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

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

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

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

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

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

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

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

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

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

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

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

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

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: