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You may recall that my colleague Karl Bode discussed Netflix's response to real competition last month, dealing mostly with how Netflix has attempted to hand-waive concerns over losing subscribers in the face of increasing streaming options from the likes of Amazon, Disney, and Comcast. But buried down in the last paragraph was a reference to Netflix's reported interest in video game streaming. Reports indicated that Netflix had hired an executive that had previously worked for EA, speculating that the company was getting into game publishing. There was no official word from Netflix as to what this game studio would actually look like, and the speculation was roughly what you would expect.

Surprising nobody, the traditional cable TV industry lost another 1.2 million paying subscribers last quarter as users flee to other alternatives. Largely those alternatives consist of streaming video services that are cheaper, more flexible, and feature better customer service. Many others are rediscovering free over the air broadcasts. Others have simply shifted away from TV entirely, choosing to embrace YouTube or TikTok.According to Leichtman Research, the top cable companies lost 587,649 customers in just the last quarter, compared to 698,000 for telco and satellite providers. Over the last year, traditional pay TV providers saw a net loss of about 4,520,000 subscribers, compared to a loss of about 5,460,000 over the year prior (impressive for a trend that the industry spent years pretending wasn't actually happening). Fortunately for the industry, the cord cutting revolution appears to be slowing somewhat:

Former Trump lawyer/current conspiracy theorist/lawsuit defendant Sidney Powell has one more thing to add to her extremely dubious CV: sanctions.The attorney general for the state of Michigan -- one of the states alleged to be the home of election fraud by Sidney Powell and her like-minded associates -- pressed for sanctions, using Powell's own statements against her. Powell claimed her statements about election fraud were nothing more than heated hyperbole that no reasonable person would have believed were facts when seeking to have Dominion Voting Systems' defamation lawsuit dismissed. Michigan's AG noted this same "hyperbole" formed the basis of the election fraud lawsuit she had filed in Michigan, which basically meant Powell expected the court to take her wild speculation as credible and potentially provable facts.You can't have it both ways. Powell is now being sanctioned, along with several other lawyers (including L. Lin Wood) who participated in this harmful waste of government resources. The sanctions order [PDF] is a brutal masterpiece. It runs 110 pages and it details everything wrong about Powell's actions and allegations. Someone give Judge Linda Parker a raise.This is the opening paragraph, which gives the reader a pretty good idea how the rest of the order is going to run. If that reader is one of the lawyers being sanctioned, this paragraph is a swift punch to the solar plexus. Unfortunately for those particular readers, it's only the first blow in a sustained, impeccably delivered beating.

Everything is bigger in Texas, even the act of unconstitutional spitting on the 1st Amendment. We've already talked about the blatantly unconstitutional bill, HB20, that picks up where Florida's already-declared-unconstitutional bill leaves off, and makes it even worse. Well, that bill was voted on Friday and Texas Republicans approved it by a vote of 76 to 44.But, as Adam Kovacevich noted on Twitter, some Democratic legislators wanted to make sure that the Republicans supporting such a gross infringement of the 1st Amendment were on the record for what they supported. So they introduced amendments to carve out the "must carry" rules for Holocaust denialism, terrorist content, and vaccine disinformation. And Republicans made sure to reject all three amendments, thereby explicitly admitting that with their bill they want to make sure that websites are forced to carry vaccine disinformation, terrorist content, and Holocaust denialism.Now, to be clear, all three of those things are (mostly) protected under the 1st Amendment. But so is the right for a website to remove them and not be associated with them. Anyway, 73 Texas legislators said that websites should not be able to takedown "vaccine misinformation." Literally, that's what they voted against:And, reading the amendment on terrorist content, it appears that no website will be allowed to remove ISIS-promoting content any more, which is an interesting choice by Texas Republicans.And then there's the Holocaust denialism bit. Social media sites will have to include it as well. I'm kind of surprised that the legislators introducing this amendment didn't also do one explicitly about "critical race theory." Now that really would have tested things. After all, this very same Texas legislature that, earlier this year, passed an equally unconstitutional bill that says teachers in Texas can't openly talk about America's racist past.And, I guess that is at least consistent. You must post stuff denying the holocaust, but suggesting that there is systemic bigotry? Well, that's beyond the pale.

It's not just headliners like L. Lin Wood and Sidney Powell getting sanctioned for pursuing bullshit election fraud lawsuits. Other grifting asshats with Esq. on their letterhead are getting benchslapped for abusing the court system to pursue political goals, utilizing nothing more than speculation and wild conspiracy theories as "evidence."The lawyers behind a ridiculous lawsuit filed in Colorado have just been sanctioned by a federal judge. The opening of the sanction order [PDF] makes a valiant effort to succinctly sum up the litigation that has resulted in punishment, but there's just so much going on. Enjoy (?) the following craziness:

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Reporter Joseph Bernstein recently published a fantastic cover story in Harpers all about "disinformation" and "fake news" but not in the way you normally think about it. It's not like most such articles -- often decrying just how much disinformation is flowing out there, but rather taking a very critical eye about how we (especially the media) talk about such things. The piece is thought-provoking and well worth reading, and I've spent the last week or so letting it sit and percolate in my head before writing up this post about it.Right after the 2016 election, there was a flurry of hand-wringing from the media, trying to understand how what they were positive would happen (a Hillary Clinton victory and a Donald Trump loss), didn't actually happen. A convenient scapegoat for this surprising turn of events was... Facebook. The narrative took over that it was "fake news" on Facebook that convinced a bunch of gullible people to support a clearly unqualified candidate. That this convenient scapegoat also happened to be successfully siphoning advertising dollars away from some traditional media organizations was mostly just made pointing fingers at it feel even better. However, as we warned at the time, focusing in on social media and "fake news" was not just silly, but potentially counterproductive. Indeed, within weeks, authoritarians around the world started adopting the term "fake news" as a convenient excuse for censoring the media. And, obviously, it became a key part of Donald Trump's stump speech as well.It wasn't long until "fake news" was used against any content someone in power didn't like, and it became a key tool to push for censorship of those who were actually exposing malfeasance.Bernstein's article highlights how this same sort of thinking is happening with the term "disinformation." Of course, disinformation doesn't have a clear definition, and often it's in the eye of the beholder (like "fake news" before it). But, the media (and many politicians) have become so obsessed with "disinformation" that, once again, we've turned it into a kind of moral panic -- and a convenient one for censors around the globe. As Bernstein notes, the hue and cry over "disinformation" has made many Americans think it's one of the biggest threats around:

So we've noted for a long time how the FCC's broadband maps are a bit of a joke, routinely overstating broadband competitors, speeds, and service availability. We've also routinely noted how these bad maps go hand in hand with extremely sloppy subsidy programs that often dole out money to regional monopolies for doing as little as possible. That was punctuated recently by a $9 billion scandal in which the FCC (under Trump appointee Ajit Pai) doled out hundreds of millions of undeserved dollars to ISPs (like Elon Musk's Starlink) so they could deliver broadband to airport parking lots and traffic medians.While the agency has been taking steps to remedy some of the problems under interim boss Jessica Rosenworcel, the agency's mapping and subsidy dysfunction seems to have resulted in it being boxed out of managing the $65 billion in new broadband funding included in the infrastructure bill:

This week, our first place winner on the insightful side is That One Guy with a comment about Universal Music Group sending a takedown over footage of the moon:

Five Years AgoThis week in 2016, we watched as telcos tapdanced around net neutrality requirements, and also took a look yet again at the clear evidence that net neutrality didn't hurt broadband investment. The think tank that originally proposed SOPA claimed to have "proof" that it would have been great, Obama was pushing to ratify the TPP, and India made it a criminal act to merely visit a site that was "blocked" for copyright infringement. On the podcast, we had an interview with Kim Dotcom's lawyer, while it also came out that the FBI had let its seized Megaupload domains lapse and they were now enhanced darkweb child porn sites in its efforts to combat them). This was also the week that we launched our Copying Is Not Theft t-shirt (which was much later taken down by Teespring with no explanation, so you can now get it on Threadless.Ten Years AgoThis week in 2011, the chorus of mainstream press talking about how the patent system is broken was getting louder, with even the Wall Street Journal getting in on the action. The RIAA filed a predictable appeal over the judge's decision to decrease the jury award in the Jammie Thomas trial, the ruling in the MP3Tunes lawsuit thankfully protected DMCA safe harbors, and we looked at an important but often overlooked aspect of the fair use ruling over South Park's What What (In The Butt)? parody. Meanwhile, the fight was on over PROTECT IP, with Don Henley supporting it due to his irrational hatred of YouTube and the Washington Post promoting it with an editorial full of questionable claims, while Paul Vixie issued a thorough explanation of how it would break the internet. And we also had one of our first posts about what, at the time, was a "side show" in the Oracle/Google patent fight: API copyrights.Fifteen Years AgoThis week in 2006, we took a look at how takedown notices were challenging the internet's usual ability to route around censorship, and discussed the failures of the RIAA's automated lawsuit threat strategy (as well as looking at a way to stupidly lose such a lawsuit, and another way to get one dismissed). Heads were rolling inside AOL over its search data leak, while researchers were conflicted about making use of the potentially very useful data. This was also the week that Amazon rolled out something that would become a central component of so many modern internet services, by offering processing power at utility rates for people to use in building products.

Someone finally hit an airplane with a drone while flying it near an airport. And of all people, it was the cops. (h/t Justin England, via Hackaday)

Back in May, we wrote about the growing number of pure copyright scammers, using completely made up claims of copyright infringement as a form of a phishing technique. As I mentioned in a comment, we get multiple such messages every week here at Techdirt -- with almost identical comments being placed (or attempted at least -- since our spam filter seems to have caught all or most of them) on various Techdirt articles claiming infringement. They always came with a link to "the evidence," (which we never clicked of course).These scams are different than standard copyright trolling, in which there may even be a kernel of truth in the initial copyright claim. Here, the scammers are just phishing for logins or other private data, and using the ridiculously overbroad power of copyright statutory damages to frighten people into coughing up the information. And, not surprisingly, the scam is evolving. Sophos recently reported that it's now seeing scammers sending the copyright threats with phone numbers to call, rather than phishing links.

We have seen and covered a great many ridiculous copyright issues here at Techdirt. It is, after all, sort of our thing. Still, some attempts at enforcing copyrights are so ludicrous that they take your breath away. Now, granted, often times the most egregious of these stories arise out of the use of automated bot systems that troll all the places for copyright infringement and often times get it completely wrong. But that isn't so much an excuse for those situations as it is a spotlight on how brutally terrible the current iteration of copyright enforcement has become and how despicable it is that the wider copyright industries just shrug their shoulders at all the collateral damage they cause.And then there's the moon. I know, I know, you're thinking, "The moon? Is Timothy having another stroke while writing a post?" First off, my personal health is none of your concern. And secondly, nope, because a video recording of the moon as seen from Greece, which included no audio, was blocked all over the place due to a copyright claim made by Universal Music Group.

Administrators of publicly-funded schools have a strange habit of misunderstanding the limits of their power and failing to respect the freedoms extended to their students by the Constitution. Naturally, this has resulted in lawsuits. Lots of them. And lots of losses for administrators, including one recent notable loss delivered by none other than the US Supreme Court.But administrators aren't actually feeling these losses, for the most part. As government employees, they have access to qualified immunity, which gives them a chance to avoid being sued as long as they've violated rights in a non-clearly-established way. (Not only that, but if this shield somehow fails, it's taxpayers who foot the bill for courtroom losses.)An op-ed for USA Today, written by FIRE (Foundation for Individual Rights in Education) members Greg Lukaniaoff and Adam Goldstein, asks why we're allowing administrators to avail themselves of this protection, given they're not asked to make speedy decisions under tremendous pressure.

We've covered plenty of stuff about the Oversight Board that Facebook set up. While we recognize the cynicism towards it and still think it's somewhat early to judge, for many of us following the Board's decisions closely, it's been really kind of eye opening how much the Board has really pushed Facebook to make real changes. Of course, there are many real structural issues with the way the Oversight Board is set up -- but the initial results have been fascinating.And that's why it's interesting to hear that the company is considering creating another oversight board like setup for dealing with the challenges of moderation and elections, according to a report in the NY Times.

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Thanks to its never-ending collection of location data, Google has become a prime target for law enforcement investigators. Using so-called "reverse warrants," investigators ask Google to turn over information for all devices in a geofenced area, with the hope of working their way backward from these data points to actual criminal suspects.They're called "warrants" but they can't possibly be supported by probable cause. Treating everyone in the area of a suspected crime as a criminal suspect until things can be sorted out inverts this concept. And the government isn't always honest with courts about how many innocent people these "reverse warrants" can ensnare. Fortunately, we've seen some courts engage in more active reviews of these requests, which has led to a few notable rejections.Google has released some details [PDF] on reverse warrants, which show they're an increasingly-popular option for law enforcement agencies. Zack Whittaker breaks down the data for TechCrunch.

You might recall after the telecom lobby convinced Congress to obliterate both privacy and net neutrality rules (despite both having bipartisan public support), there was a lot of industry whining about the various state replacement efforts that popped up. For example when California popped up with its own net neutrality rules, AT&T whined incessantly about how a "discordant network of state laws" would harm puppies and innovation. Ignored, of course, is that states were simply rushing to fill the consumer protection void created by federal apathy, itself a direct result of lobbying (aka corruption).The same thing happened with broadband privacy guard rails. In 2015, the FCC proposed some fairly basic broadband privacy rules largely focused on making sure what was being collected and sold would be transparent to consumers. But the telecom lobby was easily able to lobby the GOP-controlled Congress to use the Congressional Review Act to kill those rules before they could even take effect. And again, giants like AT&T whined about the discordant landscape of imperfect state legislative efforts that popped up in its wake, hoping you'd ignore that they helped create the problem by attacking even the most basic federal protections.The same thing of course is now playing out in the broader tech sector as well. For years, the tech, healthcare, marketing, insurance, and telecom sectors have worked to uniformly battle any meaningful federal privacy protections on the federal level. Not just the bad proposals. All of them. And, unsurprisingly, after years of this, states have started filling the void with their own solutions, many of which are less than perfect. This, as we saw with telecom, is causing all manner of consternation and constipation at major tech companies:

How gaming companies treat their modding communities that spring up around their games is something of a fault line in the industry. Game studios tend to be either pro-modding or not, with very little space in between. Nintendo, for instance, is notoriously anti-modding of its games. Bethesda, on the other hand, has traditionally been quite open-minded when it comes to the modding communities that have sprung up around its games. We've made the point for a long, long time that embracing modding communities is typically a massive boon to gaming companies and the restrictive attitude companies like Nintendo take makes little sense. Mods extend the shelf life and interest of games, driving attention and elongating the sales cycle and windows for those games. Giving up a little control for more sales seems to only make sense.But, speaking of Bethesda, some developers go even further. For instance, there is a forthcoming Fallout mod made by an independent team that is entitled Fallout: London, and it looks amazing.Now, I am very much a fan of this franchise, so I'm comfortable saying that if you can see a quality difference between what appears in this trailer and what has appeared in official trailers for the franchise, you're a much bigger stickler for details than I am. The mod changes more than just the location, though. It puts an emphasis on different types of gameplay to reflect a more British sensibility.

We all know how lousy civil asset forfeiture is. In lieu of actual criminal charges, cops (and feds) just seize any property they can get their hands on, turning other people's money into pure profit for law enforcement agencies. Money they can often spend with little to no oversight.It's a profitable venture. Cops steal more than actual crooks do, netting billions a year across the nation. The legal process for forfeiture asks very little from law enforcement -- rarely more than a mild hunch the seized funds are linked to criminal acts. The government has a very low bar to meet in most cases. For the people who've suddenly seen their money taken away, the bar is much higher.In most cases, the government gets to decide when forfeiture proceedings begin. It also doesn't have to make much of an effort to notify forfeiture victims that proceedings have begun. That leads to a lot of default wins for government agencies. The amount of money it takes to hire a lawyer to challenge a forfeiture is often more costly than the funds seized, leading to even more government "wins." Every cheap win is treated like a victory in the war on crime, even when it's usually nothing more than the government making some random person poorer.In the state of Massachusetts, one particular District Attorney is ensuring there's no due process when it comes to asset forfeiture. Thanks to severely lax laws, there's no lower limit for seizures, which means the DA's office is more than happy to help cops nickel-and-dime people to figurative death. There's also no legal obligation for the office to move forward with forfeitures in a timely fashion.This has led to the DA's office waiting for as long as possible to initiate some proceedings. And, since the office takes home a percentage of every successful forfeiture, it does as little as possible to ensure those who've had their money seized are made aware that proceedings are imminent. Saurabah Datar and Shannon Dooling have done some digging to produce this enraging report for ProPublica. (h/t @pakanukeha)

We've noted for years that the FCC's purported "war on robocalls" has been predominantly empty. Just a few years ago, for example, the FCC patted itself on the back for some minor rule changes that simply let wireless carriers offer robocall blocking tech by default. And quite often, the "record" fines the FCC announces to punish robocallers are never actually collected. Making matters worse, the US government usually only targets smaller scam robocallers, and not any of the major "legit" industries (like debt collectors) that utilize the same tactics as robocall scammers to harass struggling Americans they know can't pay anyway.You can see how effective the FCC's "war on robocalls" has been by the amount of robocalls you've received. Though it ebbs and flows, the problem has grown massively since 2015, and the Robocall Index notes that 30.7 billion robocalls have been placed in 2021 so far, up from last year. That's just the United States. This is not a war anybody could confidently claim we're winning.This week, the FCC made headlines again for announcing a "record" fine against partisan bullshit artists Jacob Wohl and Jack Burkman for making 1,141 robocalls to cellphones during the 2020 elections without gaining consumer consent. The fines come after the duo were charged with four felonies in Michigan for making misleading robocalls to area minority voters. From the FCC's press release:

I remain confused at why so many people endorse Macarthur Genius award winner, Prof. Danielle Citron's views on Section 230. Over and over again people say that her ideas for reforming Section 230 are sensible. Except that they are not. She has falsely insisted that companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again. If it were true, then every website would turn into 8kun. But that doesn't happen, because most websites realize that when your website is full of garbage people, it drives away other users (including those more likely to support you or your advertisers) and it drives away advertisers.Citron's big idea is to put in place a duty of care or "reasonableness" standard, but we've explained at length why that's the kind of idea only an academic with no experience running a website could love. It would lead to a ton of costly litigation in which companies would have to repeatedly defend their moderation practices in court. At best this would lead to companies all adopting nearly identical moderation practices to whichever company survived the litigation gauntlet first -- effectively crushing any ability to experiment and innovate in the moderation market, and likely locking in Facebook as one of the few companies that can afford to handle moderation's liability risks.All that said, I'm even more flabbergasted by Citron's initial response to the (now walked back) news that OnlyFans was planning to phase out sexually explicit content. Many, many people have made the connection between OnlyFans' decision and FOSTA, the last time Section 230 was amended to add more liability to platforms. Of course, as we've now seen, FOSTA has had a massive human cost, is leading to some wacky vexatious civil lawsuits, and according to the GAO's own study, has failed to live up to any of its promises.In an article at CNN about the OnlyFans decision, Citron makes an absolutely bizarre claim, that the answer to OnlyFans deplatforming sex workers... is to put more liability on OnlyFans so that those sex workers can sue. I only wish I were kidding.

Recently, following our announcement that we have removed all Google ads and tracking code from Techdirt, a reader reached out to us with a novel (and greatly appreciated!) proposal for supporting the change and our ongoing reporting while also helping out a good cause: buying an ad — not for their own benefit, but for that of a public interest campaign that aligns perfectly with our own values. That's why you see a new banner in the sidebar on the site, encouraging our readers to sign an open letter put together by FSFE calling on the EU to pass a law requiring all publicly financed software to be made available under a free and open source license.This reader purchased the ad with their own money, as a way of helping out both Techdirt and the FSFE campaign — and we think this is such an amazing and generous idea that we wanted to call extra attention to it with a post. We've written about this same issue of open sourcing publicly funded software in the past, when the White House began embracing the idea and then unveiled an official open source software policy — but the fact is it should be the norm for all governments that use taxpayer money to develop software. If the public funds something, it should be available to the public by default.And, of course, we also want to call attention to this campaign as a way that you can support Techdirt. As we said in our post about removing Google trackers from the site, these kinds of reader-friendly changes also take away some of our revenue streams, and increase our reliance on you, our readers, to support us directly when and if you can. We're extremely grateful to all the readers who stepped up and gave us a tip through our Friend of Techdirt option in the Insider Shop, or engaged with one of the many other ways to support us — and now this one generous reader has showed yet another option, and one that allows you to support Techdirt and the public interest at the same time.So we encourage everyone to sign the open letter to help demonstrate that this kind of campaign works. Moreover, if there's a campaign or an organization out there that you think aligns well with Techdirt's values and readership and that you'd like to support while helping us out in this way, please get in touch and let us know. We don't currently have fixed rates for direct ad purchases like this, and instead prefer to come up with custom solutions that fit your budget and needs — so don't hesitate to reach out and let us know what you have in mind.Thanks again to all our readers, and today especially to this one reader who came to us with this excellent idea!

Gunshot detection tech provider ShotSpotter is fighting a PR battle on multiple fronts after more news surfaced that its analysts may alter detection records to fit police narratives and investigators' theories. Communications and court documents obtained by the Associated Press confirmed ShotSpotter allows law enforcement officers to request modifications to detection records. And the company apparently used to allow police officers to modify the data themselves.In addition to its questionable handling of evidence, ShotSpotter is also shedding customers. Law enforcement agencies in some cities have decided it's not worth paying for a product that can't reliably detect gunshots. Cities that have dumped ShotSpotter have reported false positive rates as high as 75%.ShotSpotter has fired back, claiming everyone reporting on its tech is wrong about its tech. It also claims it doesn't alter or allow alteration to reports submitted as evidence in criminal cases. Its assertions ring pretty fucking hollow in the face of all of this reporting, which relies on documents filed in court or obtained through public records requests. ShotSpotter's claims, however, are supported by nothing more than the company's own ineffective anger.Now, there's even more evidence showing ShotSpotter isn't worth paying for. The Chicago PD's Inspector General has concluded its investigation of the tech the city pays roughly $11 million/year for. And it has found the tech doesn't seem to be worth the money.

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Remember Gettr? That's the Trumpist social network run by former Trump spokesperson (and vexatious lawsuit filer) Jason Miller that promised to be supportive of "free speech." As we point out what happens with every new social network that jumps into the space with promises to "support free speech!" and "not censor!" before long they will begin to realize content moderation is required to keep your site running -- and soon they discover that content moderation will involve difficult choices. And, sometimes, it involves making mistakes.Of course, whenever Twitter, Facebook, Instagram or whoever else note that they made a "mistake" with a content moderation decision and reverse it, there are always some people who insist it couldn't possibly be a mistake and must be [insert conspiratorial reason here]. So I find it hilarious that on Wednesday, Gettr got to experience all this as well. First, Trump buddy and admitted "dirty trickster" Roger Stone went on Gab -- another such social network -- to whine about how he was "censored" by Gettr, claiming it was because he had made what he believed were disparaging remarks about Miller (and Steve Bannon).

Back in 2009, the FCC funded a Harvard study that concluded (pdf) that open access broadband networks (letting multiple ISPs come in and compete over a central, core network) resulted in lower broadband prices and better service in numerous locations worldwide. Of course when the Obama FCC released its "National Broadband Plan" back in 2010, this realization (not to mention an honest accounting of the sector's limited competition) was nowhere to be found. Both parties ignored the data and instead doubled down on our existing national telecom policy plan: letting AT&T, Verizon, and Comcast do pretty much whatever they'd like. Something, of course, taken to ridiculous new heights during the Trump era.Since then, "open access" has become somewhat of a dirty word in telecom policy, and even companies like Google Fiber -- which originally promised to adhere to the concept on its own network before quietly backpedaling -- are eager to pretend the idea doesn't exist. Why? Because having ISPs compete in layers over a centralized network may improve service, boost speeds, and reduce prices (see: this community-run network in Ammon, Idaho), but it would eat into the revenues of the regional monopolies bone-grafted to our intelligence gathering apparatus, and you simply can't have that.Which is why it was surprising to see California recently pass a $6 billion broadband infrastructure bill that does something unique: it mandates the creation of a massive "middle mile" fiber network that will be open access, which should encourage increased competition. The original announcement breaks down the spending this way:

We've done more than our share of posts in the past about the problems within the DMCA takedown system as currently practiced. The reason for so many posts is in part due to the sheer number of problems with how this all works. For starters, when notices go out to search engines like Google to delist "problem" URLs, those notices are often times generated by automated systems that unsurprisingly result in a vast majority of notices targeting URLs that are non-infringing. As in, over 99% of those notices. And even once we get past the malpractice of using automation buckshot notices that result in an incredible amount of collateral damage, we then have to add the wide open avenues for fraud and abuse of the DMCA system. That type of fraud runs the gamut, from trolls merely trying to cause chaos for the fun of it to competitors of certain forms of content trying to hurt the competition. In the immortal words of former NFL coach John Fox: "It's all a problem."And, on the fraud and abuse side, it's such a problem that perfectly legit URLs can get delisted by Google due to a request from "The U.S. Copyright Office", even though that office doesn't make those sorts of requests.

Summary: YouTube offers an endless stream of videos that cater to the preferences of users, no matter their age and has become a go-to content provider for kids and their parents. The market for kid-oriented videos remains wide-open, with new competitors surfacing daily and utilizing repetition, familiarity, and strings of keywords to get their videos in front of kids willing to spend hours clicking on whatever thumbnails pique their interest, and YouTube is leading this market.Taking advantage of the low expectations of extremely youthful viewers, YouTube videos for kids are filled with low-effort, low-cost content - videos that use familiar songs, bright colors, and pop culture fixtures to attract and hold the attention of children.Most of this content is innocuous. But a much darker strain of content was exposed by amateur internet sleuths, which was swiftly dubbed "Elsagate," borrowing the name of the main character of Disney's massively popular animated hit, Frozen. At the r/ElsaGate subreddit, redditors tracked down videos aimed at children that contained adult themes, sexual activity, or other non-kid-friendly content.Among the decidedly not-safe-for-kids subject matter listed by r/ElsaGate are injections, gore, suicide, pregnancy, BDSM, assault, rape, murder, cannibalism, and use of alcohol. Most of these acts were performed by animated characters (or actors dressed as the characters), including the titular Elsa as well as Spiderman, Peppa Pig, Paw Patrol, and Mickey Mouse. According to parents, users, and members of the r/Elsagate subreddit, some of this content could be accessed via the YouTube Kids app — a kid-oriented version of YouTube subject to stricter controls and home to curated content meant to steer child users clear of adult subject matter.Further attention was drawn to the issue by James Bridle's post on the subject, entitled "Something is Wrong on the Internet." The post — preceded by numerous content warnings — detailed the considerable amount of disturbing content that was easily finding its way to youthful viewers, mainly thanks to its kid-friendly tags and innocuous thumbnails.The end result, according to Bridle, was nothing short of horrific:

Under Trump, the DOJ did all it could to break the spirit of the Black Lives Matter movement that took on renewed vigor last spring following yet another killing of an unarmed black person by a white cop. That's according to a report [PDF] by The Movement for Black Lives, which examined BLM-related prosecutions headed by federal prosecutors.

So, last week the news broke that OnlyFans, the wildly popular platform for "subscribing" to private video and photographic content -- and whose most popular usecase appears to be for adult content -- announced that it was banning "sexually explicit material" in response to difficulty finding investors and payment processors/banks threatening to cut them off (and possibly rejecting too many payments). The whole thing was somewhat confusing because the company did say that nude imagery would still be allowed, just not "sexually explicit," and I'm sure the guidelines for the company's content moderation team on that distinction would have been quite something.Either way, this move lead to an outcry of complaints -- led by sex workers who were already quite reasonably pissed off at previous attacks on them via things like FOSTA. And now, OnlyFans has announced that it has dropped the plans to ban such content, and said that it had worked out some sort of agreement with the financial companies who had been causing trouble before:

While body-worn cameras have mainly proven to be a boon for prosecutors, rather than the all-purpose accountability tools many of us thought they would be [raises hand sheepishly], the mere existence of more recordings is still a net gain for the general public.When cops are doing the recording, there's always a chance footage that disputes their narrative or discredits their testimony may go missing (or never recorded at all). But sometimes everything remains intact and, to officers' dismay, works against them when they're lying about stuff. Courts have always tended to give cops more credence than defendants in criminal trials, but the increase in recordings has freed courts to defer to the witness with no skin in the game: the recording device.This doesn't always happen. Sometimes judges would rather believe cops than their own eyes. It happened in this case. Fortunately for the person challenging a stop that resulted in criminal charges, the second court to review the video decided the recording was far more credible than the officer. (via FourthAmendment.com)A stop that resulted in DUI charges for Michael Boger was predicated on the officer's claim that the rear license plate wasn't illuminated. While it may have been true that Boger was under the influence and behind the wheel, it helps to remember that law enforcement isn't an ends-based operation. The means count, especially if we want the Constitution to mean anything.Officers need to have a reason to pull over people and subject them to at least temporary detention. Courts aren't necessarily opposed to a little pretext. But the pretext needs to hold up. And if it's going to hold up, the stated reason for the stop needs to be credible, rather than immediately undercut by an officer's own body camera.Here's how and why the stop was initiated, as recounted in the North Dakota Supreme Court's decision [PDF]:

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As you likely know by now, a little over two years ago, Devin Nunes kicked off his SLAPPy litigiousness by suing the satirical internet cow with about 1,200 followers at the time of the lawsuit (it now has over 770,000). What got a bit less attention was that the satirical cow was only one of the four parties sued. There was also another satirical account pretending to be Nunes' mother, and then there was Twitter and a political consultant named Liz Mair (who he actually sued another time as well -- in a case that was also dismissed, though Nunes is appealing).Mair has written about what an attack on free speech this is, and spoke with us last year about what a nuisance it is to be sued. Last summer, the judge dismissed Twitter from the lawsuit and now he's finally dismissed Mair as well (as first reported in the Fresno Bee, whose parent company Nunes has also sued).The ruling is pretty short and sweet, as apparently this is just the paper version of what he ruled from the bench last month. But, more or less, the case fails for the exact reason everyone who knows anything about defamation predicted: the complaint doesn't show anything Mair stated was even remotely defamatory, and there's nothing showing actual malice, which is necessary if a public figure is claiming to be defamed.

Back around 2007 or so there was a bit of a ruckus when broadband ISPs were found to be selling your "clickstream" data (which sites you visit and how long you're there) to any nitwit with a nickel, then basically denying they were even doing that. Concerns about that now seem quaint.In the years since, technologies like deep packet inspection have allowed ISPs to collect and sell details on every aspect of your online life, then, through obfuscation, proxies, and empty promises of "anonymization," insist they're not doing exactly that. Or, as the wireless industry's location data scandals have shown, collect and sell your daily movement habits, initially with only a fleeting concern about user privacy and security.Now, sources in the infosec community tell Motherboard ISPs are also (again, via proxies) selling access to "netflow data." As the name suggests, netflow data details the day to day broader stroke network traffic (pdf), whether that's overall network loads, which servers are talking to one another, network topology, etc. The data is generally beneficial to researchers to understand network and user behavior, and to security experts to help mitigate network attacks. But it's also valuable, and increasingly, it's being offloaded to businesses who are then turning around and selling it:

We've talked plenty of times in the past about instances in which publishers of content, typically movies, get copyright takedowns performed on trailers. These takedowns are, frankly, never a great idea, but they are particularly stupid when companies like Marvel, Disney, and Warner Bros. takedown trailers, otherwise known as advertisements, and then release an identical or nearly identical trailer days later. What in the actual hell is the point of that? Killing off your own word of mouth and free advertising for your film?Now, Sony just went through this experience itself, having attempted to DMCA to death a leaked and, importantly, unfinished trailer for Spider-Man: No Way Home.

Another "ag gag" law has been shown the door by the courts. The Tenth Circuit Court of Appeals has declared Kansas' "Farm Animal and Field Crop and Research Facilities Protection Act" (whew!) nothing more than a bunch of First Amendment violations trying to present themselves as a legitimate restriction on access to agricultural facilities. (via Courthouse News Service)This law dates all the way back to 1990, but it's finally being shut down after a successful challenge by the Animal Legal Defense Fund. The ALDF sued in 2018, pointing out the law's obvious constitutional problems. The law criminalizes certain deception in the service of trespassing. Why trespassing couldn't have been handled by existing laws was never explained, but one should never underestimate legislators' desire to please some of their biggest local donors.What the law sought to criminalize were investigations performed by the ALDF, which necessarily involved some form of deception to gain access to farms and dairies. How the ALDF does its work is detailed in the opening of the Tenth Circuit's decision [PDF]:

We've written a lot about the Oracle/Google case over API copyrights as it wound its way through the courts, but the Supreme Court ruling has such widespread implications that there is still plenty to unpack. This week, we're joined by two top experts on intellectual property — Berkeley Law's Pamela Samuelson and Stanford Law's Mark Lemley, who recently co-wrote a paper on the subject — to discuss in detail what impact this landmark case has on copyright and interoperability.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We can add another government agency to the list of entities that have been suckered in by Clearview's highly questionable sales pitches about its unproven tech: the US Army. [Paywall ahead, but alternatives abound.]

The judicial construct known as qualified immunity will continue to make it harder for people to obtain redress for rights violations… at least for the time being. While there has been a more sustained movement to reform law enforcement across the nation, thanks to cops doing the sort of stuff they've been doing for decades, qualified immunity seems particularly bulletproof.It probably seemed like a good idea at the time. It provided government employees a way to avoid being entangled in frivolous litigation based on unsustainable allegations of rights violations. But since that point, it has morphed into an easy button for civil suits, a route cops can use to escape accountability for actual rights violations so long as they violate rights in a way courts haven't previously declared an obvious rights violation.Last year, as protests against police brutality raged around the nation, federal legislators offered up a reform bill that would have altered qualified immunity, changing it from a de facto defense to something officers would actually have to prove in court. Rather than just offer up a motion to dismiss based on qualified immunity, officers would have to show their rights violations were performed in good faith, using more than a couple of boilerplate sentences. Evidence and justifications would need to be offered and, given the lack of an early out, more civil rights cases would subject officers to a jury of their peers, rather than a rote recitation of Supreme Court decisions before granting a dismissal.Of all the things cops want to hold onto, qualified immunity is at the top of the list. Their legal reps -- housed in numerous police unions around the nation -- have an even greater desire to see this doctrine remain intact. These two entities hold a lot of power, and have held this power for years. And there's a certain contingent of legislators, at every level, who will never do anything that might be perceived as being anti-cop. So, the struggle continues. And, for the moment, hopes of seeing qualified immunity rolled back at the federal level have died along with the reform bill that once threatened this extra right granted to government employees.Here's Marianne Levine and Nicholas Wu with more details for Politico.

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If you don't know who Doug Schoen is, he's a quintessential political/lobbying insider, who has worked for the Clintons and more recently for Mike Bloomberg's presidential campaign. It might surprise some people to find that he also was a regular on Fox News... before switching to propaganda purveyor Newsmax, where he was hired earlier this year as an "analyst." In previous lives he worked for political trickster Dick Morris, and was a partner with another political dirty trickster, Mark Penn, in a political consulting firm. Penn, famously, has argued that companies should attack more successful companies through political dirty tricks, and it appears that Schoen is following in those footsteps.He has penned a truly facts-optional op-ed for The Hill to argue that it is imperative for the government to force Google and Facebook to pay news organizations (presumably including his employer, Newsmax -- though The Hill fails to note Schoen's affiliation with Newsmax). Schoen trots out a bunch of dubious points, without support, and includes a few debunked tropes. We don't need to go through them all. But the underlying argument, as always, is that once Facebook and Google became successful, news organizations started failing, and therefore one must have caused the other. Of course, the fact that newspaper declines began before Facebook/Google became so popular should raise some questions about all this. Other research has shown that it's not so much news aggregation or social media that destroyed the news business model, but the death of classified advertising, which was going to happen on the internet no matter what.Schoen addresses none of this, but insists Google and Facebook are the cause. And he does this by flat out misrepresenting the data.

We've noted a few times how US regulators often simply refuse to acknowledge that the US broadband sector is heavily monopolized. Regional cable and phone monopolies are the number one reason US broadband is patchy, expensive, and slow with routinely terrible customer service. But when you see folks in both parties discuss US broadband, industry dysfunction is always framed in this extremely nebulous way (we must "fix the digital divide!"). Largely because nobody in government wants to offend deep-pocketed campaign contributors also bone grafted to our domestic surveillance apparatus.The latest broadband data from Leichtman Research illustrates the scope of the problem. The firm notes that the broadband industry added 890,000 subscribers last quarter. Cable companies added 840,000 of that total, while phone companies added just 50,000:

It seems all but impossible to completely do away with civil asset forfeiture, but advances are being made around the country. Criminal asset forfeiture remains a thing -- one that's rarely troubled by reform legislation. But it can be just as absurd, even if it comes with an adjacent or attached criminal conviction.The Supreme Court recently upheld a decision finding that the seizure of a $42,000 vehicle (via civil forfeiture) over a crime that only generated a maximum fine of $10,000 was excessive, violating Eighth Amendment protections. That decision has the potential to generate more successful challenges of forfeitures, given that many forfeitures don't come attached to criminal convictions, which would seem to indicate almost any seizure at all would be excessive.Another case dealing with the "excessive" aspect of forfeitures and fees has made its way to the top court in the state of Washington. It involves the seizure of a man's vehicle -- one that was also serving as his housing while he tried to find a place to live. (h/t Volokh Conspiracy)The decision [PDF] opens with a description of the unfortunate series of events that left the truck's owner homeless and in further financial trouble after the city's decision to provide code enforcement, rather than solutions.

Opponents of Uber et al. have been cheering the recent California court decision declaring Proposition 22 unconstitutional. Proposition 22 was a ballot measure passed to override significant parts of the legislature's AB 5 bill, which affected all sorts of untraditional employment arrangements, including those of "gig workers." Some people unhappy with the policy effects of Proposition 22 then sued to challenge its validity under the California Constitution. And, at least initially, have won.Whether it actually is a victory for labor is debatable but also somewhat besides the point. The relative merits of any of these things (Uber, Prop. 22, AB 5) is not what's at issue. Instead, the question is whether the decision correctly interprets the California Constitution.The California Constitution is, let's face it, kind of weird. Many state constitutions mirror the US Constitution with the way they are articulated. Not so the California Constitution, which reads much more like a laundry list of specific policies. As a result, it is more changeable than other constitutions, although given all the specific policies that can get baked into it, perhaps not always changeable enough.Ultimately the court found two aspects of Prop. 22 (but only two aspects, despite the challengers' arguments) to be unconstitutional given the current incarnation of the California Constitution: the language in Section 7451 about Workman's Compensation, and the language in Section 7465(c)(4) about amending the law put on the books by the proposition. Each had a different constitutional problem.The problem with the latter related to those potential future amendments. In general, the legislative effects of propositions are not easily changeable, which is something we've taken issue with before. If they were easily changeable then the legislature could simply pass a new law by a normal majority. But with ballot measures, the changes would require another ballot measure, which someone would need to be able to spend millions of dollars to underwrite. It's this unchangeability that has allowed wealthy parties to essentially blackmail the legislature into passing laws they like (see, e.g., the CCPA), because if they were able to fund the passage of these laws directly via a ballot measure, then there would be little the legislature could ever do to change them later, no matter how much they might need to be changed. Sometimes ballot measures include eased requirements for the legislature to make changes, but by default they do not. As the decision itself explains:

One America News (OAN) -- a "news" network apparently more "fair and balanced" than the extremely right-leaning Fox News -- sued MSNBC commentator Rachel Maddow for (factually) insinuating one of OAN's reporters had a side gig working for the Russian government. The OAN reporter, Kristian Rouz, also worked for Sputnik, the government-controlled Russian news outlet.This report by Maddow came with the usual Maddow commentary, which included (protected!) opinions and the statement that Rouz was "literally paid Russian propaganda." This referred to Rouz's Sputnik work and cast serious shade on OAN's decision to bring the reporter on board with its network. A defamation lawsuit followed. And OAN lost.The district court said the assertions were based on fact and everything else was protected opinion. The court signed off on MSNBC's anti-SLAPP motion, handing it a win. And with a the anti-SLAPP win came some fee-shifting, which led to OAN being ordered to pay more than $250,000 in legal fees.OAN appealed. And it has lost again. The Ninth Circuit Court of Appeals says the lower court was right about everything. The Appeals Court [PDF] says California's anti-SLAPP law can be applied here, seeing as it closely aligns with federal options for dismissals and motions to strike. Having determined that, it makes quick work of OAN's appeal.

I'm going to try, once again, to do that stupid thing where I try to express a nuanced point on the internet, where there's a high likelihood of it being misunderstood. So, consider this opening a warning that you should read this entire article to try to get at the larger point.And, along those lines, there are two parts to this story, and while much of it is going to point some fingers at the NY Times and Washington Post in how they presented a story that suggested blaming Facebook for something that isn't actually a Facebook issue, that shouldn't be seen as letting Facebook off the hook, because it doesn't come out of this story looking very good either. Basically, this is a story that shows how much more complex and complicated our information ecosystem is when it comes to misinformation, and simple blame games aren't necessarily that effective.But, first, some background: for a long time, NY Times reporter Kevin Roose has used Facebook's own CrowdTangle tool to highlight what content on Facebook was getting the most engagement. It is a consistently useful tool in showing how claims that Facebook has an "anti-conservative bias" is bullshit. It constantly shows top "conservative" personalities like Ben Shapiro, Don Bongino, and others as having the most engagement on the site.For reasons I don't fully understand, Facebook has always hated this, and has spent so much wasted effort repeatedly insisting that Roose's tracking of the numbers is not telling an accurate picture of what's happening on the site (even though he's using Facebook's own tool). Last week, Facebook launched a new offering which it seemed to hope would change the narrative on this. It's called the "Widely Viewed Content Report" (catchy!). And, obviously, it is true that "engagement" (what CrowdTangle shows) is not the be-all, end-all of what's happening on the site, but it is kinda weird how annoyed Facebook gets about the lists. You can almost hear the defensiveness in how they introduced this new report:

Earlier this month, another courtroom challenge of evidence exposed another questionable alteration of a gunshot report by law enforcement tech supplier, ShotSpotter. In 2018, a man shot by police officers claimed in his lawsuit that ShotSpotter altered gunshot detection records at the request of law enforcement to back up the officers' narrative -- one that claimed he had shot at them first. No gun was ever recovered and the number of shots originally detected by ShotSpotter matched the number fired by officers, leaving them at least one shot short of their "he shot first" story.This appears to have happened again. A man, apparently falsely arrested for a murder he didn't commit, was put in jail for eleven months based almost solely on ShotSpotter reports. The problem with the ShotSpotter report is that it kept changing. And again, the alterations made the report align with the presuppositions of law enforcement. The original detection didn't classify the "percussive noise" as a gunshot. This non-determination was manually overridden by a ShotSpotter "analyst" to be classified as a gunshot.Months later, ShotSpotter relocated the detected noise from where it was originally "heard" to the intersection where the wrongfully-arrested man's car was captured by a nearby surveillance camera, allowing prosecutors to tie together their theory that the person they had already pinned the crime on had actually committed the crime. But, as soon as the wrongfully-arrested man challenged this evidence, prosecutors dropped the case, citing a lack of evidence.This reporting on ShotSpotter's apparent alteration of reports to better fit law enforcement claims and theories angered ShotSpotter. The company issued an angry statement claiming Motherboard's article on its latest evidentiary… oddities… was bogus and possibly capable of "confusing" readers.

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Jonathan Mayer, a Princeton University professor and former chief technologist at the FTC, is one of the smartest people I know. Every time I've spoken with him I feel like I learn something. He's now written a quite interesting article for the Washington Post noting how he, and a graduate researcher at Princeton, Anunay Kulshrestha, actually built a CSAM scanning system similar to the one that Apple recently announced, which has security experts up in arms over the risks inherent to the approach.Mayer and Kulshretha note that while Apple is saying that people worried about their system are misunderstanding it, they are not. They know what they're talking about -- and they still say the system is dangerous.