (outside of the game jam), more public awareness of these newly public domain works than in the past, when it sometimes felt like a more muted public level of interest. Hell, even Ryan Reynolds was quick to jump on the newly public domain to help promote the MVNO Mint Mobile, in which he owns the largest stake.Perhaps some of the excitement over this year's public domain entries is the fact that the public are now getting used to the fact that every January 1st, new works enter the public domain. Or, perhaps it just has to do with the prominence of some of this year's works. When the 1923 class of the public domain came around, many people noted that there weren't very many "big" cultural touchstones in that batch -- and to some extent the same has been true over the last few years' batches as well. The Great Gatsby had name recognition, but still felt kind of old and a bit stuffy.This year's inclusion of the first Winnie-the-Pooh book seems to have changed some of that. But, as Alan Cole rightly points out, it's a complete travesty that Pooh wasn't in the public domain decades ago.As we've explained at length before, copyright term extension makes no sense, legally, ethically, or morally. The entire point of copyright law (in the US) is that it is an economic incentive to creators: if you create something creative and new, we give you an exclusive right to copy it for this length of time. If the work was then created, the incentive was enough. The deal was made. Clearly, the copyright term at the date of creation served its purpose -- to make sure there was enough incentive to create that work. Extending the term of works already created does absolutely nothing to re-incentivize those old works. They were already made. All it does is take things away from the public. The public promised you an exclusive right for a certain number of years, and at the end the public was supposed to get access to those works.In the case of Pooh, when A.A. Milne created it, copyright term in the US was 28 years, though it could be renewed for another 28 years. Thus, the maximum copyright that Milne could have possibly expected in the US was 56 years. In other words, he knew that when he published the work in the US, it would enter the public domain here by 1982 at the latest. The fact that Milne was British has no bearing on this, since he still chose to publish in the US under these rules, and that was clearly enough incentive at the time. (For what it's worth, as I understand it, when he published the works in the UK, the term at the time was "life of the author plus 50" and seeing as he died in 1956, it would be expected that his works would enter the public domain in 2006).Either way, it makes no sense at all that Pooh is only in the public domain now (and just the first book of Pooh). Cole's piece goes much more in depth into the inherent trade-offs with copyright.

If you're in the IT industry, as I am, and you come across someone talking about using Norton or Symantec antivirus software, as I occasionally do, it typically sends you diving for your calendar to check what year we're in. The a/v provider, once dominant in the space, has since built a reputation for itself as bloated software that is mostly effective at grinding your computer to a halt. Whether or not that reputation is deserved, the company has also had issues in the past with users claiming an inability to fully remove Norton software when attempting an uninstall. So, a checkered recent past is the point.Which makes Norton the perfect antivirus company to rollout an update to its Norton 360 platform to allow customers to mine Ethereum with its software!

The Chinese government's surveillance of undesirables isn't limited to its borders. It has been working with tech companies to produce an outsider-oriented surveillance platform to keep tabs on visiting students and foreign journalists -- neither of whom might feel particularly obliged to maintain the party line.The journalist-targeting surveillance system, detailed in a December 2021 Yahoo report, is apparently already mostly a reality. This New York Times report shows the government is already applying its oppression to visitors to the country, hoping to ensure nothing contradicting the official narrative makes its way to the internet airwaves.

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There are multiple efforts under way in the US to pass laws that require social media sites to take down "medical misinformation." As we've described repeatedly, these are really dangerous ideas. Bills like those from Senators Amy Klobuchar and Ben Ray Lujan seek to force social media to remove medical misinformation as declared by the Ministry of Truth... er... Secretary of Health & Human Services. Of course, it was not all that long ago that we had an administration that was actively anti-science, and wanted to declare anything that made the president look bad as "fake news."Also, in the midst of a pandemic, when the data and the science are rapidly evolving, what might seem reasonable at one point, may later turn out to be misinformation -- and vice versa. Forcing down misinformation leads to all sorts of dangerous consequences. Hell, we saw this in China, where such a law was used to silence a doctor who tried to raise the alarm about COVID-19, and was forced to apologize for spreading "untruthful information online."But there's another aspect of this which people rarely try to deal with: content moderation involves a lot of very gray areas and an awful lot of context, much of which may not be immediately obvious. An ongoing war of words between the former British Medical Journal (now just "The BMJ") and Meta/Facebook demonstrates nicely just how impossible it is to claim that "medical misinformation" must be taken offline. There's a bit of background here, and it's a, well, touchy subject, so try to go through the whole thing before you react.First off, the BMJ is not, in any way, anti-vaccine. Somewhat famously, the BMJ was a key player in exposing the fraudulent behavior of Dr. Andrew Wakefield, whose fraudulent study created the modern anti-vax movement. That said, in November, The BMJ published an investigative journalism piece, based on a supposed "whistleblower" suggesting that there was some data integrity issues with the way Pfizer's vaccine was tested, specifically involving a research partner of Pfizer, Ventavia Research Group.Ventavia responded to the allegations by noting that the supposed whistleblower in question had raised the issues a year earlier, and they were investigated and found to be unsubstantiated. That said, many reasonable people noted that this should be further investigated and worried that it might lead to further damaging the public's trust in science.But, of course, you can fully predict what happened next. It didn't just "damage the public's trust in science," the BMJ article instead was instantly championed by all of the big anti-vax voices all over social media as "proof" that the COVID vaccine was dangerous and rushed into approval -- key talking points among that crowd, repeated despite tons of evidence that the vaccine is both incredibly effective and incredibly safe.This resulted in Lead Stories, a fact checking organization, to fact check the article, and slap it with a "missing context" label, and calling into question the way that people were interpreting the article:

A ruling (pdf) last week by the U.S. Court of Appeals for the District of Columbia Circuit has paved the way for deployment of faster, better Wi-Fi, while simultaneously cementing the FCC's authority to make important decisions related to spectrum and interference concerns.Last year, the FCC voted to open up a chunk of spectrum in the 6GHz band for unlicensed use, providing more airwaves to be used by Wi-Fi and other technologies. Wi-Fi is the most immediate beneficiary; this posed the biggest expansion of available spectrum since Wi-Fi was first unveiled back in 1989. The expansion, and the new standards making more efficient use of more spectrum, should result first in better, more reliable Wi-Fi, and ultimately faster speeds of 1–2 Gbps connections over Wi-Fi. That means better broadband, and more innovation in the band:

What's unreasonable for law enforcement to do when searching for a criminal suspect? Not much, apparently. The Eighth Circuit Appeals Court has handed down a ruling that says detaining minors at gunpoint is just good policework when they're in the general vicinity of a suspected criminal act. (via FourthAmendment.com)Here's what prompted this apparently excusable violation of rights, taken from the Appeals Court decision [PDF]:

It isn't news that China has begun a campaign against video games within its borders. The battles in this war are being waged on a couple different fronts. In 2021, Beijing set new rules for what youths can play when it comes to games, as well as a strict schedule for when they can play them. This birthed an underground economy for account sharing to get around those rules, but the rules still had some effect. Chinese regulators also have exerted strict control over what foreign games are available in online stores, while those same regulators strictly control what games gain approval for release from within. This all seems to be some sort of legislative stream of consciousness from President Xi Jinping's belief that video games are somehow massively harmful and addictive to children.So what has the impact of all of this regulatory warfare produced? Well, according the South China Morning Post, no less than 14,000 shuttered gaming businesses within China itself.

The Eleventh Commandment (paraphrased from the original Homer Simpson):

There is no greater example of just how totally broken copyright is than the story of Eric Clapton suing -- and winning -- a poor German woman for copyright infringement after she listed (but did not sell) a bootleg CD that her late husband had purchased in a store. The woman had no idea it was a bootleg. She just knew that she had the CD and wanted to sell it, so she put it on eBay. Eric Clapton -- who has been a despicably awful human being for decades -- sued her over this and won. He won, despite the fact that (1) she hadn't bought the CD, and was just selling her late husband's CD, (2) she had no idea it wasn't authorized, (3) she didn't actually sell it, as she quickly pulled down the listing, and (4) it was just one damn CD and she listed it for less than $12. And not only that, under German copyright law, she was told she also needed to pay Clapton's legal fees.Lots of people (reasonably) got mad about Clapton for pursuing this case, and we'll get to that in a moment, but you should also be furious about copyright laws. Because that's what makes this sort of absolute nonsense not just possible, but plainly encouraged.We've pointed out in the past that one of the biggest problems of copyright in the internet age is that it was designed for a time when "infringement" generally had to mean deliberate attempts by commercial entities to copy someone else's work and profit off of it. The internet has laid bare just how unfit for purpose copyright is by suddenly turning us all into lawbreakers many times over every single day. At that point, it should be obvious that it's the law that's the main problem.However, as we highlighted in a guest post a few years back, copyright hung on as relevant for a few decades in part because of the concept of "copyright toleration," in which the vast, vast majority of those daily infringements were ignored by rights holders. However, as that article has detailed, we've seen increasingly less "toleration" these days, which explains things like the nonsense demands for universal upload filters by the music industry.But, still, there remains some discretion in all of this, and that's where Eric Clapton is still very much at fault. After this story came out, shortly before Christmas, and went viral with lots of people trashing Clapton for such nonsense, his team, trying to do a bit of damage control put up a statement trying to justify what happened. It's... not particularly convincing.

The Department of Homeland Security is trying to distance itself from its most toxic asset, the Washington Post reports:

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A week before Christmas, Radley Balko published a typically excellent story about the police chief in Little Rock, Arkansas, Keith Humphrey. It's a good story, and you should read it. Humphrey, who was appointed police chief as part of a reformist campaign, has faced on ongoing campaign to try to take him down from stalwarts within the Little Rock police department, including a few others who wanted his job -- but mainly by the local police union, the Fraternal Order of Police. Anyway, what caught my attention was that a few days after the article went live, The Intercept reported that it had been removed from Google search due to a DMCA copyright takedown notice.This raised a lot of eyebrows, including questions of whether or not some of the characters who come out of the story negatively were abusing the DMCA to get the story disappeared from Google. It also surprised some people who didn't realize that you could issue a DMCA complaint to Google to get something removed from search. Over the holidays, however, the actual story came out and it's even dumber and more pointless than you could have imagined, but it does highlight (yet again) just how incredibly broken the copyright system is these days.First off, the "Google removal" bit is nothing new. Even though you might think that DMCA takedowns should only be handed to sites that actually host the content in question, hosts are only one part of the DMCA 512 rules. That's the part that most are familiar with, 512(c) with the rules for dealing with "information residing on systems or networks at direction of users." That's the part that has all the standard notification and takedown rules. But there's also 512(d), which is for "information location tools" and says that if such a tool is notified of infringement -- using the same method in 512(c) -- you have to "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.In other words, yes, if someone wants to block something from being found via Google, they can try to file a DMCA takedown claim, saying that the content is infringing. We've seen this used and abused plenty over the years. You may remember revenge pornster Craig Brittain who sought to use this system to get links to a bunch of articles about him removed from Google (this included the press release from the FTC about him settling with them for his sketchy revenge porn efforts). In fact, Brittain tried this multiple times.Indeed, many copyright holding entities don't even bother to go after the hosting of infringing materials -- they find it more expedient to just have that content de-linked from Google. As Google notes in its transparency report, it has been asked to delete 5.5 billion URLs from its index. For what it's worth, elsewhere, Google has reported that the vast majority of URLs it is told to delete aren't even in its index -- but it's still pretty crazy. And while Google at least has a team that tries to review these requests, mistakes happen, because mistakes always happen at this scale.In this case, this was clearly a mistake. But it's an incredibly stupid mistake, so it's worth highlighting. Notably, Google put the link to Balko's story back into Google a few hours after The Intercept publicly complained about it, but it took another week or so until the actual DMCA notice made its way to the Lumen Database where we could finally see just what caused it. Was it the annoyed Fraternal Order of Police in Arkansas? Or just other annoyed cops?No. It was a cybersecurity company that is apparently really bad at it's job.The notice came from Group IB a "cyber threat" company based in Singapore that claims to specialize in the "prevention of cyberattacks, online fraud, and IP protection." It claims to be an "industry-leading cybersecurity solutions provider" but it frankly looks like most of the other companies in the space which probably shouldn't exist. This notice was sent on behalf of a Russian firm: ООО "РАЗВЛЕКАТЕЛЬНЫЙ ОНЛАЙН-СЕРВИС." As far as I can tell this seems to translate into Online Entertainment Service Limited Liability Company -- about as generic a name as you can find. The company was only created in the summer of 2020, so it's a relatively new company.And, apparently, it hired Group-IB to issue takedown notices for a bunch of Netflix shows and movies. From the notice, I would guess that the Russian company is supposed to be trying to take down Russian translations of these Netflix shows, because while all of the names listed in the notice are from Netflix, they're each listed with their English name... and their Russian name. And most of the URLs in the notice do appear to be to various sketchy film download sites. Also, in listing the "original URLs" (which are supposed to show the original copyright covered content), the notice lists both the American IMDB site URLs... and the Kinopoisk.ru links, which is a Russian IMDB-like site owned by Yandex, the big Russian internet company.So, for example, the takedown for "Stranger Things" in this notice looks like this:

We'd already noted how the FAA had been making some shaky claims about how 5G deployments in the 3.7 to 3.98 GHz "C-Band" spectrum range posed safety threats to airline safety. More specifically, the FAA claims operating in this band poses a potential interference problem for airline altimeters. The problem: FCC data, and data from upwards of 40 countries where 5G is already deployed in this band, suggest the concerns are baseless, and that the FCC's decision to set aside a 220 MHz unused guard band to act as a buffer was more than enough to prevent any issues whatsoever.It's been a bit of a weird story given the FAA's own documents have suggested that there isn't a problem. And the FAA, instead of initially working transparently with the FCC (the regulator with specific expertise on this kind of stuff), instead spent the last few months leaking scary stories to the press. The FAA then issued an order pausing all 5G deployment in this C-Band.Deployment in this band matters to you because U.S. 5G performance has been largely mediocre, in large part because of our failure to make middle-band spectrum available for use. We've got plenty of high-band spectrum (high speeds, but limited range and poor building wall penetration) and lots of low-band spectrum (great range but slower speeds), but not much in the middle (a decent combination of speed, penetration, and range). Verizon and AT&T recently paid $70 billion to deploy this spectrum, and aren't keen on any additional delays for obvious reasons.The two companies had already agreed to a 30-day deployment pause, and to lower the power of transmissions at this range. But in a letter to the FAA last week, the two balked at any additional, prolonged delays:

For the second time in about as many weeks, an appeals court has handed down a decision denying qualified immunity to a government employee. That's good! We don't see a lot of these. Getting more than one in a month almost feels excessive, as if we're being set up by the courts for a few months of anger and disappointment to offset this judicial largesse.Offsetting this unexpected goodwill towards the appellate courts in general is this fact: both cases also involve what should unquestionably be obvious violations of rights. Both cases involve fabricated evidence.The one recently handled by the Third Circuit alleged officers hid evidence that would have cleared a man falsely accused of murder… and they, along with the prosecutor, kept this information from the imprisoned man for 25 years. Truly obscene and truly a blindingly obvious violation of rights, as the court noted:

A year ago, Techdirt wrote about an important lawsuit in India, brought by the academic publishers Elsevier, Wiley, and the American Chemical Society against Sci-Hub and the similar Libgen. A couple of factors make this particular legal action different from previous attempts to shut down these sites. First, an Indian court ruled in 2016 that photocopying textbooks for educational purposes is fair use; the parallels with SciHub, which provides free access to copies of academic papers for students and researchers who might not otherwise be able to afford the high subscription fees, are clear. Secondly, the person behind Sci-Hub, Alexandra Elbakyan, is fighting, rather than ignoring, the case, as she has done on previous occasions.One manifestation of her new pro-active approach is a tweet she posted recently. It included a screenshot of an email she wrote to Nature magazine, which had contacted her about a forthcoming article on the Indian court case. Following standard practice, the journalist writing the article, Holly Else, asked Elbakyan to comment on some of the accusations the academic publishers had made against Sci-Hub. Her responses are fascinating, not least because they provide Elbakyan's perspective on several important issues.For example, according to the publishers' comments as transmitted by Else, "Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data". In reply, Elbakyan points out Sci-Hub is unique, and the use of the phrase "Pirate sites like Sci-Hub" is a clever attempt to lump Sci-Hub in with quite different sites, thus prejudging the legality of its activities. Elbakyan says that it's academic publishers -- not Sci-Hub -- which threaten the progress of science:

A handful of Proud Boys members charged with crimes related to the January 6th raid on the Capitol building are arguing their actions are protected by the First Amendment. According to the defendants, the raid they participated in was nothing more than a protest. Alternatively, they're arguing one of the laws being used against them is unconstitutionally overbroad, turning otherwise legal activity into illegal activity.Unfortunately for these would-be insurrectionists, the DC federal court doesn't find any of their arguments sympathetic. (via Courthouse News Service)This is the law the Proud Boys members are challenging, as related in the recitation of the indictment by the DC court [PDF]:

We've written a bit about Judge Alan Albright, the only judge in the US district court in Waco, Texas. Judge Albright, a former patent litigator, decided that, upon taking the bench, he'd become the friendliest court for patent cases in the entire country. He even went around advertising that patent plaintiff's should file there and they've taken him up on it in droves. Since he's the only judge in the district, all the cases get assigned to him and, at last count, more than 25% of new patent cases are all going to him. He's so busy with patent cases he had to hire a former patent troll lawyer as a magistrate judge to help him out.He's also, somewhat famously, been pissing off the notoriously pro-patent appeals court for patent cases, the Federal Circuit, by refusing to rule on transfer requests to more appropriate districts, while making the process for patent defendants more expensive and cumbersome. It got so bad that even the generally pro-patent Senator Thom Tillis sent a couple of letters to Supreme Court Chief Justice John Roberts (who oversees the court system) and to the USPTO, about Albright's "forum selling."It took a little while, but the Administrative Office of the US Courts, has finally responded to the letter sent by Tillis (and Senator Pat Leahy) to Justice Roberts, noting that it appears to be somewhat aware of the problems of Judge Albright.

Asset forfeiture is just cops going shopping for things they want. The analogy -- one prompted by statements made by Sean McMurty, the head of a county forfeiture unit in New Jersey -- works on multiple levels. McMurtry encouraged cops to seize stuff they wanted or needed.

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We've joked in the past about how Republicans hate Section 230 for letting websites moderate too much content, while Democrats hate it for letting websites not moderate enough content. Of course, the reality is they both are mad about content moderation (at different extremes) because they both want to control the internet in a manner that helps "their team." But both approaches involve unconstitutional desires to interfere with 1st Amendment rights. For Republicans, it's often the compelled hosting of speech, and for Democrats, it's often the compelled deletion of speech. Both of those are unconstitutional.On the Republican side, we've already seen states like Florida and Texas sign into law content moderation bills -- and both have been blocked for being wholly unconstitutional.We've already heard that some other Republican-controlled states have shelved plans for similar bills, realizing that all they'd be doing was setting taxpayer money on fire.Unfortunately, it looks like the message has not made its way to Democratic-controlled states. California has been toying with unconstitutional content moderation bills, and now NY has one as well. Senator Brad Hoylman -- who got his law degree from Harvard, where presumably they teach about the 1st Amendment -- has proudly introduced a hellishly unconstitutional social media bill. Hoylman announces in his press release that the bill will "hold tech companies accountable for promoting vaccine misinformation and hate speech."Have you noticed the problem with the bill already? I knew you could. Whether we like it or not, the 1st Amendment protects both vaccine misinformation and hate speech. It is unconstitutional to punish anyone for that speech, and it's even more ridiculous to punish websites that host that content, but had nothing to do with the creation of it.Believe it or not, the actual details of the bill are even worse than Hoylman's description of it. The operative clauses are outlandishly bad.

We've noted repeatedly that despite a lot of breathless rhetoric about America's "quest to bridge the digital divide," U.S. government leaders still don't actually know where broadband is or isn't available. Shoddy broadband mapping has generally been a good thing for regional U.S. telecom monopolies, who not only have been allowed to obscure competition gaps (and the high prices and poor service that result), but hoover up an endless gravy train of subsidies and tax breaks for networks that...mysteriously...always wind up half deployed. Our failure to measure deployment success has been painfully, repeatedly exploited.But there are other ways that incumbents exploit our ongoing failure to map broadband to their advantage. Case in point: roughly 230 U.S. communities have applied for broadband grants being doled out as part of the National Transportation Infrastructure Agency (NTIA)'s $288 million Broadband Infrastructure Program. But when a town or local cooperative/utility/public-private partnership looking to build its own, better broadband network applies for the grant, they're facing baseless challenges by ISPs which claim they already serve these areas.Grafton, New Hampshire, for example, is looking to build its own fiber network after years of market neglect. It had 3,000 of the 4,000 census blocks they applied for grant money for falsely challenged by regional giants Comcast and Charter Spectrum:

Happy new year, everyone! You know what time it is — time for our round-up of the top comments from all of 2021, based on user votes for Insightful and Funny. Plus, unlike past years where we featured a few outliers from the leaderboard of combined votes in both categories, this year there was absolutely no overlap for the second time — so we'll be including all three of the comments from overall votes as well. Meanwhile, if you want to see this week's winners, here's first and second place for insightful, and first and second place for funny.The Most Insightful Comments Of 2021For our first place winner, we head back a few months to September, when GoDaddy reignited the debate over infrastructure-level content moderation by banning the snitch website brought into existence by Texas's anti-abortion law. Naturally some more general points about the issue came up in the comments, including the perennial observation that pro-life movements often seem unconcerned about what happens to children once they're actually born. That One Guy wins first place with a response to someone making this point, but in a way the real credit goes to the person being quoted:

Gaming Like It's 1926: The Public Domain Game JamHappy new year everyone — and happy public domain day! That's right: as of today, works from 1926 are now officially in the public domain in the US, and that means it's time for the latest public domain game jam: Gaming Like It's 1926, presented by Techdirt and Randy Lubin of Diegetic Games. Just like in past years, we're calling on game designers of all stripes and levels of experience to create games that make use of, or are based on, material from newly-public-domain works. The jam starts today and runs until the end of the month: just sign up for the jam on itch.io and submit your game by January 31st.As always, the jam is open to both digital and analog games (be sure to read over the full requirements on the jam page). There are lots of interesting works entering the public domain this year, including:

As long term readers of Techdirt know, each year since 2008 my final post of the year has been a kind of reflection on optimism. This tradition started after I had a few people ask how come it seemed that I was so optimistic when I seemed to spend all my time writing about scary threats to innovation, the internet, and civil liberties. And there is an odd contradiction in there, but it's one that shows up among many innovation optimists. I'm reminded of Cory Doctorow's eloquent response to those who called internet dreamers like John Perry Barlow "techno utopians."

Following protests over killings by law enforcement officers, the Department of Justice decided it might be a good idea to equip more police officers with body cameras. In May 2015, it announced the federal government would be spending $75 million over the next three years to purchase body cameras for local law enforcement agencies.The DOJ saw the potential for body cameras to produce more accountability, lower the chances of deadly interactions, and rebuild some trust with the communities officers served. That's presumably why it opted out of this push for body camera adoption. Five months after it announced the body cam grant program, DOJ reps told local law enforcement that use of body cameras wasn't allowed when partnering with federal law enforcement. Either the cameras stayed home or the local cops did. No exceptions.It wasn't until five years later that the DOJ finally decided it was ok for federal agents to work with local law enforcement officers sporting body cameras, perhaps realizing the cameras simply weren't going to go away. After all, it had encouraged adoption of the tech with three years of federal funding. But this still meant federal officers were going about their work unobserved, which still seemed problematic given all the advantages the DOJ said these cameras created when it started handing out federal cash in 2015.It took another year before the DOJ finally decided federal officers should get with the body camera program. Six years after it invested in nationwide distribution of body cameras, federal officers are finally going to start wearing them. The ATF was the first to perform a test run of the cameras. Now, the DHS is following suit.

It's been a rough year for our community of tech policy advocates, with us losing two of our own, Sherwin Siy in July and then Elliot Harmon in October. We remembered Sherwin here, and the EFF wrote about Elliot over there.But what we realized is that both of them had also written here at Techdirt, so we thought we'd use this end-of-year time of reflection to share those posts from the Techdirt archives.Sherwin appears to have had just one post, but it was a quintessentially Sherwin post that both relished the absurdity of the world, while diligently explaining it:"Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?"Elliot also wrote about wayward applications of intellectual property laws. His first post here was about a winner of the EFF's stupid patent of the month "award," which was bestowed upon Ford for having patented a windshield. He then later wrote about another stupid patent with Daniel Nazer, this time "celebrating" Elsevier's patent on peer review.He also wrote about copyright getting out of hand, including in this post about how current copyright policy creates dangers to research.Of course, IP isn't the only thing to worry about in tech policy; there's also the chilling efforts to increase liability for platforms. He wrote about the problems with these proposals too, counseling Congress not to force platforms to censor their users, and warning about the inevitable harms of SESTA/FOSTA in several other posts:

After bad cops do bad things, other cops will rush to the defense of the agency employing them, claiming most cops are good and these officers are outliers. These assertions might be more believable if law enforcement agencies (and their unions) didn't regularly cover for bad officers or, in the case of police unions, work tirelessly to ensure bad cops get their jobs back.Everything works in favor of bad cops. Their union reps can force agencies to rehire them. Fellow officers look the other way or falsify reports to cover for their actions. Oversight boards are neutered, ignored, and obstructed. Police officials with the power to rid agencies of bad officers either refuse to do so or are powerless in the face of restrictive union contracts.If there's an upside to all of this right now, it's that transparency has been forced on several law enforcement agencies over the past few years, making it easier to obtain misconduct records. Agencies no longer have the opacity to engage in repeated denials of severe misconduct by officers. And they can no longer claim they truly care about ensuring only the best officers remain employed.And there are other, non-official sources for this data. Entities like DDoS (Distributed Denial of Secrets) have exfiltrated files from law enforcement servers, resulting in revelations law enforcement agencies weren't willing to make.Disciplinary files freed by a ransomware hack were converted to searchable documents and examined by The Reveal and DCist. The documents show how much the Washington, DC police department has done to ensure some of its worst officers stayed on the payroll. Criminal misconduct by law enforcement officers apparently isn't worth a firing, not when DC police officials have the final say on discipline.

Missouri Governor Mike Parson is nothing if not consistent in his desire to stifle free speech. As you'll recall, the St. Louis Post-Dispatch discovered that the state's Department of Elementary and Secondary Education (DESE) website was programming in such an incompetent fashion that it would reveal, to anyone who knew where to look, the social security numbers of every teacher and administrator in the system (including those no longer employed there). The reporting on the vulnerability was done exactly following ethical disclosure best practices -- getting just enough evidence of the vulnerability, alerting the state to the problem and not publishing anything until the vulnerability was fixed. The FBI told Missouri officials early on "that this incident is not an actual network intrusion" and DESE initially wrote up a press release thanking the journalists for alerting them to this.But then Parson blundered his way into making a mess of it, insisting that the reporters were hackers and ordering the Missouri Highway Patrol to "investigate" them for prosecution. When people mocked him for this, he doubled down by insisting that this was real hacking and that those reporting otherwise were part of "the fake news."A month later, DESE admitted that it had fucked up, apologized to all the teachers and administrators (current and former) who its own incompetence had exposed, and offered credit monitoring to them all. Notably, DESE did not apologize to the journalists who discovered this mess, and the governor has continued to stand by his call to prosecute them.Earlier this week the Highway Patrol claimed it had completed its investigation... and turned the findings over to state prosecutors. That alone seems worrisome, as there's nothing to turn over to prosecutors here beyond "our governor is a very foolish man, who can't admit to his own failings."

Congress has been holding lots of "but think of the children online!" hearings over the past couple of months, and one prominent topic that comes up over and over again is the fact that people can find "drug" information online. Fears about kids and drugs goes back decades, but politicians love it, because it always works. And, of course, the media loves to run these overhyped stories. A quick search finds dozens of stories like the following in just the last month or so:

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Pretty much exactly a year ago, the Washington Post obtained documents that showed Chinese tech giant Huawei was working with the government to create facial recognition on steroids: a system capable of not just recognizing faces, but also certain ethnicities.There's only one reason for developing ethnicity recognition in China. The government's war on its Muslim Uighur population continues with no sign of letting up. Huawei's tech would enable the government to identify and track its most undesirable citizens, most likely to find any reason at all to disappear them into the country's many prisons and reeducation camps.Huawei denied involvement in this project. It did not deny the documents seen by the Washington Post were legitimate, however. Instead, it claimed the documents referred to a test project that had not been deployed. According to its spokesperson, the company would never provide the powerful Chinese government with tools developed for the purpose of targeting Uighur citizens.It was a pretty weak denial, considering Huawei's disadvantaged position. If it wishes to maintain its healthy market share in China, it will have to comply with the government's demands. That's how it works in China and that's how it's worked for years. And, no matter where they're located, companies don't often spend money on test runs of products they don't intend to sell or deploy in the future. Some testing may be done to see if something is feasible. But if the product works well enough to put on the market (or sell to governments), it will eventually result in real-world applications.One year later and it's the Washington Post again obtaining documents about Huawei's relationship with the Chinese government. Huawei has suggested it's not working directly with the government to create surveillance gear, claiming it's nothing more than a provider of apolitical networking hardware and software.But the documents seen by the Post strongly suggest otherwise.

Two years ago the Trump DOJ and FCC rubber stamped the Sprint T-Mobile merger without heeding experts warnings that the merger would likely erode competition, raise rates, and kill jobs. Then, working closely with T-Mobile and Dish, the FCC and DOJ unveiled what they claimed was a "fix" for the problematic nature of the deal: they'd try to cobble together a fourth major replacement wireless carrier in Dish Network.As we noted a few times the proposal was never likely to succeed. One, because Dish had no track record in this space outside of a parade of empty promises. Two, because the remaining three providers (AT&T, Verizon, T-Mobile) want less price competition and would be incentivized at every step to ensure it fails. Three, because the government would likely dole out more than wrist slaps should Dish miss major build out milestones.So far, things are going just about as well as you'd expect. T-Mobile has already laid off 5,000 employees, and the plan has been mired with endless squabbling between T-Mobile and Dish. And both the beta and commercial launch of Dish's 5G network, first in Las Vegas, keeps being delayed. There is technically a network operating in Las Vegas, but most folks in wireless continue to eye the company's plans with justified skepticism. Early analysis of the network that does exist isn't what you'd call bubbly, as both speeds and coverage are sorely lacking after repeated delays:

While we have been discussing the way mainland China's plan to slow-creep the end of democracy in Hong Kong has turned into more of a sprint, it's also quite true that what is occurring there hasn't gotten nearly enough media burn as it should. Plenty of folks have chalked up China's aggressive attitudes towards Hong Kong to the 2019 pro-democracy protests, but the real sprint began once it became clear that Donald Trump stood a good chance of losing the White House to Joe Biden. Trump showed little willingness to push back on China when it came to its treatment of Hong Kong and the theory was that Biden would reverse course and show some backbone. That he generally hasn't is one of geopolitics great ironies. Beijing has taken such steps as to try to erase the CCP's own bloody history, to censor all kinds of Hong Kong pro-democracy culture, and to arrest of all kinds of pro-democracy lawmakers and media.Democracy is over in Hong Kong, in other words, and has been for some time now. What Beijing is currently in is a mop-up mode, as it looks to take the vice it has built around the city-state and spin the tightening lever. China's actions have made any designation of Hong Kong as a Special Administrative Region an absolute punchline, including at present when China is busy arresting more pro-democracy cultural icons, including a popular musician, Denise Ho.

Years after they've become a go-to tool for law enforcement to work their way backwards to suspects, the Massachusetts Supreme Court is wrestling with the issue of cell tower dumps.Cell tower dumps can often be had with only a subpoena. They give investigators access to all cell phones that were in the area of the tower at certain times. Investigators peruse these lists of numbers to try to find numbers that might be linked to someone who committed a crime. The problem is investigators don't know who that "someone" is, so they, however briefly, turn everyone in the area into a suspect.The Third Party Doctrine tends to control this collection of data. The information is collected as a necessary part of cell phone operation. Therefore, there's no expectation of privacy in this information, the theory goes, since users are aware service providers need this information to provide service. And it very well may be that cell users are aware of this. What they generally don't expect is that law enforcement can obtain this data without a warrant, or, indeed, obtain it at all when investigators don't even know who they're looking for.The thorny issue of tower dumps is before the court, which now has the US Supreme Court's Carpenter decision to consider as well, something it didn't have prior to June 2018. In that decision, the Supreme Court says there was an expectation of privacy in cell site location data, which tower dumps are, even if they contain information on hundreds or thousands of people, rather than the more targeted collection of cell site location info related to a single targeted number.The Carpenter decision was rather narrow, holding that use of cell site location info to track people's movements requires a warrant. But it also stated clearly that there's an expectation of privacy in these records, whether or not they're collected long term or once via a tower dump. The tracking was the issue here, but Carpenter changed how courts view cell site location info.The state of Massachusetts has its own constitution to factor in as well. And in some cases, state constitutions have proven more protective of rights than the US Constitution, which is considered to be the floor for rights, rather than the ceiling.Thomas F. Harrison covered the oral arguments in the Massachusetts Supreme Court for Courthouse News Service. And from what's reported here, it appears the justices aren't all that keen on pretending working backwards from untargeted data dumps isn't the sort of thing the public expects to be happening with the phone records they generate simply by taking their phones wherever they go.

The history of copyright can be seen as one of increasing control by companies over what ordinary people can do with material created by others. For the online world, the endgame is where copyright holders get to check and approve every single file that is uploaded, with the power to block anything they regard as infringing. That digital dystopia moved much closer two years ago, with the passage of the EU Copyright Directive. At the heart of the Directive lies precisely these kind of upload filters – even though the legislation's supporters insisted that they would not be needed. When the law was safely passed – despite voting issues – only then did they admit that upload filters would indeed be required.The parts of the EU Copyright Directive dealing with upload filters are so badly crafted that most of the EU’s Member States are struggling to implement them in their national laws in any coherent way. This means the full impact of the legislation's upload filters won't be known for some time.Until then, we can look at the real-life effects of a similar approach, as used by YouTube. Content ID is a digital fingerprinting system developed by Google at great cost – around $100 million by 2018 – which is designed to spot and block allegedly infringing material on YouTube. Content ID’s flaws are well known, particularly in terms of overblocking perfectly legal uploads. This is the fundamental problem with all upload filters: there is no way that an automated, algorithmic system can encompass the complexities of global copyright laws, which even trained lawyers struggle with. The problem of overblocking is widely known on an anecdotal basis, but we have not had reliable data about the scale of the problem. That has finally changed with the release of YouTube’s first Copyright Transparency Report. The Kluwer Copyright Blog has a good analysis and summary of the report by Paul Keller, Director of Policy at openfuture.eu:

It remains somewhat surprising to me how many people who have ideas for Section 230 reforms clearly do not understand the law and how it works. Perhaps much more surprising is that, when experts try to highlight where their analysis has gone wrong, these "reformers" double down rather than correct their previous faulty assumptions. Dean Baker is a fairly well-known economist whose views on copyright we've highlighted in the past for being quite insightful. Unfortunately, Baker seems to feel that his insight in these other areas allows him to skip the basics on Section 230, defamation law, internet business models and the like. A year ago he wrote two separate very wrong and very confused blog posts advocating for the full repeal of Section 230. Both of them misunderstand how 230 works, its interplay with the 1st Amendment, and how defamation law works.I had planned to write a response to them last year, but never got around to it. However, Baker is still at it, and after Jeff Kosseff and I spent some time trying to explain some fairly basic principles that you need to understand in order to explore the trade-offs in any Section 230 reform proposal, Baker wrote a long thread ignoring the points we raised, and insisting that his plan for 230 reform wouldn't run into any issues. He's wrong, and despite my going back and forth with him over a dozen times, it's become clear that he has no interest in exploring or correcting the mistakes in his analysis. That said, I do think that he makes so many fundamental errors, that it might be useful to go through his thread to explain to other, more open-minded folks, the very significant challenges in these plans to reform Section 230.Baker's latest proposal is apparently no longer the full "repeal" of Section 230 he wanted a year ago, but now just that only subscription supported sites (with no advertising) get the benefits of Section 230. As laid out in his thread, the underlying theory is that Facebook is too big, and by removing Section 230, this would force Facebook to downsize. This is wrong for a bunch of reasons, some of which we've explained before, but we'll get there. He seems to no longer support a full repeal of Section 230 because people highlighted how it harms other sites. So his new version is that Section 230 is only removed for sites that have advertising as their main business model under the (incorrect) theory that this will magically create a world where every site other than Facebook moves away from ads to subscription only, and that somehow makes Facebook smaller. Substacks for everyone!So, again, the keys to Baker's plan seem to be that by removing Section 230 for ad supported sites, it somehow (1) forces Facebook to shrink and (2) forces paywalls all over the internet. And this is somehow good. Both assumptions are fundamentally wrong -- but it's important to understand why, because this mistake is made by too many people who haven't bothered to take the time to understand Section 230.Section 230 does not provide an outsized benefit to Facebook -- instead, it protects everyone else significantly more than it protects Facebook.This is one thing that many, many people fundamentally misunderstand about Section 230. They think that because Section 230 "protects" Facebook and Facebook is so big, that Section 230 protects Facebook more than it protects others, and therefore any removal of 230 protections will have a greater impact on Facebook than other sites.The problem with this is that the real benefit from Section 230 is not the underlying protection from liability, rather it's the procedural benefits that 230 provides that help companies get out of frivolous lawsuits at an earlier stage. We've discussed this before a few times, but many people seem to miss it. There are two important issues as it relates to liability for websites in cases that try to drag them in: (1) what is the likelihood of any underlying cause of action actually leading to liability (outside of Section 230) and (2) how expensive is it to find out whether or not that liability sticks.In the vast majority of cases, there is no underlying cause of action that will create liability. We've actually seen this in action in the few cases that get past the Section 230 hurdle. One of the most famous cases that chipped away at Section 230 protections was Fair Housing v. Roommates, in which the court determined that, while Section 230 protected Roommates.com from content that other users created, it did not protect the company from liability for the pull down menus that it created itself.Many people think this means that Roommates.com lost the case, and very, very few people realize that years later Roommates.com still won, when the courts determined that even though 230 didn't kick the case out early, Roommates.com still didn't actually violate the law. The same is true of the other big 230 exception case, the more recent Enigma Software v. Malwarebytes case, in which the court (somewhat bizarrely) argued that Malwarebytes doesn't get Section 230 protections in cases where a malware designation might be deemed anti-competitive. But, in the end, many years later, Malwarebytes still won.Again, the key benefit to Section 230 is not that it removes all liability, but rather that it gets cases dismissed very early on, cases that would have almost no chance if they went through the full litigation process. In other words, it's a form of protection against frivolous lawsuits, and the main mechanism involved is getting cases dismissed earlier, rather than years (and millions of dollars later). That helps smaller companies way more than it helps Facebook. Facebook has all the money in the world and it can afford to litigate these cases all the way through. It would cost the company pocket change, but the company would likely still win in the end.Smaller companies, on the other hand, cannot afford the costs. Getting a case dismissed on 230 grounds might cost six figures. Having to go all the way through the full litigation is more like 7 or 8 figures (depending on circumstances). Facebook can find that money in the seat cushions of their office couches. Smaller companies cannot.Dean also appears to not understand how defamation law works at all. In his thread, he seems to think that without Section 230, if someone posted something defamatory that would automatically make Facebook liable for the defamation: