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

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

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

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

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

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

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

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

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

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

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

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

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

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he's not advocating breaking up Twitter because he doesn't like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he's been silenced and canceled. It might all look very stupid on its face, but it isn't. It's actually quite diabolical.Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that's not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it's not because he's stupid. It's because he's an assbag.Now that we've gotten that out of the way, let's talk about the Josh Hawley mug he's selling on his website.See? He's an asshole. In case you can't see the image or don't know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley's major policy positions.

Senator Richard Blumenthal is apparently a bottomless well of terrible internet regulation ideas. His latest is yet another "for the children" bill that will put children in serious jeopardy. This time he's teamed up with the even worse Senator Marsha Blackburn to introduce the Kids Online Safety Act, which as the name suggests is full of a bunch of overbearing, dangerous nonsense that will not protect children at all, but will make them significantly less safe while giving clueless, authoritarian parents much more power to spy on their kids.About the only "good" part of the bill is that it doesn't attack Section 230. But the rest of it is nonsense, and based on a terrible misunderstanding of how, well, anything works. The bill doesn't just take its name from the UK's Online Safety Bill, but it also takes a similar "duty of care" concept, which is a nonsense way of saying "if you make a mistake, and let undefined 'bad stuff' through, you'll be in trouble." Here's the duty of care is self-contradictory nonsense:

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I've already talked about the potential 1st Amendment problems with the EARN IT Act and the potential 4th Amendment problems with it as well. But a recent post by Riana Pfefferkorn at Stanford raises an even bigger issue in all of this: what actual problem is EARN IT trying to solve?This sounds like a simple question with a potentially simple answer, but the reality, once you start to dig in, suggests that either (1) the backers of EARN IT don't actually know, or (2) if they do know, they know what they actually want is unconstitutional.Supporters of EARN IT will say, simply, the problem they're trying to solve is the prevalence of child sexual abuse material (CSAM) online. And, that is a real problem (unlike some other moral panics, CSAM is a legitimate, large, and extraordinarily serious problem). But... CSAM is already very, very illegal. So, if you dig in a little further, supporters of EARN IT will say that the problem they're really trying to solve is that... internet companies don't take CSAM seriously enough. But, the law (18 USC 2258A already has pretty strict requirements for websites to report any CSAM they find to NCMEC (the National Center for Missing & Exploited Children) -- and they do. NCMEC reported that it received almost 21.4 million reports of CSAM from websites. Ironically, many supporters of EARN IT point to these numbers as proof that the websites aren't doing enough, while also saying it proves they don't have any incentive to report -- which makes no sense at all.So... is the problem that those 21.4 million reports didn't result in the DOJ prosecuting enough abusers? If so... isn't the problem somewhere between NCMEC and the DOJ? Because the DOJ can already prosecute for CSAM and Section 230 doesn't get in the way of that (it does not immunize against federal criminal law). And, as Riana noted in her article, this very same Senate Committee just recently heard about how the FBI actually knew about an actual serial child sex abuser named Larry Nasser, and turned a blind eye.And, if NCMEC is the problem (namely in that it can't process the reports fast enough), then this bill doesn't help at all there either, because the bill doesn't give NCMEC any more funding. And, if the senators are correct that this bill would increase the reports to NCMEC (though it's not clear why that would work), wouldn't that just make it even more difficult for NCMEC to sort through the reports and alert law enforcement?So... is the problem that companies aren't reporting enough CSAM? If you read the sponsors' myths and facts document, they make this claim -- but, again, the law (with really serious penalties) already requires them to report any CSAM. Taking away Section 230 protections won't change that. Reading between the lines of the "myths and facts" document, they seem to really be saying that the problem is that not every internet service proactively scans every bit of content, but as we've discussed that can't be the problem, because if that is the problem, EARN IT has a massive 4th Amendment problem that will enable actual child sex abusers to suppress evidence!Basically, if you look step by step through the potential problems that supporters of the bill claim it tries to solve, you immediately realize it doesn't actually solve any of them. And, for nearly all of the potential problems, it seems like there's a much more efficient and effective solution which EARN IT does not do. Riana's post has a handy dandy table walking down each of these paths, but I wanted to make it even clearer, and felt that a table isn't the best way to walk through this. So here is her chart, rewritten (all credit to her brilliant work):If online services don't report CSAM in violation of 2258A, and the real problem is large-scale, widespread, pervasive noncompliance by numerous providers that knowingly host CSAM without removing or reporting it (NOT just occasional isolated incidents), then there's a very long list of potential remedies:

Techirt has long discussed how in the modern era, the things you buy aren't actually the things you buy. And the things you own aren't actually the things you own. Things you thought you owned can be downgraded, bricked, or killed off entirely without much notice. That game console with backward compatibility? It no longer has backward compatibility. That smart home hub or smart speaker at the heart of your living room setup you've enjoyed for years? It not long works. The movies and books you thought were permanently in your personal catalog? Sorry, they aren't anymore. That perfectly good two-year-old phone? It no longer gets security updates, putting you and your data at risk.This is all bad enough when talking about smart home hubs or smart refrigerators, but it's quite another thing entirely when it comes to medical implants. IEEE Spectrum has the Cory Doctorow-esque cautionary tale of Second Sight Medical Products whose Argus optical implants were commonly installed in patients in the early aughts to help them see. Accurately heralded as immeasurably innovative at the time, these devices may soon no longer work or be supported because the company that made them is going bankrupt:

Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Summary:YouTube creators have frequently complained about the opaque and frustrating nature of the platform’s appeals process for videos that are restricted or removed for violating its Community Guidelines. Beyond simply removing content, these takedowns can be severely damaging to creators, as they can result in “strikes” against a channel. Strikes incur temporary restrictions on the user’s ability to upload content and use other site features, and enough strikes can ultimately lead to permanent channel suspension.Creators can appeal these strikes, but many complain that the response to appeals is inconsistent, and that rejections are deemed “final” without providing insight into the decision-making process or any further recourse. One such incident in 2020 involving high-profile creators drew widespread attention online and resulted in a rare apology and reversal of course by YouTube.On August 24, 2020, YouTube creator MoistCr1TiKaL (aka Charlie White, who also uses the handle penguinz0), who at the time had nearly six-million subscribers, posted a video in which he reacted to a viral 2014 clip of a supposed “road rage” incident involving people dressed as popular animated characters. The authenticity of the original video is unverified and many viewers suspect it was staged for comedic purposes, as the supposed “violence” it portrays appears to be fake, and the target of the “attack” appears uninjured. Soon after posting his reaction video, White received a strike for “graphic content with intent to shock” and the video was removed. On September 1, White revealed on Twitter that he had appealed the strike, but the appeal was rejected.White then posted a video expressing his anger at the situation, and pointed out that another high-profile YouTube creator, Markiplier (aka Mark Fischbach), had posted his own reaction to the same viral video nearly four years earlier but had not received a strike. Fischbach agreed with White and asked YouTube to address the inconsistency. To the surprise of both creators, YouTube responded by issuing a strike to Fischbach’s video as well.The incident resulted in widespread backlash online, and the proliferation of the #AnswerUsYouTube hashtag on Twitter, with fans of both creators demanding a reversal of the strikes and/or more clarity on how the platform makes these enforcement decisions.Company considerations:

The problem with Space X's Starlink, as we've noted a few times, is several fold. One, the initial deployment of roughly 12,000 low orbit satellites is only going to be able to service around 500,000 to 800,000 total subscribers. In a country with 20-40 million who lack broadband, and another 83 million who live under a broadband monopoly. So despite a lot of rhetoric to the contrary, it's barely going to put a dent in the problem it claims to solve. At $100 per month (plus $500 hardware charge) it's also not all that affordable, the other major issue for rural Americans without broadband.The other major problem for Starlink is the fact the low orbit constellations cause significant light pollution that harms scientific research, something Musk insisted absolutely wouldn't happen and scientists say can't be mitigated. For Starlink to have a meaningful impact at scale (and make any money in the process) it needs both the struggling Raptor engine delays to be resolved, it needs supply chain issues to be resolved, and it needs to launch roughly 30,000 second generation Starlink satellites.But NASA is now warning the FCC that those newer satellites will cause even more problems for scientific research, space flight, and the Hubble telescope:

No one cuts cops more slack than other cops. You really have to be an impressive kind of awful to lose the support of your Thin Blue Line brothers and sisters.But the police department in Brookside, Alabama has managed to do exactly that. For years, no one had heard of or cared that the town of Brookside even existed… and that possibly includes a percentage of the town's 1,253 inhabitants.That all changed when a new sheriff rolled into town, so to speak. It wasn't a sheriff (because the county already had one) but a new police chief, Mike Jones. Where town leaders may have seen nothing more than a vacancy in its two-employee department, Jones saw opportunity. He soon turned Brookside into Nottingham, Alabama, patrolling nearby highways to hit drivers passing by the small town with multiple fines and fees. Officers also engaged in unnecessary towing of vehicles over minor traffic violations, and apparently made up laws to justify stops, seizures, and traffic citations.Chief Jones was hired in 2018. From 2018 to 2020, fines and fees from traffic citations rose 600%. This windfall went directly to expanding the revenue stream. Chief Jones hired seven more officers, obtained two drug dogs, one MRAP, and the disdain of nearby law enforcement officials. He also incurred the wrath of an untold number of Alabama residents, who were soon making trips to Brookside to attend once-a-month traffic court sessions -- sessions that resulted in Brookside officers being forced to route traffic and oversee parking for this monthly influx of out-of-towners.The county sheriff had already received several complaints about the traffic enforcement extortion being performed by Brookside officers, who often operated in unmarked vehicles while wearing uniforms that gave no indication which law enforcement agency employed them. A nearby district attorney called the town a "black hole" where drivers are subjected to rights violations, harassment, and bogus citations.National exposure caused this real life Boss Hogg to resign his position as police chief. And the Brookside PD is experiencing something most law enforcement agencies never do: criticism from their supposed brothers in arms.

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for "medical misinformation," as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.And now she's back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would "hold platforms accountable" for the amplification of "harmful content." You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.In some ways, it's an improvement on the health misinformation bill, in that she's finally realized that for any bill to pass 1st Amendment scrutiny it needs to be "content neutral." But... it's not. It claims that it's taking a "nudge" approach -- popularized from Cass Sunstein and Richard Thaler's 2008 book of that name. But the whole point of "nudges" in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar's bill does).The bill starts out fine... ordering a study on "content-agnostic interventions" to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would "reduce the harms of algorithmic amplification and social media addiction." And, sure, more research from independent and trusted parties sounds good -- and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we've seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to "fix" content moderation.But, unfortunately, the bill goes beyond just the studies. Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic. And... that is the unconstitutional part. You can call it "content-agnostic" all you want, but as soon as you're telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that's a 1st Amendment issue. A big one.The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine "how covered platforms should be grouped together" (?!?), then "determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms..." and then (play the ominous music) "require each covered platform to implement and measure the impact of such content-agnostic interventions..."And here's where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what "interventions" you put in place, you know that you're immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can't ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving -- but it's a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).Also, the setup here seems totally disconnected to the realities of running a website. "Covered platforms" will be given 60 days to submit a plan to the Commission as to how they'll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed "unfair or deceptive acts or practices" enabling the FTC to go after them with potential fines.The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we've seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don't seem to understand how social media, content moderation, or the 1st Amendment work.And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it's a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies "censoring" content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that's what this bill she's sponsoring would do.I'm all for doing more credible research, so that's great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.

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The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

Some senators are getting all angried up about proposed police reforms President Biden possibly might deliver as an executive order. Reporting earlier this month indicated Biden had something planned, but no one involved in breaking the news appeared to have any details.

More than a year and a half ago we were joined on the podcast by Riana Pfefferkorn, then the Associate Director of Surveillance and Cybersecurity at the Stanford Center for Internet and Society and now a research fellow at the Stanford Internet Observatory, to discuss the disastrous EARN IT Act. As you probably know, EARN IT is back, and this week, Riana joins us once again to discuss why it hasn't gotten any better — and might in fact have gotten worse.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years now, wireless carriers have struggled to make fifth generation wireless (5G) interesting to consumers. While the technology does provide faster, lower-latency connectivity, that's more of an evolution than any kind of revolution. But in a bid to excite consumers (and justify high prices), wireless carriers have been pouring it on a little thick for years, trying to insist that 5G will somehow revolutionize the future, cure cancer, solve climate change, and generally turn America's urban landscape into the smart cities of tomorrow. And don't get me started on the "race to 5G."During the Super Bowl, Verizon used Jim Carrey and T-Mobile hired Dolly Parton and Miley Cyrus to try and make 5G sexy, but most consumers still generally couldn't care any less about 5G:

This won't change much for NSO Group, but at least it helps the Israeli Police rehab its image a bit. An "initial investigation" has (mostly) cleared the Israeli police of wrongdoing in one of the latest surveillance scandals tied to NSO's malware.

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We've talked about so many problems with the EARN IT Act, but there are more! I touched on this a bit in my post about how EARN IT is worse than FOSTA, but it came up a bit in the markup last week, and it showed that the Senators pushing for this do not understand the issues around the knowledge standard required here, and how various state laws complicate things. Is it somewhat pathetic that the very senators pushing for a law that would make major changes impacting a wide variety of things don't seem to understand the underlying mechanisms at play? Sure is! But rest assured that you can be smarter than a senator.First, let's start here: the senators supporting EARN IT seem to think that if you remove Section 230 for a type of law-violating content (in this case, child sexual abuse material, or CSAM), that magically means that website will be liable for that content -- and because of that they'll magically make it disappear. The problem is that this is not how any of this actually works. Section 230 expert and law professor Jeff Kosseff broke the details down in a great thread, but I want to make it even more clear.

ID.me -- the facial recognition company that has managed to snag several lucrative contracts -- has gotten the brushback from perhaps its most lucrative government partner, the IRS. ID.me promised government agencies better control over distributions of unemployment benefits and other payments to the public, citing its own (unexamined) prowess at recognizing faces as well as an astounding claim that governments have been duped out of $400 billion in unemployment benefits by fraudsters -- a claim it has yet to back up with actual evidence.That the pitch worked so well isn't a surprise. After all, governments hate to give money to taxpayers and most governments have deficits they'd like to trim down. Anyone promising millions in savings is bound to be given a second, third, or fourth chance even after it's become obvious claims about fraud are, at best, dubious, and that the company can't really do the job it promised to do: eliminate fraud.Misspending tax dollars is a national pastime. The bizarre embrace of ID.me is no exception. The IRS may have walked back its reliance on ID.me for identity verification, but problems persist. States are still relying on ID.me, even if the feds aren't. And ID.me doesn't seem to have the personnel on hand to backstop questionable calls by its facial recognition tech, as Corin Faife reports for The Verge.

YouTube's Content ID automated copyright system sucks. There, I said it. Any review of the different posts we've done specifically on the topic of Content ID can only leave you with one impression: the system doesn't work. Not that it never works, of course, but when you build a system that is designed specifically to allow 3rd parties to take down speech content, that system had damned well better not be wide the hell open for abuse or laughable errors. Well, guess what? You've got your music labels getting works taken down that were specifically designed not to not be infringing, news organizations managed to claim their own live streams as copyright infringing, and music labels being able to demonetize videos of a guy singing public domain Christmas carols. It's all very stupid, very much the tip of the iceberg, and very much an indication that Content ID, in its current state, is broken.What's that, you say? You need more? Fine, a guy uploaded videos of his cat purring and those got claimed by two different labels as infringing on their copyrights.

In 2018, the sheriff of Butts County, Georgia (no, really), Buford T. Justice Gary Long instructed deputies to ruin the Halloween holiday spirt by planting damning signs in the yards of released sex offenders. The sheriff cited no reason for doing this -- not even extremely anecdotal "evidence." Instead, the signs -- which warned trick or treaters away from the homes of certain county residents -- appeared to be purely punitive: a way to continue to punish criminals who'd already served their time.The sheriff's deputies wandered onto private property and planted signs printed by the department -- ones that said nothing more than "NO TRICK-OR-TREAT AT THIS ADDRESS." The signs were signed (so to speak) by the sheriff, passing themselves off as a "community safety message."In a now-deleted, self-congratulatory post, Sheriff Gary Long claimed this invasion of privacy and property was lawful good:

Make sure you read the update at the endThis is a story that appears like it was created just to get Techdirt coverage, given how many issues we cover it touches on. Here's how it starts: Tulane law professor Ann Lipton, an expert on corporate governance and corporate law, wrote an academic paper about "Capital Discrimination." It's really interesting, and you should read it -- and a lot more people have been reading it over the last few days because of the situation I'm about to describe. The gist of the paper is that sex and gender discrimination happens in disputes regarding corporate structures/ownership, but that we don't generally have language in typical discussions of corporate ownership that recognize this very real dynamic. The article highlights multiple examples where courts try to apply the more traditional language of corporate ownership disputes in cases where there is clearly an element of sex discrimination.One of the examples cited is In re: Shawe & Elting LLC, et al., which involves a somewhat incredible dispute between two people, Philip Shawe and Elizabeth Elting, who founded a company together, Transperfect Global. Without getting into all of the sordid details, Shawe and Elting had been in a relationship very early on, around the time of the formation of the business. At some point they were engaged to be married, though, according to the documents, Elting called off the engagement in 1997. From all of the details discussed in the opinion in the legal dispute between them, one could surmise that Shawe and Elting -- despite working together as co-CEOs, being the only two members of the board, and building up the company into a massive success, employing thousands of employees, and making hundreds of millions of dollars in revenue a year -- spent an awful lot of time fighting with each other in incredibly immature ways. It seems like they had been able to work together semi-amicably for over a decade after their personal relationship broke off, but things went off the rails sometime around 2012. The opinion linked above has detail after detail of incredibly petty and ridiculous behavior, sometimes on both of their parts, but quite frequently driven by Shawe. Here's just one example from the ruling:

The regional monopolization of U.S. broadband comes with all manner of nasty side effects. The lack of competition at the heart of the country's monopoly and duopoly problem contributed to high prices, comically bad customer service, slow speeds, spotty coverage, annoying fees, and even privacy and net neutrality violations (since there's often no market penalty for bad behavior). But it also results in "redlining," or when a regional monopoly simply refuses to upgrade minority neighborhoods because they deem it not profitable enough to serve.The National Digital Inclusion Alliance has done some interesting work on this front, showing how companies like AT&T, despite billions in subsidies and tax breaks, routinely just avoids upgrading minority and low income neighborhoods to fiber. Not only that, the group has long showed how users in those neighborhoods also struggle to have their existing (older and slower) services repaired.Again, defenders of the status quo will insist that these neighborhoods don't get upgraded because the return on investment (ROI) doesn't make it worth it, and that's a company's, like AT&T, right. But that (usually intentionally) ignores the billions upon billions of dollars we've thrown at regional monopolies for fiber networks that, time and time again, are only half delivered. Companies like AT&T routinely get to have their cake (billions in subsidies, regulatory favors, and tax breaks) and eat it too (only half deliver the upgrades they've promised for literally 20 years).It's 2022 and the FCC has only just announced that it's going to take a look at the problem. Prompted by language in the recently passed infrastructure bill, the FCC has announced it's creating a task force to tackle "digital discrimination":

Last autumn, you may recall, the St. Louis Post-Dispatch published an article revealing that the Missouri Department of Elementary and Secondary Education (DESE) was leaking the Social Security numbers of teachers and administrators, past and present, by putting that information directly in the HTML. The reporters at the paper ethically disclosed this to the state, and waited until this very, very bad security mistake had been patched before publishing the story. In response, rather than admitting that an agency under his watch had messed up, Missouri Governor Mike Parson made himself into a complete laughingstock, by insisting that the act of viewing the source code on the web page was nefarious hacking. Every chance he had to admit he fucked up, he doubled down instead.The following month, the agency, DESE, flat out admitted it screwed up and apologized to teachers and administrators, and offered them credit monitoring... but still did not apologize to the journalists. FOIA requests eventually revealed that before Governor Parson had called the reporters hackers, the FBI had already told the state that no network intrusion had taken place and it was also revealed that the state had initially planned to thank the journalists. Instead, Parson blundered in and insisted that it was hacking and that people should be prosecuted.Hell, three weeks after it was revealed that the FBI had told the state that no hacking had happened, Parson was still saying that he expected the journalists to be prosecuted.Finally, late on Friday, the prosecutors said that they were not pressing charges and considered the matter closed. The main journalist at the center of this, Jon Renaud, broke his silence with a lengthy statement that is worth reading. Here's a snippet:

Last autumn, you may recall, the St. Louis Post-Dispatch published an article revealing that the Missouri Department of Elementary and Secondary Education (DESE) was leaking the Social Security numbers of teachers and administrators, past and present, by putting that information directly in the HTML. The reporters at the paper ethically disclosed this to the state, and waited until this very, very bad security mistake had been patched before publishing the story. In response, rather than admitting that an agency under his watch had messed up, Missouri Governor Mike Parson made himself into a complete laughingstock, by insisting that the act of viewing the source code on the web page was nefarious hacking. Every chance he had to admit he fucked up, he doubled down instead.The following month, the agency, DESE, flat out admitted it screwed up and apologized to teachers and administrators, and offered them credit monitoring... but still did not apologize to the journalists. FOIA requests eventually revealed that before Governor Parson had called the reporters hackers, the FBI had already told the state that no network intrusion had taken place and it was also revealed that the state had initially planned to thank the journalists. Instead, Parson blundered in and insisted that it was hacking and that people should be prosecuted.Hell, three weeks after it was revealed that the FBI had told the state that no hacking had happened, Parson was still saying that he expected the journalists to be prosecuted.Finally, late on Friday, the prosecutors said that they were not pressing charges and considered the matter closed. The main journalist at the center of this, Jon Renaud, broke his silence with a lengthy statement that is worth reading. Here's a snippet:

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In admitting that his EARN IT Act is really about attacking encryption, Senator Richard Blumenthal said he wouldn't agree to keep encryption out of the bill because he worried that it would give companies a "get-out-of-jail-free card." That's nonsense for multiple reasons, which we explained in that post, but the fact is Blumenthal's bill actually does contain a "get-out-of-jail-free card" that is incredibly damaging. It's one that child sexual abusers may be able to use to suppress any evidence collected against them and which would not just undermine the very point of EARN IT Act, but would make it that much harder to do the thing that needs to be done: stopping such abusers.We touched on this a little bit in our earlier post about the mistakes senators made during the markup, but it's a little wonky, so it deserves a deeper exploration. Here's a good short description from Kir Nuthi in Slate:

Once someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request.That unalterable fact hasn't stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice, handing out information it didn't want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted (then rescinded). The second time the NYPD screwed up it didn't even bother to see if a court would oblige it twice.US Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the "alien files" compiled by the agency. (h/t National Security Counselors)At the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. From Hoppock Law's lawsuit [PDF] against USCIS:

This week, our first place winner on the insightful side is That Anonymous Coward on our post about the ruling that a college can't order a student to stop talking about an instructor, responding to another commenter who decided to go on a bizarre rant questioning the student's disability:

Five Years AgoThis week in 2017, in the wake of Trump's racist executive order banning people from seven countries from entering the US, pretty much the entire tech industry stood up in opposition. Meanwhile, Ajit Pai was getting quickly to work saying one thing and doing another (not unlike the broadband providers themselves. The FBI was revealed to have even more surveillance powers than we thought, and was also changing its FOIA policies to be even more hostile.Ten Years AgoThis week in 2012, more dominoes were falling on ACTA: the Romanian Prime Minister admitted he had no idea why Romania signed it, the Czech government suspended ratification, then Latvia did the same, and even Germany got cold feet — and soon the mainstream financial press was writing off ACTA as dead. Meanwhile, we took a look at who was still supporting SOPA and why, while Lamar Smith was defending another terrible internet bill, and the RIAA was just lashing out at everyone.Fifteen Years AgoThis week in 2007, we looked at the collateral damage from Viacom's wave of YouTube takedowns and a top NBC executive's hatred of the site, while one guy was claiming to own the Electric Slide and issuing DMCA notices on wedding videos. We also got a closer look at how little it takes for the RIAA to fire off a flimsy DMCA notice, while the RIAA was spending its time trying to tell people they should be paying more for CDs. Meanwhile, we took a look at just how completely bogus the MPAA's claims of a Canadian camcording epidemic were.

If you haven't been a long time Techdirt reader, you'll probably hear me say that there is a copyright infringement court case in Denmark and immediately wonder, "Yeesh, what did Disney do now?" But this is not a story about Disney. This is a story about the heirs of Edvard Eriksen, creator of a bronze statue of The Little Mermaid, inspired by the classic Hans Christian Andersen fairy tale, and their inability to let anyone in any way depict the statue or anything similar without being accosted in copyright actions. Most of the bullying actions by Eriksen's heirs have been, unbelievably, against other towns throughout the world for creating their own Little Mermaid statues: Greenville, Michigan and the Danish city of Asaa for example.But less known are all the times Eriksen's heirs have gone after publications for showing pictures or other depictions of the statue. I won't pretend to be an expert in Danish copyright law, but if that country's laws are such that a newspaper or magazine cannot show a picture of one of the country's most famous landmarks, then that law is silly and should be changed or amended. Lest you think I must have this wrong, you can see a recent story of, not one, but two courts ruling that a newspaper must compensate Eriksen's heirs for a cartoon that depicted the statue on its pages.

Many of the worst ideas in recent copyright laws have been driven by some influential companies’ fear of the transition from analog to digital. Whereas analog formats – vinyl, books, cinematic releases of films – are relatively easy to control, digital ones are not. Once a creation is in a digital form, anyone can make copies and distribute them on the Internet. Traditional copyright industries seem to think that digital versions of everything will be freely available everywhere, and that no one will ever buy analog versions. That’s not the case with vinyl records, and a recent post on Publisher’s Weekly suggests that analog books too, far from dying, are going from strength to strength:

When most people think of the CIA (Central Intelligence Agency), they think of a foreign-facing spy agency with a long history of state sponsored coup attempts (some successful!), attempted assassinations of foreign leaders, and putting the US in the torture business. What most people don't assume about the CIA is that it's also spying on Americans. After all, we prefer our embarrassments to be foreign-facing -- something that targets (and affects) people we don't really care about and governments we have been told are irredeemable.An entity with the power to provoke military action halfway around the world has periodically shown an unhealthy interest in domestic affairs, which are supposed to be off-limits for the nation's most morally suspect spies. The CIA (along with the FBI) routinely abuses its powers to perform backdoor searches of foreign surveillance stashes to locate US-based communications. It also has asked the FBI to do its dirty secondhand surveillance work for it in order to bypass restrictions baked into Executive Order 12333 -- an executive order issued by Ronald Reagan that significantly expanded surveillance permissions for US agencies.Perhaps most significantly -- at least in terms of this report -- the order instructed other government agencies to be more compliant with CIA requests for information. Since its debut in December 1981, the order has been modified twice (by George W. Bush) to give the government more power.That's the authority the CIA has been using to spy on Americans, as a recent PCLOB (Privacy and Civil Liberties Oversight Board) report shows. The PCLOB performed a "deep dive" in CIA domestic spying at the request of Senators Ron Wyden and Martin Heinrich. After its completion, the senators asked for an unclassified version of the PCLOB's report. That report has arrived. And, according to Ron Wyden's statements, it shows the CIA is utilizing EO 12333 to spy on Americans and bypass the protections (however minimal) the FISA court provides to Americans.

Recently, I re-read through various discussions about the “dot-com bubble.” Surprisingly, it sounded all too familiar. I realized there are many similarities to today's techno-optimism and techno-pessimism around Web3 and Blockchain. We have people hyping up the future promises, while others express concerns about the bubble.The Dot-Com Outspoken OptimismIn the mid-1990s, the dot-com boom was starting to gather steam. The key players in the tech ecosystem had blind faith in the inherent good of computers. Their vision of the future represented the broader Silicon Valley culture and the claim that the digital revolution “would bring an era of transformative abundance and prosperity.” Leading tech commentators celebrated the potential for advancing democracy and empowering people.Most tech reporting pitted the creative force of technological innovation against established powers trying to tame its disruptive inevitability. Tech companies, in this storyline, represented the young and irreverent, gleefully smashing old traditions and hierarchies. The narrative was around “the mystique of the founders,” recalled Rowan Benecke. It was about “the brashness, the arrogance, but also the brilliance of these executives who were daring to take on established industries to find a better way.”David Karpf examined “25 years of WIRED predictions” and looked back at how both Web 1.0 and Web 2.0 imagined a future that upended traditional economics: “We were all going to be millionaires, all going to be creators, all going to be collaborators.” However, “The bright future of abundance has, time and again, been waylaid by the present realities of earnings reports, venture investments, and shareholder capitalism. On its way to the many, the new wealth has consistently been diverted up to the few.”The Dot-Com Outspoken PessimismDuring the dot-com boom, the theme around its predicted burst was actually prominent. “At the time, there were still people who said, ‘Silicon Valley is a bubble; this is all about to burst. None of these apps have a workable business model,’” said Casey Newton. “There was a lot of really negative coverage focused on ‘These businesses are going to collapse.’”Kara Swisher shared that in the 1990s, a lot of the coverage was, “Look at this new cool thing.” But also, “the initial coverage was ‘this is a Ponzi scheme,’ or ‘this is not going to happen.’ When the Internet came, there was a huge amount of doubt about its efficacy. Way before it was doubt about the economics, it was doubt about whether anyone was going to use it,” Then, “it became clear that there was a lot of money to be made; the ‘gold rush’ mentality was on.”At the end of 1999, this gold rush was mocked by San Francisco Magazine. “The Greed Issue” featured the headline “Made your Million Yet?” and stated that “Three local renegades have made it easy for all of us to hit it big trading online. Yeah…right.” Soon after, came the dot-com implosion.“In 2000, the coverage became more critical,” explained Nick Wingfield. There was a sense that, “You do have to pay attention to profitability and to create sustainable businesses.” “There was this new economy, where you didn’t need to make profits, you just needed to get a product to market and to grow a market share and to grow eyeballs,” added Rowan Benecke. “It was ultimately its downfall at the dot-com crash.”The Blockchain is Partying Like It’s 1999While VCs are aggressively promoting Web3 - Crypto, NFTs, decentralized finance (DeFi) platforms, and a bunch of other Blockchain stuff - they are also getting more pushback. See, for example, the latest Mark Andreesen Twitter fight with Jack Dorsey, or listen to Box CEO Aaron Levie's conversation with Alex Kantrowitz. The reason the debate is heated is, in part, due to the amount of money being poured into it.Web3 Outspoken OptimismAndreessen Horowitz, for example, has just launched a new $2.2 billion cryptocurrency-focused fund. “The size of this fund speaks to the size of the opportunity before us: crypto is not only the future of finance but, as with the internet in the early days, is poised to transform all aspects of our lives,” a16z’s cryptocurrency group announced in a blog post. “We’re going all-in on the talented, visionary founders who are determined to be part of crypto’s next chapter.”The vision of Web3’s believers is incredibly optimistic: “Developers, investors and early adopters imagine a future in which the technologies that enable Bitcoin and Ethereum will break up the concentrated power today's tech giants wield and usher in a golden age of individual empowerment and entrepreneurial freedom.” It will disrupt concentrations of power in banks, companies and billionaires, and deliver better ways for creators to profit from their work.Web3 Outspoken PessimismCritics of the Web3 movement argue that its technology is hard to use and prone to failure. “Neither venture capital investment nor easy access to risky, highly inflated assets predicts lasting success and impact for a particular company or technology” (Tim O’Reilly).Other critics attack “the amount of utopian bullshit” and call it a “dangerous get-rich-quick scam” (Matt Stolle) or even “worse than a Ponzi scheme” (Robert McCauley). “At its core, Web3 is a vapid marketing campaign that attempts to reframe the public’s negative associations of crypto assets into a false narrative about disruption of legacy tech company hegemony” (Stephen Diehl). “But you can’t stop a gold rush,” wrote Moxie Marlinspike. Sounds familiar?A “Big Bang of Decentralization” is NOT ComingIn his seminal “Protocols, Not Platforms,” Mike Masnick asserted that “if the token/cryptocurrency approach is shown to work as a method for supporting a successful protocol, it may even be more valuable to build these services as protocols, rather than as centralized, controlled platforms.” At the same time, he made it clear that even decentralized systems based on protocols will still likely end up with huge winners that control most of the market (like email and Google, for example. I recommend reading the whole piece if you haven’t already).Currently, Web3 enthusiasts are hyping that a “Big Bang of decentralization” is coming. However, as the crypto market evolves, it is “becoming more centralized, with insiders retaining a greater share of the token” (Scott Galloway). As more people enter Web3, the more likely centralized services will become dominant. The power shift is already underway. See How OpenSea took over the NFT trade.However, Mike Masnick also emphasized that decentralization keeps the large players in check. The distributed nature incentivizes the winners to act in the best interest of their users.Are the new winners of Web3 going to act in their users’ best interests? If you watch Dan Olson’s “Line Goes Up – The Problem With NFTs” you will probably answer, “NO.”From “Peak of Inflated Expectations” to “Trough of Disillusionment”In Gartner’s Hype Cycle, it is expected that hyped technologies experience “correction” in the form of a crash: A “peak of inflated expectations” is followed by a “trough of disillusionment.” In this stage, the technology can still be promoted and developed, but at a slower pace. With regards to Web3, we might be reaching the apex of the "inflated expectations". Unfortunately, there will be a few big winners and a “long tail” of losers in the upcoming “disillusionment.”Previous evolutions of the web had this "power law distribution". Blogs, for example, were marketed as a megaphone for anyone with a keyboard. It was amazing to have access to distribution and an audience. But when you have more blogs than stars in the sky, only a fraction of them can rise to power. Accordingly, only a few of Web3’s new empowering initiatives will ultimately succeed. Then, “on its way to the many,” the question remains “would the new wealth be diverted up to the few?” As per the history of the web, in a "winner-take-all" world, the next iteration wouldn't be different.From a “Bubble” to a “Balloon”Going through the dot-com description, and then, the current Web3 debate - feels like déjà vu. Nonetheless, as I argue that the tech coverage should not be in either Techlash (“tech is a threat”) or Techlust (“tech is our savior”) but rather Tech Realism – I also argue the Web3 debate should be neither “bubble burst” nor “golden age,” but rather in the middle.A useful description of this middle was recently offered by M.G. Siegler, who said the tech bubble is not a bubble but a balloon. Following his line of thought, instead of a bubble, Web3 can be viewed as a “deflating balloons ecosystem”: The overhyped parts of Web3 might burst, and affect the whole ecosystem, but most evaluations and promises will just return closer to earth.That’s where they should be in the first place.Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication