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Five Years AgoThis week in 2016, Netflix was urging the FCC to crack down on broadband usage caps, Hollywood was struggling to keep its movie screeners secure (despite insisting that anti-piracy tech should be easy), and Paramount issued a DMCA takedown over an Ubuntu Linux torrent. Scientists were realizing that the recent ruling in Europe on infringement-by-linking was making science much more difficult, while the EU was barreling ahead with its absolutely ridiculous copyright proposal, and another bad EU ruling said that WiFi providers can be forced to require passwords if copyright holders demand it. The ACLU was launching a campaign to have President Obama pardon Ed Snowden, while the House Intelligence Committee was insisting that he doesn't qualify as a whistleblower. We also took a closer look at how corporate sovereignty provisions in trade deals are dangerous, while over 200 economics and law professors were urging Congress to reject such provisions. Also, this was the week that Prenda's Paul Hansmeier lost his law license.Ten Years AgoThis week in 2011, a new proposal in the UK would allow police to seize domain names without a court order, the US government was continuing to indict people for file sharing, the Authors Guild filed lawsuits against five universities for providing access to orphaned works, and Hotfile was fighting back against Warner Bros. with a countersuit for copyright misuse. Europe's recent retroactive copyright extension was leading to much well-deserved anger (considering it was costing the public a billion euros), while Canada was planning to reintroduce its terrible copyright plan. We also took a look at one of the starkest examples of the insanity of Hollywood accounting: the fact that the actor who played Darth Vader was still not getting paid because supposedly Return of the Jedi was still not profitable.Fifteen Years AgoThis week in 2006, record labels were being evasive about their own use of file sharing tech, Universal Music was publicly threatening to sue YouTube and MySpace, the USPTO was getting in on the game of brainwashing school kids about infringement, and we reiterated the arguments about why fashion copyright isn't necessary. Nearly a year after the original scandal, Sony's rootkit was still causing problems, while the company was trying to avoid having to pay out another settlement in Canada. The world's largest DVD manufacturer was bragging about yet another DRM scheme, and we noted how — after all the "significant blows" to piracy that had supposedly been happening — piracy still wasn't going down. Also this week, we saw a very early attempt by a Chinese car company at showing off a fully driverless vehicle.

Well, well, it appears that this particular story is going to move faster than I had thought. And, to be frank, I kinda sorta get it. We had just discussed Scouts BSA, formerly The Boy Scouts of America, seeking summary judgement in the trademark suit brought by The Girl Scouts of America. You can go back through the old posts for the detailed context, but the short version is that the Boy Scouts decided girls aren't as icky as they previously thought and rebranded as Scouts BSA to be more inclusive. This created a bunch of confusion with The Girl Scouts, some of it very much due to the actions of local Scouts BSA chapters, such as:

An immense amount of reform has hit cops in California over the last few years.The state very recently made it possible for public records requesters to obtain records about police misconduct -- something that had been statutorily-shielded for decades. That, of course, made local law enforcement agencies unhappy. They sued. They let the state Attorney General argue against the interests of California residents. They fucked around and found out. And yet, they still pretended they could shred their way through this.There's more reform on the horizon. If cops didn't like having their misconduct records being made available to the public, they're really not going to like what's coming next. The general public could have access to even more records -- ones that may confirm assumptions about cops and their motivations.

You might have seen a week or two ago how everybody absolutely freaked out after a Rolling Stone article falsely reported that Ivermectin overdoses were causing massive congestion at Oklahoma hospitals. In reality, the truth wound up being something substantively less than that (Mathew Ingram at Columbia Journalism Review has a good breakdown here). The whole mess began after a local news organization published a story that was misinterpreted by a bunch of national outlets who "aggregated" and repackaged it. The screw up was then picked up in turn by conservative commentators eager to point out that the press was specifically out to get them.But that wasn't true either. These kinds of aggregation screw ups probably happen a hundred times a day. They usually involve a bunch of click-hungry sites amplifying a story without bothering to check if the original story was true (in the case of the Ivermectin story, countless outlets, including MSNBC, didn't bother to even read the original interview with the local doctor). These screw ups aren't necessarily malicious, they're just representative of a broken U.S. ad-based press for which speed, inaccuracy, and inflammatory headlines make more money than measured, sometimes boring, often complicated truth. As Mike discussed, confirmation bias plays a huge role in the whole mess.But it really can't be reiterated how often this kind of cock up happens without the level of breathy introspection that accompanied the Ivermectin/Oklahoma error. For example, this week it wasn't particularly hard for some hoaxers to release a completely fake press release (using GlobeNewswire) stating that Walmart had partnered with the cryptocurrency Litecoin. Countless journalists and news outlets leeched onto the press release and wrote elaborate stories and hot takes, without a single one bothering to confirm that any of the facts in the release were true.They weren't, and everybody in the chain, from GlobeNewswire to a long line of outlets, had to apologize about screwing up so badly. Reuters was one of several news outlets forced to withdraw the story, then try and pretend it never happened:

PETA is certainly not above filing some pretty ridiculous lawsuits, so I was initially skeptical when I heard that it had filed a lawsuit against the directors of the National Institutes of Health (Francis Collins) and Health & Human Services (Xavier Becerra) over Facebook keyword blocking. However, upon reading through the lawsuit, it seems pretty legit. At issue is that it appears that NIH has put in place a block list on Facebook and Instagram that blocks anyone from mentioning PETA and a surprisingly long list of words and phrases that are likely of interest to PETA.If this sounds sorta somewhat similar to the lawsuits saying that the President can't block people on social media, well, perhaps that's because that lawsuit and this one both involve lawyers from the Knight First Amendment Institute at Columbia, who have specialized in getting government officials to stop abusing social media blocks to suppress speech. In this case, some PETA supporters were noticing that certain comments they were posting on the NIH Facebook and Instagram pages didn't appear to be showing up. So they FOIA'd the blocklist that NIH was using, and discovered it was pretty extensive... and not generally what you would call "content neutral" (which would be required under the 1st Amendment):

The First Amendment protects unsympathetic plaintiffs just as much as it does those able to obtain mass support for their arguments. This case, originating from Bloomington, Minnesota, involves someone whose motives seem bigoted but whose actions were clearly covered by the Constitution.When a new school catering to immigrants moved into the neighborhood, Sally Ness took action. An agreement between the city and the Dar Al-Farooq School allowed students of the school to use a nearby park for recreation. Ness felt the school and its students were violating the terms of the agreement and took to filming students at the park, as well as the traffic flowing to the school to pick up students.This resulted in harassment accusations from parents of these students, which the Bloomington PD investigated, visiting Ness at her home and, later, telling her to stop filming students because parents and school administrators might be feeling "intimidated" by her actions. The officers told her to "take her pictures" and "move on."Ness also frequently attended city council meetings to voice her displeasure with the school and its apparent abuse of the public park. After a few meetings, the council amended its harassment law to include something that very specifically targeted Ness' actions.

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Another day, another truly silly lawsuit. The "Liberty Justice Center" and the Tyler & Bursch law firm -- both of which seem to specialize in filing ridiculous lawsuits -- have now filed a lawsuit on behalf of a disinformation-spewing anti-masker against Joe Biden, Surgeon General Vivek Murthy, Facebook, and Twitter... because Facebook and Twitter locked his account after he posted an image claiming (incorrectly) that "masking children is impractical and not backed by research or real world data."The image, which you can find in the lawsuit, but which I will not post here, posts some stuff that is true but uninteresting (such as the fact that sometimes people wear masks improperly) with stuff that is out of context and misleading (such as that studies don't have conclusive answers yet about the effectiveness of masks for kids) to try to make a claim that masking kids is a bad idea. But, like so much misinformation, it's telling a story by cherry-picking a few points out of context. Actual credible sources have broken down why these claims -- repeated frequently by anti-maskers -- are basically bullshit. Yes, there remain some unknown things and inconclusive science (though the blanks will be filled in soon). But the really "scary" stuff about harming development are mostly bogus. Of course, this is the way most misinformation works: take things out of context that you can point to as true, pool them together with a few other things, slip in a few exaggerations, and claim a big picture, the implications of which are ridiculous and not supported.That's what the graphic Justin Hart posted basically did. And, Facebook and Twitter both reasonably felt that it was spreading potentially dangerous misinformation about masks and children. So both services gave him a time-out. Facebook suspended him for three days for violating its community standards. Twitter locked his account for violating its rules.Hart is suing Biden, Murthy and other government officials on the laughably bogus argument that the account suspensions were ordered by the US government. The argument is that because the White House did use its bully pulpit to get angry at Facebook for leaving up misinformation, that somehow makes the government responsible for the actions against Hart (even though those occurred before the White House statements). As we noted at the time, the White House's statements were pretty stupid and short sighted. But they did not, in any way, amount to evidence that the White House and social media were colluding to censor people. Indeed, the whole point of the White House's statements were that Facebook wasn't taking down accounts.The claims in the case are, as expected, silly. First you get a state action claim.

How do you reform this?

Way back in 2017, years before CD Projekt Red released Cyberpunk 2077 in a poor enough state so as to kickoff lawsuits from investors and a shitstorm of criticism by the public, we discussed how CDPR had acquired the US trademark for "Cyberpunk" in its licensing arrangements and then applied for a mark on the same term in the EU. The problem, of course, is that "cyberpunk" isn't just the name of a series of tabletop and video games, but also the name of a broad genre of fiction. These are trademarks that should never have been granted, as they are akin to getting a trademark on something like "True Crime". Plenty of folks in American and the EU cried foul over this, leading to CDPR putting out a statement that, among other things, noted that the company is not a trademark bully and would not be aggressive in enforcing the mark for unrelated projects in the cyberpunk genre. Pay special attention to the tweet from CDPR below in the section headed "What does it mean that CD Projekt owns the trademark for "Cyberpunk"?

Last week, China restricted children under 18 to three weekend hours of video games per week. If you’re a parent of a Minecraft- or Fortnite-obsessed child, you may be wondering why the U.S. doesn’t do something similar. But China’s move against juvenile gaming is just the Chinese government's latest salvo in their barrage of attempts to control internet technology. Their centralized approach is one that we in the U.S. have historically rejected and should continue to reject.China’s Great Firewall has long cut off the Chinese people’s access to much of the global internet. But recent actions in China focus on its own tech companies. These moves include passing a stringent new privacy law (which offers no protection from government spying) and tough new antitrust restrictions. China also blocked internet finance company Ant’s I.P.O., fined e-commerce company Alibaba 18.2 billion yuan and has heavily regulated online lenders, rapidly reducing their numbers from 5,000 to six as of September 2020. One prominent financial tycoon was abducted in Hong Kong, taken to China, and is apparently under house arrest while Chinese regulators seize and dismantle his companies. The crackdown expands beyond tech companies to users – Chinese police have arrested social media stars for on-camera eating as part of a campaign against food waste. It is, according to commentary circulated by Chinese state media, a “profound revolution” against “the chaos of big capital” and “a return to the Communist Party of China’s initial aspirations, a return to people as the center, and a return to the essence of socialism.”In short, China’s leaders are grasping to centralize control. And their method is to label individualism as a vice rather than a virtue.China’s leaders fear that they are losing control of markets and society, especially in the digital age.They are right. But as I argue in my forthcoming book, Getting Out of Control: Emergent Leadership in a Complex World, control is overrated – and often it is counterproductive. Complex systems like markets are characterized by emergent order, with robust and productive patterns forming from the interactions of many individual participants following relatively simple rules. These patterns cannot be anticipated or centrally designed, because the knowledge they embody is produced by the individuals grappling with the situations in front of them.Attempts to centrally control such systems eliminate much of the nuance and knowledge contained within them. The result is a simplistic, centralized system that leaves most participants worse off than they were under the emergent order produced by the complex, decentralized system. Unsurprisingly, those who are better off under centralized systems tend to be those at the center – those in control. Their control comes at the expense of everyone else’s welfare.I don’t expect this argument to persuade China’s leaders to change their path, although for their citizens’ sake I wish they would. But it might help guide our path here in the U.S. The U.S. character – and our Constitution - would never permit the kind of full-bore government centralization that China has undertaken. Yet the technocratic desire to be in control, especially in times of rapid change, is alive and well here.Indeed, many of the ideas China has adopted are floating around U.S. academia and even Capitol Hill. Breaking up big tech, regulating new technologies like blockchain and cryptocurrencies, regulating what kind of speech cannot or must be allowed on social media sites, limiting the use of encryption – these are increasingly common sentiments across the U.S. political spectrum. Sen. Josh Hawley’s proposed bill to ban “infinite scroll” on phone apps would fit in seamlessly with the Chinese government's diktats.It's as if China is taking the most precautionary policies from US academics, advocates, and lawmakers and implementing them via boot, truncheon, and machine gun. In fact, China’s commercial privacy law – created by a government that surveilles its citizens relentlessly – has drawn praise from some U.S. tech policy leaders who seem to wish we in the U.S. could ram through such onerous laws without the inconveniences of the democratic process.But America’s strengths include our embrace of individualism, couched appropriately within functioning institutions (themselves artifacts of emergent order), and our willingness to participate in complex systems where no one seems to be in control. These strengths have made the U.S. an economic powerhouse, home to many great innovators in technology and businesses, and the source of creative expression that entertains and educates the world.As tech analyst Ben Thompson has argued, let’s not do a pale imitation of China's attempt to stamp out individualism and centralize control. Instead, let's double down on freeing the individual to create solutions to the problems they and others face.Even if that means you, not the government, has to tell your kid to put down the game controller.Neil Chilson is a senior technology and innovation research fellow at Stand Together and former Chief Technologist at the Federal Trade Commission. His new book, "Getting Out of Control: Emergent Leadership in a Complex World," will be released on September 23.

Another bullshit forfeiture has attracted national press attention. This one has some added bonuses, like local cops stating on (body cam) that the easiest way to get their hands on the seized money would be to ask the feds to come in.It's the usual stuff: a pretextual stop, a bunch of questions unrelated to the alleged violation, and the theft of a person's money based on nothing more than an officer's speculation about its origin. (alternate link)

We're going to have to do this again up front because I know how this is going to go over among some: even if you think Amazon is the root of all evil, and Senator Elizabeth Warren truly is the greatest Senator in the last century, that does not mean that she gets to ignore the Constitution. We had this issue earlier this year when Warren threatened to punish Amazon for its constitutionally protected speech, and now she's going even further. She has sent a letter to new Amazon CEO Andy Jassy to complain about the fact that there are some books on Amazon that have dangerous mis- and disinformation about COVID-19 and various treatments and vaccines. And, yes, I recognize just as well as you do how dangerous that kind of mis- and disinformation can be. But, whether you like it or not, that mis- and disinformation is almost certainly protected by the 1st Amendment. And Warren ignores all that and implies that Amazon hosting this material is potentially "unlawful." It's not and threatening Amazon for carrying it is a huge 1st Amendment issue.

Earlier this year, the Florida state legislature passed a law that turned protesting into a crime by expanding the definition of "riot" to make peaceful protesters culpable for the actions of those actually engaged in rioting. It refused bail to those arrested at protests and the term "aggravated rioting" was expanded enough to cover any gathering of more than nine people that blocked any road.As soon as the law went into effect, it was deployed against protesters. But only certain protesters. Those involved in Black Lives Matter/anti-police brutality protests were targeted, but Cuban solidarity protesters were not only allowed to block traffic without being arrested, they were actually allowed onto freeway access ramps by police officers.The law was immediately challenged by a number of groups when it went into effect. The Florida NAACP, Black Lives Matter Alliance Broward, and Dream Defenders sued to have the law blocked and declared unconstitutional. Thanks to a Florida federal court, they have obtained the injunction they were seeking.The injunction order [PDF], written by Judge Mark Walker, opens with a brief recounting of how riot laws have historically been deployed to assist the government in enforcing segregation and other racists policies.

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Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we've been writing a fair bit about the lawsuit Nunes' family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There's been more nonsense since we last wrote about it, but I'm kind of waiting on the judge to actually rule before I go into the details.Still, if you'll recall, there were actually two separate lawsuits here. The one we've been writing about was filed by Nunes' family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it's there.

Documents obtained via public records requests by the Brennan Center reveal the Los Angeles Police Department has made social media part of its everyday business. The LAPD is wholly embracing the 21st century. This doesn't mean its public relations department is making the most of numerous platforms to address citizens' concerns and engage in more transparency.No, it just means LAPD officers can be just as stalker-ish as disgruntled exes or future employers.

We've been covering the lawsuit brought by The Girl Scouts of America against Scouts BSA, formerly The Boy Scouts of America, for some time. In the two posts that covered the suit, the GSA has alleged all kinds of very real confusion in the marketplace for female scoutting as a result of the branding change by Scouts BSA, which include:

Summary: Many social networks have enabled users to use a pseudonym as their identity on that network. Since users could use whatever name they wanted, they could pretend to be someone else, creating certain challenges for those platforms. For example, for sites that allowed such pseudonyms, how would they identify who the actual person was and who was merely an impostor? Some companies, such as Facebook, went the route of requiring users to use their real names. Twitter went another way, allowing pseudonyms.But what can a company do when there are multiple accounts of the same, often famous, person?In 2009, Twitter began experimenting with a program to “verify” celebrities.The initial intent of this program was to identify which Twitter account actually belongs to the person or organization of that Twitter handle (or name). Twitter’s announcement of this feature explains it in straightforward terms:

The narrative du jour is that Elon Musk's companies are just so damn innovative that they don't have to adhere to basic norms. His companies don't need a functioning PR department, for example, because Musk is just so damn charming on Twitter. As you may have noticed, this narrative isn't always particularly accurate.Take Starlink, Musk's attempt to disrupt telecom with low orbit satellites providing pretty impressive broadband speeds. The service remains in beta, and because there's limited satellite capacity (an unfortunate side effect of physics), it won't be able to provide service to more than say 500-800k subscribers for some time (for scale: 42 million lack broadband and 83 million live under a broadband monopoly). So needless to say, those slots are going to be relatively precious for folks out of the reach of traditional broadband who'll genuinely be helped by having a new option.The service, which provides speeds sometimes faster than 100 Mbps (at least on non-commercial beta network) costs $100 a month, plus a $500 equipment fee. But the users who say they plunked down $100 early this year aren't receiving any communication from the company... at all. Attempts to inquire where they are in the process or when they'll get a working satellite broadband terminal wind up being thrown into a void:

Being defensive when criticized is a very human trait. It's often the default response. And it's completely understandable. Very few people can suppress the urge to defend themselves -- or engage in retaliation -- when (as Tom Wolfe put it) their ego is stripped of its virginity. Like I said, it's a wholly human response.But when the target of criticism runs a multibillion-dollar trifecta of companies, kneejerk reactions should be tempered by the better judgment of presumably expensive legal teams who are there to do exactly this: cushion the blows of online criticism and temper the responses of their aggrieved employer.Monty Bennett -- a Trump donor with $2.2 billion in combined revenue from his hospitality holdings last year -- decided his businesses were small enough to grab some of the "small business" loans the government floated when the hospitality business fell off the cliff during the first few months of the COVID epidemic.As the coronavirus ravaged the United States, the pseudonymous "Doktor Zoom" wrote a highly critical post for Wonkette about Monty Bennett, the billion-dollar businessman who complained about being able to claim "only" $96 million in relief funds. Combining an amazing blend of resentment and entitlement, Bennett wrote a blog post complaining about the government's alleged unwillingness to foot more of the bill for big business like his.Meanwhile, Bennett -- the self-proclaimed victim of regulation and small business loan restrictions -- did this:

Dame Cressida Dick -- the former National Policing Lead for Counter-Terrorism -- has had an op-ed published by The Telegraph that leverages the anniversary of the 9/11 attacks to advocate for less privacy and security for routine targets of terrorist attacks: everyday people without powerful government positions.Writing from her latest official position -- that of Metropolitan Police Commissioner -- Dame Dick says the War on Terror can be won… sort of. (Paywalled but here's an alternate link.)

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

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

You may recall that about a year ago we discussed one man's attempt to digitize the game manuals for really old games. Notably, that project didn't appear to face any threats over copyright laws by the normal companies -- Nintendo, Konami, etc -- though that almost certainly was partially the result of the project not being a commercial endeavor, but a simple attempt at art preservation that would clearly be covered by fair use. But the overall point is that there is a thirst for this sort of thing, especially when you realize that some of these game manuals are endangered species, close to being lost for all eternity.Well, apparently there is at least one company out there that is not so keen on letting something similar to that go forward if it means anyone is going to collect money over it. A Kickstarter for hand-drawn recreations of the sorts of video game guides that were popular decades ago, which far exceeded its initial goal, voluntarily shut itself down after facing unspecified legal threats.

We were surprised, but pleased, when the US announced plans to support a patent waiver for COVID-19 treatments and vaccines (over Hollywood's strenuous objections). As you'll recall, the TRIPS agreement (an onerous, oppressive set of "intellectual property" rules that many countries have agreed to) includes a "waiver" process, in which the WTO will effectively waive international patent protection on certain patented items in an emergency situation. The COVID-19 crisis seemed to fit the exact intent of the waiver process, and yet there's been a lot of pushback from patent and copyright maximalists who hate the very idea of waiving copyright or patent monopoly rights on anything for any reason at all.Many of those against the waiver insisted that their reason for being against the waiver is that it wasn't patents that were holding up vaccines and treatments, but larger supply chain issues. They ignore, of course, that some of those supply chain issues are also because of overly aggressive intellectual property laws, or that both things can be true. Either way, Michael Rosen, who insisted that a waiver was a terrible idea, has now penned a piece for The Hill insisting that his view has proved correct because the waiver process has done nothing to help deal with COVID-19.Of course, the reason it's done nothing is because people like the author have been getting groups to protest the waiver and so it hasn't even been approved yet. I mean, the piece even admits that the problem here is not the waiver, so much as the slowness of the WTO in approving it.

No one does a coverup like a cop shop. When a bunch of data -- including criminal evidence -- was deleted, the Dallas, Texas city council was pretty much the last to know about it.

There are some really bizarre ideas out there -- and one that has popped up a bunch recently is the idea that fact checking is antithetical to free speech. We've seen a few faux "conservatives" arguing that fact checkers should be regulated and that they're not protected by the 1st Amendment. This is wrong of course. Fact checking is (1) speech, and (2) stating an opinion on the veracity of some other content. It's quintessential protected opinion.But, the most bizarrely stupid version of this argument was published recently in the Hill, by columnist Armstrong Williams, in a piece entitled: Uninhibited Speech is the Ultimate Weapon in the Fight Against Misinformation. You might think from this title that he would support fact checking -- which is part of that "uninhabited speech." Instead, he seems to think it's an infringement on rights.

Israeli digital arms merchant NSO Group continues to sell its malware to a wide variety of governments. The governments it sells to, which includes a bunch of notorious human rights abusers, continue to use these exploits to target dissidents, activists, journalists, religious leaders, and political opponents. And the manufacturers of the devices exploited by governments to harm people these governments don't like (NSO says "criminals and terrorists," long-term customers say "eh, whoever") continue to patch things up so these exploits no longer work.The circle of life continues. No sooner had longtime critic/investigator of NSO Group's exploits and activities -- Citizen Lab -- reported the Bahrain government was using "zero click" exploits to intercept communications and take control of targeted devices then a patch has arrived. Apple, whose devices were compromised using an exploit Citizen Lab has dubbed FORCEDENTRY, has responded to the somewhat surprising and altogether disturbing news that NSO has developed yet another exploit that requires no target interaction at all to deploy.

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Let's talk a bit about Rupert Murdoch. To his slight credit, in the early 2000s, he seemed to realize that the internet would be big for media. He also realized that he might be missing out. He went on an internet buying spree. It got to the point where Newsweek was praising Murdoch's "smart bets" on the internet. The cornerstone of Murdoch's digital empire was MySpace; a site that was once so dominant, the media insisted that no one could ever surpass it -- not even a dumpy little startup like Facebook.We all know how that all turned out. Within a few years, people realized that nearly every one of Murdoch's internet ventures was a total and complete flop (often embarrassingly so).Since then, it has seemed that Murdoch has been at war with the internet. The man who spent years using his various media properties to insist that we needed "less" government, and more "free market" wasted no opportunity to demand that the government step in and regulate, breakup, or tax the internet companies which out innovated Murdoch's News Corp. He's even been occasionally successful in getting governments to burden his competitors with ridiculous regulations.Over the last few years, Murdoch and News Corp. have been one of the leading voices attacking Section 230. Murdoch seems consistently angry at anything deemed good for the internet. News Corp. has been lobbying against Section 230. Fox News' most popular host, Tucker Carlson, regularly (if consistently ignorantly) rails against Section 230. Trump's attacks on Section 230 in 2020 were completely consistent with Murdoch's views.That's why we found it grimly ironic last week when an Australian court ruled that media companies could now be held liable for 3rd party comments on social media. This was an upside down version of Section 230 Down Under, that reached way beyond social media sites being liable. Instead, it made the news organizations that posted links on social media liable for the comments that came under them.I joked that perhaps Murdoch would finally realize why Section 230 was important, and it did not take long for News Corp. to demand that the law be changed to protect... organizations like News Corp. from some 3rd party liability:

Back in July, the Biden administration signed an executive order creating a new "competition council" tasked with taking a closer look at competition and monopoly issues in various business sectors. One of those sectors was telecom, which remains dominated by a handful of politically powerful regional monopolies, resulting in decades of spotty broadband service, high prices, and terrible customer service.Back in July, the council offered several bits of advice as to how this could be fixed, including forcing ISPs to provide more clear pricing data to government (allowing policymakers to clearly illustrate the harms of regional monopolies), forcing ISPs to be more transparent with consumers about sneaky fees and pricing, and the restoration of the FCC's consumer protection authority stripped away during the Trump-era net neutrality repeal:

At long last, Department of Justice agencies are joining the 21st century. Years after many local law enforcement agencies (with budgets that amount to rounding errors for DOJ components) have adopted body cameras, the DOJ is finally getting into the act.

Another magical drug dog case has surfaced, showing yet again why cops like having "probable cause on four legs" on hand to turn stops into searches and searches into seizures. This forfeiture motion [PDF] -- highlighted by Brad Heath -- starts with a stop and quickly devolves into ridiculousness.A drug investigation involving investigators working with ONSET (Ohio Northeast Smuggling Enforcement Team) culminated in the traffic stop of one of the targets, Emmanuel Trujillo Trujillo. Already suspected of drug trafficking, the stop got a whole lot more interesting for officers once some loose cash was spotted.

Judge Alex Kozinski noted back in 2015 there was an "epidemic of Brady violations" occurring during prosecutions in this country. "Brady" refers to the Supreme Court case Brady v. Maryland -- one that established the right for defendants to have access to exculpatory evidence, creating an obligation for prosecutors and law enforcement to produce this evidence during trials.Obviously, this hasn't been an absolute since this ruling. Prosecutors aren't interested in handing over evidence that undermines their cases. And cops are equally unwilling to produce evidence that undercuts their arrests, narratives, and coerced confessions.Here's how it works out for defendants, according to Judge Kozinski, while excoriating an appeals court decision that basically blessed Brady violations as long as the government still presented some inculpatory evidence.

I've never understood why so many doctors sue over bad reviews, but it just keeps happening. Dr. Muhammad Mirza has built up something of a reputation for suing people who leave bad reviews on Yelp -- and has been successful in stifling speech:

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida's similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and... it's bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn't a huge surprise since their arguments in the district court were also bad. But now that they've had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you'd think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.Still, I'd expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it's proven that social media platforms "arbitrarily discriminate against disfavored speakers" and uses a really bad example.

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A few years ago, Professor Eric Goldman wrote an important paper, explaining how Section 230 is better than the 1st Amendment. The key part of the argument is that if you treat Section 230 as a rule of civil procedure that kicks out frivolous and wasteful cases quickly, you realize how important it is.Last month, a federal district court in California dismissed Enigma Software's high profile lawsuit against Malwarebytes. You may have heard about this case. We've been covering it for years, and it even got some (dubious) attention at the Supreme Court, regarding Section 230. Enigma didn't like that Malwarebytes (and others) found Enigma's "SpyHunter" software to be sketchy itself and started suing. Malwarebytes initially won on Section 230 grounds, pointing out that its opinions on what is and what is not spyware is a moderation choice -- in this case protected by Section 230's rarely used (c)(2)'s immunity for content that the provider deems "otherwise objectionable."Unfortunately, the 9th Circuit reversed that ruling with a very weird opinion that seemed to contradict its own previous precedent. In that ruling, the 9th Circuit carved a new hole in (c)(2) arguing that you could lose 230 protections if there was an argument that the decision to block content (or call something spyware) was done "for anticompetitive reasons." From the ruling:

For twenty-five years now, U.S. broadband has been painfully mediocre in nearly every metric that matters thanks to regulatory capture (read: corruption) and limited competition. With the occasional exception, the U.S. policy solution to this problem has been to kiss the ass of regional telecom monopolies like AT&T and Comcast, throw billions of dollars at these companies for networks that they repeatedly fail to complete, then stand around with a dumb look on our collective faces wondering why we still don't have affordable, widely available, next-generation broadband access.But as COVID arrived, it brought with it a renewed focus on the problem, brought into stark relief by images of kids having to huddle in the dirt outside of Taco Bell just to attend class. And while these images did drive a lot of important changes -- like a temporary $50 broadband discount for low-income Americans, and the looming $65 billion infrastructure plan (assuming it passes) -- most of these solutions still didn't really target the real reason U.S. broadband is so painfully mediocre: regional monopolization and the state and federal corruption that protects it.Frustrated by 25 years of this cycle, local communities all over the U.S. keep taking things into their own hands. Data this week complied by the Institute For Local Self Reliance indicates that the number of community broadband networks jumped significantly over the last year, thanks largely due to COVID related annoyance at inadequate broadband:

A couple of months ago, the Government Accountability Office completed the first pass of its review of federal use of facial recognition technology. It found a lot to be concerned about, including the fact that agencies were using unproven tech (like Clearview's ethical nightmare of a product) and doing very little to ensure the tech was used responsibly.Some agencies appeared to have no internal oversight of facial recognition tech use, leading to agencies first telling the GAO no one was using the tech, only to update that answer to "more than 1,000 searches" when they had finished doing their first pass at due diligence.A more complete report [PDF] has been released by the GAO, which includes answers to several questions asked of federal agencies using the tech. Unfortunately, it confirms that many agencies are bypassing what little internal controls are in place by asking state and local agencies to run searches for them. DHS entities (CBP, ICE) did the most freelancing using downstream (governmentally-speaking) databases and tech.For whatever reason, CBP and ICE (which have access to their own tech) are using agencies in Ohio, Nebraska, Michigan, Kansas, and Missouri (among others) to run searches for criminal suspects and to "support operations." A whole lot of non-border states are allowing agencies to bypass internal restrictions on use of the tech.And there's a whole lot of Clearview use. Too much, in fact, considering the number of agencies using this highly questionable product exceeds zero.The US Air Force says it engaged in an "operational pilot" beginning in June 2020, utilizing Clearview to run searches on biometric information gathered with "mobile biometric devices, including phones."The Inspector General for the Department of Health and Human Services also apparently used Clearview. The report says the HHS OIG "conducted an evaluation of the system in an attempt to identify unknown subjects of a criminal investigation." Experimentation, but with the added bonus of possibly infringing on an innocent person's life and liberty!Also on the list are CBP, ICE, and US Secret Service. ICE appears to be the only agency actually purchasing Clearview licenses, spending a total of $214,000 in 2020. The CBP, however, is getting its Clearview for free, utilizing the New York State Intelligence Center's access to run searches. The Secret Service gave Clearview a test drive in 2019 but decided it wasn't worth buying.The Department of the Interior says it has both stopped and started using Clearview. Under "Accessed commercial FRT [facial recognition technology] system, the DOI claims:

This week, That One Guy dominated the leaderboards with three out of four spots — the top two comments for insightful, and the first place winner for funny. In both places on the insightful side, it's his comments on our post about GoDaddy banning the Texas abortion snitch site, starting with this response to the perennial observation that advocates of the "unborn" don't seem to care much about the born:

Five Years AgoThis week in 2016, AT&ampT was tapdancing around its DirecTV merger obligations and tiptoeing past a sleepy FCC's net neutrality rules — perhaps because the FCC was busy weakening its cable box reform plans in response to industry lobbying, although this didn't stop Comcast from still finding things to whine about, nor the MPAA from freaking out about the new plan. Warner Bros. managed to issue DMCA takedowns for its own website, Take Two won its publicity rights lawsuits against Lindsay Lohan and Karen Gravano, and Google screwed over a bunch of media websites. We took a closer look at why the Copyright Office acts as Hollywood's lobbying arm, while a terrible ruling in the EU said that mere links can be direct infringement.Ten Years AgoThis week in 2011, the MPAA was so thrilled with the Zediva ruling that it was offering to help the court spread it around, and was also busy pushing bogus piracy numbers that suggested pirates would buy 200 more DVDs per year if they couldn't download stuff. France was placing copyright above human rights, Sweden was dismantling its online civil rights at the behest of US content industries, a Russian bureaucrat was calling for Google and Youtube to be shut down for facilitating infringement, a Canadian politician turned out to have secretly asked the US to ramp up diplomatic pressure for more draconian copyright laws, and Europe was adopting a copyright strategy that would see Europeans send as much money as possible to US companies — while also seizing the public domain by retroactively extending copyright. EMI was getting desperate with legal theories about pre-1972 songs, the RIAA was sending DMCA takedowns over free music being distributed directly from the Universal Music website, and Puerto 80 was continuing its fight over the DOJ's domain seizures.Fifteen Years AgoThis week in 2006, a patent dispute had the bizarre effect of forcing SanDisk to only show photos of a new MP3 player at a trade show, though the company managed to get the injunction overturned when it was too late. Clear Channel was fighting for relaxed rules so it could buy up even more radio stations, newspapers were still really struggling to understand the internet, and magazines were fumbling around trying to cash in on the online video craze. EMI was freaking out and demanding IP addresses over a popular new Beatles/Beach Boys mashup, while a settlement with Bertlesmann over its Napster investment was poised to make things complicated for investors. And we also had another of our early posts talking about Section 230 back when it was a relatively obscure law to most people, rather than a well-known political football (not that broad understanding of how it works has actually improved much since then).

For some reason, it seems that there is an industry issue heating up among video game developers and publishers over their modding communities. We've begun to see a flurry of stories on the topic lately and perhaps the most impressive thing about those stories is how wildly binary they are. Nintendo tends to Nintendo, for instance, where control is valued over building a community of fans. Other publishers, like CD Projekt Red and Bethesda go the completely opposite direction and not only embrace the modding communities for their games, but also sometimes simply hire talented modders directly to their payroll.Take-Two Interactive, the publishers of the Grand Theft Auto franchise and the subject of this post, has a history of bullying ambitious modders into shutting down. The company has recently put this practice into overdrive, going after all kinds of modding teams working on current and past GTA games, with the speculation being that it's all being done because of a forthcoming remaster of some of those older games.Well, the hostility has gotten bad enough that some fan-run projects are simply shutting down before the legal threats start flying. That appears to be the case with an incredibly ambitious mod for GTA: San Andreas.

A month ago, we wrote about a perplexing (and dangerous) decision down in Australia ruling that an AI can be listed as the inventor of a patent. As we had explained, there was a concerted effort by a small group patent lawyers and this one dude, Stephen Thaler, to seek out patents for "inventions" that an AI created by Thaler called Dabus ("device for the autonomous bootstrapping of unified sentience"). As we explained in that and earlier posts, the entire point of the patent system is to provide incentives to humans to invent. An AI does not need such incentives. As we've highlighted in the past, the USPTO and the EU patent office have both rejected AI-generated patents. Australia's patent office had done the same, but a judge there rejected that and said an AI could be listed as an inventor.All of these situations involve Thaler/DABUS, as did a new ruling in the US which... thankfully has rejected the idea that an AI deserves patents after Thaler filed a lawsuit because of the USPTO rejection. I think there's a separate issue here: which is what standing does Thaler have in the first place? If the argument is that "DABUS" is the inventor, it seems that... um... only DABUS should have the necessary standing to challenge the rejection of its patent application. The fact that Thaler thinks he has standing more or less shows how ridiculous the entire claim is in the first place.After going through the background of the case, and discussing what level of deference the USPTO deserves, Judge Leonie Brinkema gets straight to the actual point, which is pretty simple: AI doesn't get a patent.

It's rare enough to see a law enforcement officer convicted of murder. It's even rarer to see it happen twice in one year.In June, Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd. Chauvin placed his knee on the neck of the unarmed, unresisting Floyd for more than nine minutes -- and for two minutes after another officer said he couldn't detect a pulse. For this brutal act -- one that prompted months of heated protests around the nation -- Chauvin was sentenced to twenty-two years in prison.It has happened again. A Huntsville, Alabama police officer has been convicted on murder charges and sentenced to 25 years in prison.

ProtonMail has long advertised itself as a particularly privacy-conscious email service. The free end-to-end encrypted email service promises more privacy and security than many of its competitors. But there are limits. ProtonMail operates out of Switzerland, making it subject to that country's laws (which, to be fair, are hardly draconian). It also (at least temporarily) retains a certain amount of information about users' emails -- metadata that can be used to verify accounts in the case of a lost password.And while email between ProtonMail accounts is encrypted, the same protection isn't applied to emails between services, like communications sent to or from ProtonMail from other email services. This is an understandable limitation, which is why many seeking secure communications have moved to encrypted messaging services, rather than email offerings that collect metadata about communications.These inherent weaknesses have been exploited by French law enforcement to obtain information about a French activist -- something it achieved with the assistance of Swiss authorities.

You've likely heard by now that Facebook has launched their own version of sunglasses with a built-in camera, in partnership with Ray Ban, called "Ray Ban Stories" (because, seriously, which brand is cooler right now? Facebook? Or Ray Ban?). Lots of people are comparing it to the failed disaster that was Google Glass (which gave rise to the term "Glassholes") or SnapChat's similar product, and lots of people are calling out the potential privacy issues associated with these snoopervision glasses. To be honest, personally I feel like at least some of those concerns are typical moral panics, akin to people freaking out when the camera itself was invented, such as this story about early Kodak cameras:

If there's something that's been made clear over the last year or so in the world of antitrust it's that just because some people don't like big companies and their practices, that doesn't mean it's an antitrust violation. It rarely is. In the well, rather epic lawsuit that Epic brought against Apple, we initially described it as a contract negotiation by lawsuit and predicted that it didn't seem likely to actually meet the bar for an antitrust violation. It seems that District Court Judge Yvonne Gonzalez Rogers agreed with us, rejecting the antitrust claims entirely. As the judge wrote:

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