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The administrators of the University of Iowa have just learned a hard (and possibly expensive) lesson about free speech. Of course, as a publicly-funded university, it will be the taxpayers that foot the bill, but hopefully this recent Eighth Circuit Appeals Court decision [PDF] will head off future extractions of tax dollars from people who didn't violate anyone's rights.This decision affirms the lower court's determination that the University of Iowa's decision to make a Chiristian student group align itself with the university's ideals was a violation of the group's First Amendment rights. Here's Rox Laird with the background for Courthouse News Service.

If you were to simply input the word "magenta" into the search bar at the top of Techdirt, you will note that two company names seem to keep coming up in the articles: T-Mobile and its parent company Deutsche Telekom. This is because those two companies have been incredibly annoying at with their nonstop bullying of other companies, often in entirely unrelated industries, for daring to use the color magenta in their branding. While some will want to argue that very specific colors can definitely be trademarked, this misunderstands how T-Mobile and DT operate, which is to threaten plenty of companies that use a similar purple color and those that use magenta but in different marketplaces. Notably for the purposes of this post, much of this trademark bullying has occurred in Europe, though not all of it. The point is that DT is a trademark bully when it comes to the color magenta and everyone knows it.Which is what makes it disappointing to see a company like Splunk lose its ability to sue DT in America to have its use of magenta declared non-infringing solely because it has thus far only been bullied in Germany.

Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

Freedom of speech sits at the intersection of so many of the topics we write about here on Techdirt, and some of our favorite podcast guests are true experts on the subject. One such guest is UCI Law Professor and former UN Special Rapporteur on freedom of expression David Kaye, who joins us again for this week's episode and a wide-ranging discussion about some of the most pressing and current free speech issues.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.

Over the last few weeks there's been a weird, wasteful, and just silly dispute in which the White House has tried to blame Facebook (and misinformation on Facebook) for not enough people agreeing to get vaccinated against COVID-19 (in light of cases ramping up again). Things have gotten so stupid that two Senators have released a terribly unconstitutional bill attempting to hold Facebook liable for "health misinformation" on its platform.But... is Facebook actually to blame? Mark Zuckerberg (who, um, is obviously not an unbiased party) made a completely valid point in response to all of this: Facebook is available around the globe, yet much of the rest of the world is not seeing the same levels of vaccine hesitancy (indeed, the problem elsewhere tends to be a lack of supply), and that might raise questions as to why Facebook is facing the blame for vaccine hesitancy.

This is a sponsored post. For everyone who subscribes to the free IBM Tech Policy Lab email newsletter via our link, Techdirt receives a small commission. We would not offer this if we didn't actually believe in the value of the newsletter itself, but this is very much sponsored content.If you're a reader of Techdirt, then you're probably deeply interested in tech policy issues. Questions around tech policy have become more and more central over the last few years. Unfortunately, much of the discussion around tech policy is (to put it mildly) not particularly well informed. Last year, IBM launched its IBM Policy Lab as an attempt to build a place to bring together smart thinkers regarding tech and policy -- and to take a long term view on what is the best policy for innovation going forward. There are some really great people behind the project.The IBM Policy Lab includes various policy papers, live events, and discussions on important tech policy issues, and the best way to keep up with what they're talking about is to subscribe to the newsletter. We may not always agree with the recommendations that come out of the IBM Policy Lab, but it has become a good place to really explore some key issues regarding technology and policy in a forward-looking manner.

Last year, Candace Owens (former Turning Point USA's communications director and current "conservative" author/commentator) sued both USA Today and Lead Stories LLC over fact-checking services they provide to Facebook. Owens claimed the labelling of her COVID-related Facebook posts as misinformation caused her to lose ad revenue and hampered her ability to promote her new book.Here's the background on the case from ABC News (which chose not to publish the court document, so here's a link to Justia, which did):

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Hoping to capitalize on legitimate animosity against "big tech," AT&T lobbyists and policy makers have been busy recirculating a fifteen-year-old talking point. Namely, that big tech companies should throw billions of dollars at big telecom companies to subsidize their broadband deployments. The argument that AT&T has been pushing since 2004 or so is that since big tech companies get a "free ride" on telecom networks (which has never been true), they should pay telecom giants billions of additional dollars... just because.The argument never made any coherent sense. Tech giants like Netflix and Google pay not only billions of dollars for bandwidth, they also pay billions of additional dollars in cloud, transit, CDN, and other broadband infrastructure. Telecom giants also do this, but they also receive billions upon billions in taxpayer subsidies in exchange for networks that are always mysteriously half-delivered. There's not a day that goes by where some telecom company is getting ridiculous sums of money for projects that don't make sense or simply never get deployed. So if you were serious about reform on this front, that would be the place to start.Instead, AT&T has asked captured regulators like FCC Commissioner Brendan Carr to push for a broadband tax on tech. Carr recently pushed the idea in a an editorial over in a Newsweek Op/Ed, and since then outlets from CNET to Axios have been parroting the idea as if it's a good faith effort. It's not. It's an AT&T policy and lobbying missive being dressed up as a legitimate idea by corrupt lawmakers and regulators.Now, Senators Roger Wicker, Shelley Moore Capito, and Todd Young have introduced a doomed bit of legislation dubbed the Funding Affordable Internet with Reliable (FAIR) Contributions Act. It too suggests that "big tech" has gotten a "free ride" on US telecom networks and should be subject to a new tax to fund broadband deployments:

If you'd like some more anecdotal evidence about the useless and general disconnectedness of police unions, have I got something for you. We all know police unions take the worst aspects of policing and amplify them. We know they fearlessly defend even the worst officers from lawsuits, firings, and public criticism. We know they're the main barricade to true accountability, having tied up most cities in protracted legal language that allows cops to do all they can to avoid being fired and, in the off-chance they do get canned, get their jobs back via the arbitration process.Via the Free Thought Project comes this painful howler of a story -- one that involves a police union, an officer awaiting discipline, and an annual award for the top cop in the city. Here's how it went down, as explained by Joe Nelson of the San Gabriel Valley Tribune:

We recently discussed the case of a man who thought Facebook owed him $10 million per day in damages for moderating his posts in which he deployed the n-word. According to this person, Facebook violated about half of the Constitutional amendments when it decided -- as a private company -- that it would not serve as the plaintiff's bullhorn while he shouted racist terms in a crowded social media platform.But that was a pro se lawsuit, one the plaintiff -- with no legal training or expertise (despite listing himself as "attorney-in-fact" on his Facebook profile) -- thought would net him millions of dollars a day for being nothing more than his hateful self.This lawsuit [PDF], however, has an actual lawyer behind it. And by actual lawyer, I mean a lawyer whose representation may be less useful than no representation at all. The lawyer helping the plaintiff bring this constitutional violation lawsuit against Twitter is David Yerushalmi, perhaps best know for being a bit bigoted himself.

Last week, KGW8 had an incredible story about how a couple in Vancouver, Washington were sued after leaving a 1-star review for Executive Roof Services (ERS). The defendants in the lawsuit, Autumn Knepper and Adam Marsh, were (reasonably!) annoyed about the treatment they received from the firm after their landlord had asked ERS to check out the roof to the house, after the couple found it leaking. The experience they had with ERS was not great:

This bill is so bad it was worth a second post.There is a reason that the Constitution contains the provision, "Congress shall make no law […] abridging the freedom of speech." And this new bill proposed by Senator Klobuchar (who really should know better) gets at the heart of it. Because what her bill would do is make a law that, at its core, pointedly interferes with freedom of speech by allowing the government to penalize certain expression. And there is absolutely no reason to believe that its choices for which speech to favor will be sound and healthy ones for society. In fact, given the performance of the previous presidential administration, there's plenty of reason to believe the result would be the exact opposite.The mechanics of this interference are fairly straight forward. Her bill, "The Health Misinformation Act of 2021," would condition Section 230's platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms' First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty.The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it's not an inherently corrupt goal she's trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic.But there's nothing about the bill that confines it to such benevolent purpose. There can't be, because that's not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong.And we know it gets things wrong. It has gotten things wrong even just with respect to this particular health crisis that the bill is supposedly limited to. At best it made innocent mistakes, like when it discouraged masks early on in the pandemic. But then there were people in the highest offices of government touting hydroxychloroquine snake oil and discouraging social distancing. There are still people in government discouraging vaccines. How can we possibly have a law where the government gets to decide what speech is favored or not when the government itself has, even within the very same health crisis that this bill is supposedly limited to, been so conspicuously unable to reliably make those choices competently? This crisis has already outlasted one administration, and while this one might like to keep people alive with credible, scientific information, the last one did not, and who knows what might be in store with the next one. But this bill would empower a Trump Administration as much as a Biden Administration to take away the right and ability of the public to speak out against its mistakes, no matter how deadly they may be. Because a government that can force platforms to only allow, for example, pro-vaccine messages on its systems can just as easily disallow them as well. And if it does, people will die.Furthermore, if a bill like this could be allowed for this crisis, it could be allowed for any. The government can always articulate some reason for why free expression needs to be curtailed. And throughout history it has regularly tried. A law like this, if it could get on the books, would signal it to keep trying on every policy issue that can possibly bear on our lives and the security and stability of our country – which is effectively all of them. Because today it's health misinformation the government is unhappy about. Tomorrow it could be elections. Policing. Terrorism. The draft. Even potentially something as banal as tax policy. There's always a reason the government can cite for why society should not be exposed to ideas out-of-step with what it has decided are the better ones.But it's the people's job to decide, not the government's. Per the constitution, it's not allowed to be the government's job. The Founders got the government out of the business of choosing which views could be permitted which could be punished with its "make no law" admonishment because there is no way for the government to pick the winners and losers in the marketplace of ideas and not risk serious damage to discourse, and with it the democracy that depends on it.And everyone in government needs to remember that.

This truly is a pleasure to observe. Israeli malware merchant NSO Group -- the purveyor of powerful spyware capable of turning a target's phone into a spy agency's plaything -- is playing a whole lot of defense after leaked data seen by a number of journalists and activists appears to confirm that NSO's customers are targeting… activists and journalists. (And world leaders, religious leaders, NGO employees, and friends and relatives of all of the above…)While the origin of this data remains unclear, it appears to be related to NSO and its customers. And although NSO claims to be very selective about who it sells this powerful spyware to, its customers include governments of questionable character, including Saudi Arabia, United Arab Emirates, Mexico, Kazakhstan, and Uzbekistan.This has thrust Shalev Hulio, the CEO and co-founder of NSO Group, into the limelight. He's clearly unprepared to be there. His statements and responses to questions are, at best, contradictory. At worst, they're nothing more than deflections that aren't going to persuade anyone that the allegations made by several news agencies and rights groups are false.Here's Hulio's attempt (in an interview with Calcalist) to explain that the list of 50,000 phone numbers couldn't possibly have anything to do with NSO Group:

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It's not a new thing that those without any experience in content moderation assume that it's somehow "easy" to just find and delete misinformation and disinformation online -- but it's often stunning how little they've thought through how all of this plays out. As the White House has stupidly been using its bully pulpit to pressure Facebook into deleting anti-vax misinformation, and elected officials are threatening legislation they must know is unconstitutional, none of them seem to recognize that it's not that easy.Anyone who has done any work related to content moderation knows this. They know that the vast majority of misinformation is not that easy to spot. First of all, it's not clear what is misinformation. You could have someone who gets something inadvertently wrong. Or, perhaps they just misread something or misunderstand something. Is that misinformation that needs to be deleted? Also, there are things like sarcasm or criticism that frequently repeat the misinformation in order to respond to it. Then there are plenty of things that may seem like misinformation but tend to just be people posting stuff that is technically true, but without the necessary context. Does that need to also be deleted? There are tons of degrees involved in misinformation, and figuring out what should stay up and what should be taken down is not nearly as easy as many commentators make it out to be.But, on top of that, there's the simple fact that those spreading misinformation know that they may face consequences for it, and thus they adapt their techniques. Ben Collins & Brandy Zadrozny, NBC News' two excellent reporters who focus on misinformation, are noting that anti-vax groups on Facebook are effectively trying to cover their tracks in advance of any possible crackdown on the nonsense and propaganda they spew:

Five Years AgoThis week in 2016, Cy Vance was still arguing for mandated encryption backdoors with an unconvincing legal argument, while Apple was snubbing John McCain's attempts to drag them in to hear complaints about encryption, and a former Homeland Security advisor was trying to place the burden of proving backdoors are bad on tech companies. An important ruling in California reaffirmed Section 230 protections in a lawsuit against Yelp, a judge smacked down the DOJ for being lazy about fulfilling FOIA requests, and the EFF was challenging the DMCA's anti-circumvention provisions on first amendment grounds.Ten Years AgoThough there were a few things going on this week in 2011, like the continuing fight over the PROTECT IP Act, it's worth focusing on the story that was infuriating at the time and which we now know was the beginning of a terrible tragedy. This was the week that the feds charged Aaron Swartz with felony hacking for downloading JSTOR articles. The indictment was immediately huge news, and closer inspection raised lots of questions (including the curious lack of a copyright angle to the charges — though that didn't stop the Copyright Alliance from weighing in with a post full of bad analogies). Soon it became clear that the indictment lacked any real legal or moral basis to an extremely troubling degree, and the internet began fighting back by uploading JSTOR articles to file sharing sites. Sadly, this wasn't the end of the story, and there will be more to come in future weeks.Fifteen Years AgoThis week in 2006, CBS was attempting a desperate strategy of selling DVDs of old news clips, Wal-Mart was making an equally desperate attempt to launch a social media network, and some quacks were claiming that iPods cause autism. A court reaffirmed that the DMCA cannot be used to block third-party repairs, MySpace was struggling to make a profit, and a printer company got in trouble for abusing trademark to block competition. We also saw a rare (in those days, and to some degree still) honest debate about net neutrality, as well as the much-anticipated opening of the floodgates on YouTube copyright lawsuits.

The state of Maine recently enacted the strictest facial recognition limitations in the country, prohibiting the use of the tech in most areas of the government and preventing state law enforcement from acquiring it. The tech can still be used, but all searches must be run through either the FBI or the state's database via the Bureau of Motor Vehicles. Citizens who believe they've been unlawfully subjected to facial recognition tech can sue state agencies for violations of the law.Maine continues to increase protections for its residents. As C.J. Ciaramella reports for Reason, the state has just ended civil asset forfeiture.

One of the bigger bright spots in the last few years of often thorny or downright ridiculous policy debates has been the continued ascension of the right to repair movement. Whether it's Apple's wasteful restrictions or bullying of independent repair shops, Sony and Microsoft's efforts to monopolize game console repair, or John Deere's efforts to drive up repair costs for tractor owners, "right to repair" as a movement was born out of a genuine and bipartisan public annoyance at repair monopolies, obnoxious DRM, and self-service restrictions related to tools, documentation, and parts.And despite Apple and friends' best attempt to smear the movement as some dangerous and diabolical cabal only of use to sexual predators, its popularity shows no signs of slowing down. There's legislation pending on both the federal level and in two-dozen states. Prompted by an FTC report showing industry opposition to the movement is largely fluff and nonsense, the Biden administration recently issued an executive order urging the FTC to do more. And now the FTC, with a bipartisan vote of 5-0, has adopted a new policy paper (pdf) and says it will take tougher action against illegal repair restrictions:

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.A couple weeks ago, President Biden signed an executive order focused on promoting competition in the interests of American businesses, workers, and consumers, emphasizing the need to tackle high prescription drug prices that harm 1 in 4 Americans. Earlier this year, the President also signed an executive order to increase racial equity across all federal agencies.Few agencies are as ripe for this kind of transformation as the U.S. Patent and Trademark Office (PTO)—the federal agency that oversees patents, trademarks, and designs.The PTO’s work, which has often escaped scrutiny, is directly linked to issues of equity and rising prescription drug costs. As health and economic justice attorneys, we’ve worked for nearly two decades to increase equity in drug development and access, and have spent countless hours learning from patients, patent offices, community leaders, public health professionals, policymakers, scientists, economists and more. Based on our learnings from those most directly affected by the patent system, we offer ten actions the federal government should take to answer the President’s calls to promote competition and advance equity across government that can transform the patent system in the public’s interest.1. Amend the PTO’s mission to include equityEquity doesn’t currently factor into the PTO’s decision making or operations, and that’s no accident. Advancing equity is not part of the agency’s mandate so equity concerns are not considered relevant. The PTO’s mandate relies instead on this theory of change: granting intellectual property rights will spur innovation and economic growth, and people will be better off. This assumption has gone virtually unchallenged in the last 40 years, with no critical look at whether the current model is producing its intended benefits for everyone. And as America grapples with a drug pricing crisis, and vaccine nationalism threatens the global Covid-19 recovery, the consequences of this framework are becoming increasingly clear . If President Biden is truly serious about embedding equity into every agency, we will see the new PTO director amend the agency’s mission accordingly. The agency’s ability (and willingness) to implement the recommendations that follow will depend in large part on equity officially becoming part of its mandate.2. Collect demographic dataThe patent system has a long history of denying Black people opportunities for economic mobility. Even today, research by economist Dr. Lisa Cook indicates that less than one percent of patent holders are Black. In addition to racial inequities, gender inequities are present at the PTO. Women represent only 18 percent of patent holders, and leading economists predict it will still take 118 years to achieve gender parity in the patent system. We know about these disparities from academic studies and not from the PTO, which doesn’t track demographic data. Earlier this year, the bipartisan IDEA Act passed out of the Senate’s Judiciary Committee and companion legislation is pending in the House. This legislation would require the PTO to collect demographic information about applicants. Previously introduced in 2019, the bill’s advancement in this Congress is promising, but doesn’t guarantee passage given the political gridlock plaguing DC. In the meantime — since it can’t fix what it doesn’t measure — the incoming PTO director could voluntarily start collecting this data.3. Redefine the “customer”The charter of the PTO’s Public Advisory Committee, which advises the director on patent and operational issues, states that the Committee must “represent the interests of diverse users of the USPTO.” But the PTO defines its users narrowly, as the entities or individuals using the system for patents and trademarks. As a result, the Committee is composed primarily of representatives from corporations. People with non-commercial perspectives—members of historically marginalized communities, public health experts, and patient advocates—who have a tremendous stake in how monopolies operate, for example, don’t traditionally have a voice in decision making. That naturally leads to a system in which the public interest is overshadowed by commercial concerns. The PTO should redefine its customer base to include not just those who are directly applying for patents and trademarks, but also those whose lives stand to be fundamentally altered by these decisions. The deadline recently passed on the PTO’s request for nominations for new Committee members; the time is especially ripe for it to bring in new voices to better represent the public’s perspectives.4. Raise the bar for what gets patentedOver the last 30 years, more and more patents have been sought and granted for things that aren’t novel inventions. Recent controversies illustrate the point well: these patents are often sought and granted for products derived from ancestral knowledge from countries with predominantly Black and Brown populations—the Colombian sweetener panela, or baby wraps, for example. The PTO should not be granting patents for knowledge appropriated from beyond America’s borders.The consequences of setting the bar too low have been dire. 13% of Americans report losing a loved one in the last five years due to high drug costs, and people of color are twice as likely to have lost someone. Patent monopolies, which are increasingly being used to block competition, are a root cause of this crisis, and between 2006 and 2016, the number of drug patents doubled. Our research demonstrates that the ten best-selling drugs in America each have on average 131 patent applications, and monopoly protection of up to 38 years. At the same time, nearly 8 out of 10 medicines associated with new drug patents are for existing medicines, like insulin or aspirin, rather than new ones. The longer the monopoly on a single medicine remains, the longer prices stay high or continue to rise.It’s long past time to raise the bar so that only things that are truly inventive are rewarded with a patent. For example, combining existing drugs or switching dosages should not receive additional patent protection. The administration could recommend that Congress amend the patent law to prevent weak patents from being granted.5. Change the PTO’s financial incentivesThe majority of the PTO’s funding comes from fees paid only if a patent is granted, which means the agency’s revenue is directly linked to the number of patents it grants. This creates a financial incentive to grant as many patents as possible, even if claims to inventiveness are weak.At least one study found that the PTO grants patents at higher rates when revenue is strained, suggesting that patent decisions are being influenced by factors other than inventiveness. Over the last decade, over 40 percent of patents challenged after having been granted are invalidated either in whole or in part. Research shows that the push to grant ever-more patents puts a strain on patent examiners, who have less and less time to conduct a thorough review (today, the average patent review time is just 19 hours). Over the last 27 years, the PTO has granted as many patents as it had in the previous 155 years. The proliferation of low-quality patents harms people in a range of different ways, including driving up prescription drug costs.The administration could investigate the link between revenue shortfalls at the PTO and the volume of patents being granted, and evaluate alternative funding streams for the PTO so that the agency’s financial sustainability isn’t tied to the volume of patents that it grants.6. Modernize laws that are not serving the greater public goodThe Bayh-Dole Act, the Hatch-Waxman Act, and the Federal Courts Act were enacted to increase innovation and economic growth. But these laws have also enabled the corporatization of medical research in ways that are deeply harmful to the public. For example, publicly funded research in universities is regularly transferred to pharmaceutical companies with few, if any, conditions to assure access to the resulting medical products. The public ends up paying twice—with tax dollars used for publicly-funded research and development, and through the often exorbitant price paid at the pharmacy. These outdated laws and other legal rulings have resulted in everything from skyrocketing drug costs, to the non-consensual appropriation of tissue from Americans like Henrietta Lacks and John Moore. (Their stories, and the ethical questions they raise, have been explored in-depth by bioethicist Harriet Washington).The administration should establish a White House task force to assess how societal harm has offset the desired gains from these 1980s-era laws. The task force should include dedicated staff with a mix of patent and equity expertise, including staff from the Federal Trade Commission, the White House Office of Science and Technology Policy, the National Economic Council, and the Council of Economic Advisors. Ultimately, the task force would produce a report that examines the underlying impacts of these laws, and provide recommendations for legislative and executive action that would reform the patent system to enhance benefits to society.7. Reduce the cost of patent challengesChallenging a patent can be prohibitively expensive. Filing fees alone cost upward of $41,500 per patent, compared to the significantly lower financial cost of filing patent challenges in Europe and elsewhere.In a system heavily weighted in favor of commercial actors, legally challenging harmful patent monopolies that may have been incorrectly granted is one of the only avenues for creating equity in the market.We know this from firsthand experience. Our organization has, in collaboration with patient advocacy groups around the world, successfully mounted legal challenges to unjust patents. These challenges have made the market more competitive, saved health systems billions of dollars, and made medicines more accessible to millions of people across Africa, Asia, and Latin America. Americans deserve the same opportunities to participate in a system that directly affects their health and wellbeing. The PTO should bring its practices in line with other patent offices worldwide and reduce the financial costs associated with challenging a patent.8. Reverse “discretionary denial” policiesBipartisan legislation passed in 2011 allowed any person to mount administrative challenges to patents after they were granted. Since then, opponents have repeatedly sought to weaken the authority of the Patent Trial and Appeal Board (PTAB), the body tasked with reviewing patent challenges. For example, the most recent PTO director, Andre Iancu, restricted participation by expanding the circumstances in which the agency could unilaterally decline to review patent challenges. “Discretionary denials,” as they are called, were rare in 2016 but have surged in recent years. Blocking access to one of the agency’s already limited avenues for public participation will lead to more weak patents, undeserved monopoly power for corporations, and less access to medicines and other goods that benefit public wellbeing. The administration should reverse recent policies that effectively shut the door on public participation in the patent system, and accept more challenges to weak patents.9. Support and invest in increasing access to COVID-19 medical productsWealthy governments have swallowed up the vast majority of existing COVID-19 vaccines stock, leaving countries with predominantly Black or Brown populations virtually nothing. More than 85 lower-income countries will not have widespread access to coronavirus vaccines until 2023, which increases the risk that new vaccine-resistant variants will emerge. Indonesia and twenty African countries are the latest to feel the crushing blow of the pandemic as they face an overwhelming surge of cases without the resources and tools necessary to avoid preventable hospitalizations and deaths. These inequities are echoes of the early HIV/AIDS epidemic, a moral failure in which medicines existed to save people’s lives but were inaccessible to the vast majority of high-burden countries in the Global South.The World Trade Organization (WTO) is currently considering a proposal by South Africa and India to waive certain intellectual property provisions related to the “prevention, containment and treatment of COVID-19.” The U.S. has already voiced its support for the waiver, which if adopted would allow drugmakers in other countries to manufacture desperately needed vaccine supply and other medical products. While the waiver negotiations continue to unfold, the U.S. should remain a steadfast champion of global access to COVID-19 medical products—including vaccines—and press further. It should also compel U.S. pharmaceutical companies that used taxpayer funding to develop a vaccine to share that technology and know-how with manufacturers in other countries. These measures would set a precedent for global cooperation that would end the current pandemic sooner, and better prepare us for the next one.10. Create a new Office of Technology AssessmentNew technologies, like artificial intelligence and gene editing, are raising urgent questions about ownership, inventiveness, equity, and ethics. In Congressional testimony, Dr. Shobita Parthasarathy, a professor of public policy at the University of Michigan, outlined the need to incorporate equity considerations earlier and more robustly into the innovation pipeline. President Biden should request sufficient funding for a new Office of Technology Assessment in their annual budget request to Congress (an office of the same name was defunded in 1995). Rampant misinformation on Facebook, disparities in the use of facial recognition software, and other ramifications of emerging science and technology underscore the need for a body dedicated to preventing prospective future harm. This reimagined office would engage experts and members of the public to better understand the potential consequences of new technologies, and advise the administration and Congress on how to mitigate inequitable and other socially damaging outcomes.ConclusionAs the Administration commits to increasing equity and lowering drug prices, it cannot do so without transforming our nation’s patent system. Centering equity within an agency that has historically lacked it is no small task. It requires a commitment to challenge the status quo in small ways and large, and a shared belief that all our political and economic systems are stronger when they are truly inclusive. These solutions do not stand alone—they must all be integrated into the PTO’s structure and ethos to truly effect meaningful advances. By acting on these recommendations, President Biden can improve the lives of millions of Americans, and show bold global leadership in creating an economy that works for all.Priti Krishtel and Tahir Amin are the co-founders and co-executive directors of the Initiative for Medicines, Access & Knowledge (I-MAK), a nonprofit organization working to address structural inequities in how medicines are developed and distributed. They are participating in Patent Quality Week, with Engine Advocacy and others across the country, to encourage conversations on quality and balance in the patent system. Learn more here.

The FBI's proclivity for inside jobs has not gone unnoticed here at Techdirt. The FBI primarily considers itself a counterterrorist agency these days, which has led to a lot of undercover work that closely resembles entrapment.Utilizing a large number of informants (some coerced into this work by threats of visa revocation, travel restrictions, etc.), the FBI has gone into the business of radicalization, turning internet loudmouths (and the occasional nursing home denizen) into would-be terrorists -- going so far as to come up with all the plans, provide all the funding, and supply all the necessary items to engage in terrorism, foreign or domestic.The focus has largely been on the nation's Muslim population, operating on the assumption that the next threat to this nation will be like the last confirmed threat to this nation -- the one observed on September 11, 2001. The FBI has been late in arriving to the domestic terrorism party -- largely because, like other law enforcement agencies, it chose to believe white nationalists and other far right extremists were less of a threat than residents with darker skin.But now that this domestic threat can no longer be ignored, the FBI has apparently thrown itself into its new work. The tactics -- quasi-entrapment utilizing a large number of informants -- haven't changed. BuzzFeed has two reports on the FBI's involvement in the plot to kidnap and kill Michigan governor Gretchen Whitmer -- one that was hatched as the nation underwent the growing pains of dealing with a pandemic while "led" by a president who claimed the virus killing thousands of US residents was either a hoax, a Chinese-led conspiracy to dethrone him, or an exaggerated threat.A handful of the defendants facing federal charges in the kidnapping case are now asking the courts to take a closer look at the FBI's involvement, claiming what happened here was more entrapment than a grassroots movement to forcibly remove a state official from office.

I'm going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it's not very productive. Also, as you'll see below, it creates something of a mess. Meanwhile, it's only been a year since an angry party from a case showed up at a federal judge's home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges' information more private to try to prevent such a thing from happening again.So, again, don't threaten a federal judge.And given all that, it's really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren't always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge's decision.Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge -- and the (anonymous) commenter quipped "is it time to stop murdering the corrupt yet?" It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals.Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges -- including an infamous one about "wood chippers." The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out).Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner.The first comment on that post wondered whether or not anyone was investigating the apparent "corrupted impartiality" of the judge. That spurred a reply comment stating:

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On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn't explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it's unconstitutional would be giving it too much credit. To say that it wouldn't even remotely do anything useful would be to state the obvious. To say that it's a grandstanding piece of absolute nonsense would be about the best thing I could think of. It's garbage in so many ways.The actual functioning of the bill would be to add an exception to Section 230's protections, saying that they no longer apply -- if it's in the midst of a health crisis -- for medical misinformation. It would add the following "EXCEPTION" to Section 230:

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss six months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, a gridlocked agency remains a policy gift.It will take months to appoint and seat a third commissioner and permanent FCC boss. It will take additional months to get that person settled in place to even start working on serious policy proposals. In other words, by the time the FCC is fully staffed, a full year may have been wasted that could have been spent on tackling the not insubstantial problems in the telecom space. While Biden certainly has been aggressive on other fronts (appointing Lina Khan head of the FTC), fixing the mess in telecom clearly hasn't been a top priority.What has been more of a priority? Appointing former Comcast lobbyist David Cohen to the U.S. Ambassador to Canada, apparently. Cohen held the very first fundraising dinner for Biden's Presidential campaign back in 2019, and has now been amply rewarded for his loyalty:

Facial recognition tech is making its way into schools, subjecting minors to the same tech that still hasn't proven its worth in the adult world. Like many other surveillance encroachments, this acquisition and deployment was prompted by violence and fear.Alfred Ng of The Markup has obtained documents detailing a system in use in some Texas schools, one acquired as a potential answer to a uniquely American existential threat.

Content moderation in virtual reality comes with its own unique challenges. What works for the moderation of text and video doesn’t neatly translate into VR. In late June, Facebook’s Horizon, a VR social space still in beta testing, released an update to prevent its blocking feature from creating ghosts. That might sound hyperbolic, but it is a perfectly apt description of the feature’s effect in Horizon prior to the update. In the earlier build, both the blocker and the blocked were made invisible to one another, but allowed to continue interacting with the same virtual world. While they couldn’t see one another, they could see each other’s effects on their shared environment. If someone blocked you, your obscene gestures might be invisible to them, but you could still move the furniture about and rattle chains – practically becoming a poltergeist.

We've noted repeatedly that while "big tech" has faced intense scrutiny over the last few years, "big telecom" has largely seen the exact opposite. Despite being every bit as problematic as tech giants (worse in some ways given their natural monopolies over broadband access), in the last few years the media and telecom sectors (one in the same when it comes to AT&T and Comcast) managed to effectively lobotomize the FCC, obliterate longstanding (and bipartisan) media consolidation rules, gut countless consumer protections, and generally turn the U.S. government into a giant bobble-headed doll with a rubber stamp.Such favors didn't come cheap. A new joint study by the top telecom union (CWA) and Common Cause found that during the last Congress alone the telecom lobby spent $234 million lobbying the government, or roughly $320,000 every single day. Comcast of course was the biggest spender at more than $43 million in lobbying expenditure, with AT&T not too far behind at $36 million. Money spent to gut oversight of the telecom sector while these same companies pushed for dramatically expanded oversight of the "big tech" companies whose ad revenues they've long coveted.Given our lobbying disclosure and campaign finance laws are garbage this tally is likely a dramatic undercount, and doesn't include all the dodgy nonsense the industry uses to influence policy, press coverage, and public discourse. You know, like the fake consumer groups or dead and fake people the telecom industry created to create the illusion of support for the net neutrality repeal. Or the money funneled into DC via so-called "dark money" groups:

For years, the Department of Justice has used its bespoke "balancing process" to decide whether or not to target journalists during investigations of criminal acts or to hunt down the source of leaked documents. This was intended to make the DOJ take into consideration the impact on protected speech and press freedoms when issuing subpoenas targeting journalists. Far too frequently, the DOJ has told itself it's ok to collect journalists' phone and email records in hopes of identifying the actual targets of leak investigations.With Donald Trump in the White House (a self-avowed enemy of the press) overseeing a short procession of suck-ups holding the title "Attorney General," the DOJ seemed to feel the balancing test was more of a suggestion than a rule and proceeded to attempt to acquire journalists' communications records to sniff out a multitude of leakers.The first half of this year has been filled with news about journalists caught up in DOJ leak investigations. Freed of gag orders applied during the Trump years, multiple news organizations reported their employees' phone and email records had been subpoenaed by the DOJ.There's a new President in town, along with a new attorney general. And both made statements claiming the DOJ would stop seeking journalists' records when pursuing leak investigations. Attorney General Merrick Garland also claimed he would support legislation that would block the DOJ from targeting journalists.We're no closer to seeing this legislation enacted. But the DOJ has finally made it official: it is abandoning the balancing test and wlll no longer seek journalists' records in cases like these. Here's how the Attorney General puts it in the recently-released memorandum [PDF] announcing the change in tactics.

Techdirt was recently sued in Florida by Larry Klayman for an article that we published concerning the US Court of Appeals for the District of Columbia Circuit suspending his license for 90 days. We strongly believe that this case is entirely without merit, and is a clear attempt to silence opinion and criticism via the court system.Last week, we asked the court to dismiss the lawsuit under Florida’s anti-SLAPP law, and we hope that the court will agree. Beyond that, while litigation is still ongoing, we'll have no further comment, other than to note our continued advocacy for the adoption of more state anti-SLAPP laws and a strong federal anti-SLAPP law.

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Just a few months ago, Florida governor Ron DeSantis signed a broadly-written anti-protest bill that, among other things, criminalized the act of participating in a protest if other protesters did illegal things. It also criminalized the blocking of traffic and roadways by protesters, something that was already illegal but now was super-illegal with enhanced punishments that made this act a felony.This was the Florida legislature's response to anti-police violence and Black Lives Matters protests in the state -- protests that became far more frequent and intense following the killing of Minnesota resident George Floyd by Minneapolis police officer Derek Chauvin.Failing (perhaps deliberately) to recognize a lighter law enforcement touch was needed to regain the trust of the public, DeSantis and likeminded legislators doubled down, making the very act of protesting police violence an opportunity to be hit with felony charges.The new law is in the news because it very much appears it won't be enforced equitably. Miami's Local 10 wants to know why the new law wasn't deployed to stop Cuban solidarity protesters from blocking highways during recent demonstrations.

Remember when the FCC rubber stamped the Sprint T-Mobile merger without even looking at impact analysis? Remember when a long line of economists and experts noted the merger would likely erode competition, raise rates, and kill jobs -- and both U.S. regulators and the court system completely ignored them? And remember when the FCC and DOJ both cobbled together a "fix" to this problem by trying to throw some spectrum at Dish Network, a proposal we noted was likely to fail?You'll never guess how things are going.First, T-Mobile's promise (still available on the company's website) that the deal would provide a flood of new jobs wound up being bullshit. The company has laid off 5,000 workers and counting -- likely more once they eliminate the second redundant Sprint headquarters. Deal critics estimated that the deal could result in anywhere between 10,000 to 30,000 lost jobs over a period of several years, and we're already well on our way toward that goal.Second, the DOJ/FCC fix for the deal leaned heavily on the idea that T-Mobile would help Dish run a Mobile Virtual Network Operator (MVNO) on T-Mobile's network while Dish spent the next seven years building its own, full 5G network. But the two sides immediately proved completely incapable of getting along, with Dish running to both state and federal regulators to complain that T-Mobile had already started reneging on several of its promises (like shuttering its 3G/CDMA network, still used by Dish wireless subscribers, earlier than Dish had expected).This week those hostilities culminated in Dish effectively giving T-Mobile a demotion and hiring AT&T as the company's primary network partner. The 10 year, $5 billion deal gives AT&T wholesale revenue, and Dish customers access to AT&T's network in more rural and hard to reach places. That in turn gives Dish more time to try to complete a viable fourth wireless network and meet the deployment obligations set out by the FCC (reaching 70% of the population by 2025).While telecom trade mags seem content to pretend this shouldn't be a big deal, other experts continue to express meaningful doubts that Dish will ever become a meaningful fourth major competitor. Or that they'll face any meaningful penalties should they fail to reach their deployment promises:

It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Summary: In May of 2020 Joe Rogan, whose podcast was considered one of the most popular in the world, signed an exclusive deal to host the podcast on Spotify. Rogan, who has been described as “America’s Bro Whisperer” by the AV Club, is a comedian/actor whose podcast is known for extended discussions on a variety of topics. He frequently delves into controversial subjects and explores potentially extreme ideas, conspiracy theories, and hoaxes.Given that history, it was not surprising that people quickly raised questions about why Spotify would “platform” Rogan amidst various controversies regarding the content on his show (both from some of his guests and from Rogan himself), and about how much responsibility Spotify should take for that content. Spotify already has a history, on the music side of its business, of removing some artists from its platform.In the Fall of 2020, things came to a head when a group of Spotify employees complained to management about Spotify being a platform for Rogan, and complained about some particular Rogan content. Reports revealed an all-hands meeting in which Spotify founder and CEO Daniel Ek discussed these requests and explained his reasoning for keeping Rogan on the platform.

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.Patents are increasingly a hot topic in drug price policy conversations. So much so, that one might wonder if this newfound attention is deserved. For example, a recent Senate Judiciary Subcommittee hearing examining anticompetitive conduct in prescription drug markets ended up focusing heavily on Pharma’s blatant abuse of U.S. patent laws. Indeed, it seemed at times that patent thicketing had eclipsed the many other anticompetitive “shenanigans” that Pharma uses to delay competition.So why is there such a growing spotlight on patents?First, it’s important to realize just how big the drug price problem is. Prescription drug spending remains a critical issue in the United States as millions of American patients and the U.S. healthcare system struggle to keep pace with the growing price tag for medical innovations with limited financial reprieve from low-cost alternatives. In 2020, the total US drug spending was estimated at $358.7 billion and the Centers for Medicare & Medicaid Services (CMS) projects national spending on healthcare to reach $6.2 trillion by 2028 – the bulk of the cost resting on shoulders of the federal government and American households (mainly through taxes and insurance premiums).One of the key drivers of these rising costs are the habit of drug makers of blocking competition on older drugs that have proven themselves to be blockbusters. And the best modern strategy for doing that is creating a patent thicket. As Committee Chairman Senator Dick Durbin (D-IL) pointed out, “[T]he top-12 best-selling drugs in America each have an average of 71 patents and 78 percent of all new patents are for drugs that are already on the market.”The reason behind this is two-fold. Older tactics have had successful antitrust cases filed against them, but patent thicketing is somewhat protected by the Noerr-Pennington Doctrine which states that (except for some limitations) people can petition their government even for anticompetitive reasons. That means it is up to the government to resist anticompetitive gaming of its regulations. The second reason is that the patent office is failing at just that. Dr. Rachel Moodie, vice president for Biosimilars Patents and Legal for Fresenius Kabi, a leading health care company, gave testimony stating, “[W]e see the U.S. Patent system as being an outlier now compared to other systems around the world… the way that the patent system is working right now is that it’s easy to circumvent certain rules that allow you to repetitively claim a similar invention over and over again.”What is the result of this patent thicketing?Drug manufacturer AbbVie has filed over 240 patent applications for a single drug, Humira, and received over 130 granted patents. This patent thicket has allowed Humira to control the marketplace in the U.S., leading to Humira claiming the number 1 spot as the world’s bestseller since 2012 – while other countries have had access to more affordable biosimilars. AbbVie itself has had to cut prices by 80% in some markets due to competition.AbbVie isn’t alone. A study by I-MAK found the practice of patent thicketing pervasive among the top 12 best selling drugs by revenue.Just how big of a deal is patent thicketing?The 2020 US revenues of just three drugs – Humira, Enbrel and Revlimid – represent 8.2% of total drug spending in that year. All three of these drugs should be facing competition now or be close to the end of their monopoly terms. They were approved in 2002, 1999, and 2005 respectively. Patent terms only extend 20 years and drugs have historically averaged a little over 14 years of protection on the market due to the length of the approval process (this includes patent term restoration passed by Congress to give some of this time back). Humira has a deal with biosimilar manufacturers that allows them to come to market in 2023, but Enbrel and Revlimid’s final patents don’t expire until 2029 and 2036. Add Imbruvica, a drug we could have seen competition this decade but won’t, and just those four drugs represent almost 10% of all US drug spending.Competition, on the other hand, works when allowed to. A list by Fierce Pharma of the top 20 drugs by worldwide sales in 2020 indicates just how well competition works to lower the price of some of Big Pharma’s most sought after drugs. As competition from biosimilars and generics hits the marketplace, sales of the industry’s top performing drugs correspondingly drop. For example, as competition emerged against Johnson & Johnson’s ulcerative colitis drug, Stelara, the company had to cut its prices to remain competitive. The same report by Fierce Pharma also anticipates the number two drug, Keytruda, soon taking over the number one spot as Humira’s patent is expiring in 2023, opening it up to competition by biosimilars.What does this have to do with patent quality?Drug patent thickets are largely made up of low quality patents whose applications were only filed because of the benefit they provide in keeping competition away from top selling drugs. This means that any patent quality efforts are also efforts to reduce drug prices. For example, the USPTO’s inter partes review process (IPR) has been instrumental in cancelling low-quality patents and allowing new drug competition. This is one of the best tools created by the America Invents Act to cut through these dense patent thickets. IPRs were substantially weakened under the last administration, but a Congress that cares about drug pricing could restore and strengthen this tool to great effect.Matthew Lane is the executive director of the Coalition Against Patent Abuse

Earlier this week, appearing on The View, Senator Amy Klobuchar was asked about COVID disinformation, and gave a pretty bizarre answer. Responding to a question about how fighting COVID has been politicized by Fox News, Klobuchar said we should make Facebook responsible. It's really quite an incredible disconnect. The question specifically highlighted how Fox News was the main vector of COVID misinformation, and Klobuchar said this:

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.The auto industry is experiencing a transformative period of innovation that will make future mobility even cleaner, safer, and smarter. Auto companies are investing billions of dollars in electrification and other fuel-saving technologies, and by 2023 the industry will have invested $250 billion toward this goal. Advanced driving assist features – such as automatic emergency braking – are already helping to improve safety. And automated vehicles can create the next big advancement in vehicle safety and expand mobility for the elderly and those with disabilities.The auto industry is an innovation leader. As major inventors, auto companies own hundreds of thousands of patents and rely on those patents to protect their innovations, which incentivizes more developing and production of cutting-edge automotive technologies. That is why auto companies have a strong interest in ensuring that the patents are high quality and receive robust legal protections.At the same time, auto companies are also increasingly subject to attacks from bad actors who allege patent infringement using low-quality patents that should never have been issued in the first place. In the end, courts find many of these patents invalid, but patent litigation raises costs for consumers and everyone else and is time consuming. The truth is that every moment and dollar auto companies waste on these lawsuits would have been better spent on making cleaner, safer, and smarter cars. Focused and targeted efforts to increase the overall quality of issued patents would reduce the number of low-quality patents that can be used to hamper innovation. High quality patents are a key contributor to our ability to achieve our important environmental and safety goals.To help achieve this goal, the U.S. Patent and Trademark Office (USPTO) should institute policies to improve patent quality during the patent examination phase. For example, important reforms can be made to shift the focus at the USPTO to maximizing patent quality rather than maximizing the rate of patents issued. Other changes, such as increasing the number of hours an examiner spends reviewing a patent application, may also be necessary to increase patent quality. Not all of these changes may be possible for the USPTO to accomplish on its own, so it will be important for the next USPTO director to work with Congress to identify those reforms necessary to improve patent quality.It is also critical that the inter partes review (IPR) process, which was created by the bipartisan America Invents Act in 2011, is protected and preserved. The IPR process has worked as Congress intended and provides a fair, efficient, and cost-effective mechanism to evaluate and reassess whether an issued patent is valid. Abolishing or otherwise limiting access to IPR would almost certainly result in increasing litigation costs, slower adjudication, and more frivolous lawsuits. That would stifle innovation and dynamism in the auto industry, harming auto manufacturers and consumers alike.The auto industry relies heavily on the patent system, which is vital in promoting innovation and economic growth. Promoting and protecting high quality patents, while weeding out abuse in the system, will help the auto industry continue to use leading-edge innovation, constant creativity, and investments in research and development to bring the next generation of breakthrough automotive and mobility technologies to the U.S. market. Patent Quality Week brings important awareness to the value of quality and balance in patent policy. Conversations around quality and balance in patent policy are necessary in protecting innovation in the automotive industry and continuing economic growth.John Bozzella is the president and CEO of the Alliance for Automotive Innovation, which represents 99 percent of the automotive industry.

When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers' own noses. The invocation of the phrase "smell of marijuana" magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble "general rummaging."Every so often, this Constitutional evasion scheme fails to pay off. And it's usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.That's the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius' vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Danielle Baskin is something of a brilliant creative force who constantly comes up with hilarious art projects/commentary/satire -- some of which end up turning into actual businesses. This included, somewhat recently, her Maskalike business that would print yours (or someone else's?) face on a mask. That operation just closed up shop, but was quite popular in the midst of the pandemic. She's also created satirical services such as one that puts blue checks on your home (a la being "verified" on Twitter or Facebook) or stained glass film over airplane windows, or a "Decruiter" service to help you figure out when to quit your job, or a hoodie that will let you replace corporate logos with velcro. There's also the website that runs obituaries for expired domain names.There are many more of these kinds of projects listed on her website. One of her attention-getting projects from a few years ago was Branded Fruit, where she would... well... do what it says, and put a corporate brand on a piece of fruit.Perhaps somewhat inspired by the success of the Branded Fruit project while thinking about the pandemic, the vaccines, and the rush to turn just about anything these days into a branding opportunity, a few months back Basken set up Brand-Aid™ at the website BrandedBandAid.com. It's a clever bit of commentary on the nature of the commercialization of health care these days.Of course, as the little ™ in the title of her site obliquely comments on, Johnson & Johnson still holds the trademark on the brand "Band-Aid" and tries to police the mark fairly aggressively -- especially since many, many people assume that "band aid" is a generic term for medical adhesive bandages, and J&J is terrified of losing the actual trademark.Soon after the Brand-Aid (sorry Brand-Aid™) domain was registered, J&J sent a nastygram. Baskin responded quickly that the site was clearly a parody about the capitalization of public healthcare. J&J then did what J&J does and went to WIPO to demand that the domain itself be handed over to the company. What then followed is fascinating and laid out in WIPO's decision that denies J&J's demand, allowing Baskin to keep the website.The key issue is whether or not the domain was registered in bad faith. The WIPO panel isn't completely convinced by Baskin's arguments -- noting that even if the website is a parody, it's not clear that the domain itself is:

Although it's taken a bit of a back seat lately, the topic of patents has long been important here at Techdirt. Now that we're in the first ever Patent Quality Week, it's time to dig back in and talk about changing the patent system and turning it into something that enables good patents without allowing so many bad ones. So for this week's episode, we're joined by Engine's IP Counsel Abby Rives to talk about the inception and goals of Patent Quality Week, and how to fix our broken approach to patents.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.

For many reasons, it seems we're deep in the mire of the techlash: everywhere you look, there are stories about the evils of technology. And while it is important to explore the risks and downsides of technology -- especially after a few decades dominated by boosterism and PR-pretending-to-be-news -- there's a real danger of throwing out all the good (and potential good) while trying to deal with everything bad.I think it's time that we bring back recognition of how innovation, and technology such as the open internet, can actually do tremendous good in the world. I'm not talking about a return to unfettered boosterism and unthinking cheerleading -- but a new and better-informed understanding of how innovation can create important and useful outcomes. An understanding that recognizes and aims to minimize the potential downsides, taking the lessons of the techlash and looking for ways to create a better, more innovative world.A little over a decade ago I toyed with the idea of writing a book about the untapped power of the internet. I worked on a book proposal, found an agent, and talked with a few publishers -- and what I heard was somewhat disheartening. I was told everyone was already so positive about the internet that no one thought a book about the good of technology would sell. Instead, I was told, the market was really hungering for contrarian books about how terrible the internet was. And indeed there were several such books published around that time, many of which sold quite well. Of course, over the past few years, the general good feelings about the internet have come crashing down in the public narrative, so I began thinking about finally writing a massively updated and expanded version of what I thought my original book would be about -- and this time, I would be the contrarian, pointing out that maybe the techlash has gone too far in dismissing the important benefits of innovation. Again I went around and talked with a few people, and the message I got back was... "no one likes the internet any more, so such a book won't sell."I'm beginning to think it might just be that book publishers don't like the internet, and aren't all that interested in publishing a book about its incredible potential for good.Eternal August, September, & OctoberInternet old-timers probably know the phrase Eternal September, though I always heard it as "the September that never ended." It comes from the idea that in the late 1980s and early 1990s, every September there would be an influx of newbies on the internet (mostly on Usenet) as incoming freshmen at colleges would get their very first internet access. And those newbies would blunder around, not understanding the customs and norms, and generally be bad tourists until they settled in and learned how things worked. However, in September of 1993 (incidentally my freshman year in college, and my introduction to Usenet), AOL opened its then-massive doors to Usenet as well. Prior to that, AOL had been a walled garden: a proprietary service, separate from the open internet. However, seeing the writing on the wall, AOL tore down its own walls and sent its massive userbase careening all over the open internet. And thus the bad behavior of my cohort of college freshmen was completely dwarfed by the sheer nonsense of hoards of clueless AOL users.From then on, the internet was never the same. Hence, the Eternal September.To some extent, what we've seen over the last few years was an enhanced and much more damaging version of the Eternal September. The craziness has taken over parts of the internet. A few weeks back, I was talking about this with a friend and we joked about the goal of the Eternal August -- bringing back that moment of hope and potential, before all the newbies came in and ruined things. Indeed, originally this post was going to have Eternal August in the title.But as I drafted this piece, I realized that it's not the Eternal August we should be aiming for. Because that would ignore the very real damage and harms that have come from the abuse of technology: the fact that nation states and other actors with bad intent have often captured and abused the internet for their own ends. So instead, I think we should be aiming for a kind of Eternal October. Historically, prior to AOL's walls coming down, the craziness caused by the September influx of newbies would gradually recede as they learned how everything worked and how to be good digital citizens. There was just a bit of a learning curve. The problem with the Eternal September was that there were just too many of these people for them to all learn how to be good digital citizens. But all these years later, perhaps that's what we need to (and can) achieve.That is, we should have a world in which we recognize the amazing opportunity of innovation to empower everyone and to challenge unaccountable power -- but not one in which we indulge in naive utopianism or the assumption that progress towards a "good" outcome is inevitable and easy. That is the power of the Eternal October. Eternal August is fun and exciting and optimistic -- but can be naive about the dangers downsides. Eternal September is a dystopian hellhole in which you recognize that utopias don't come about automatically. Eternal October, then, is where we take both into account, and recognize how technology and innovation have amazing potential for good without overlooking the fact that they can also be abused for nefarious purposes. It's when we explore ways to support the good aspects of innovation, and seek to minimize the potential for and impact of abuse.In an Eternal October, we recognize a world in which innovation does a tremendous amount of good. Millions of people -- often those who were marginalized and whose views were suppressed -- have been able to find likeminded connections, to organize, and to speak out. In this world, we see incredible movements like the Arab Spring, the #metoo movement, and many powerful campaigns against hatred and racism. It's a world in which access to information and people have enabled knowledge to flow, people to become educated, and previously unheard voices to speak out against true injustice.But in this world we also recognize how those same tools of innovation can be co-opted and put to nefarious intent. We've seen how they can be used for targeted harassment campaigns, and how the power of online communities can be leveraged to spread disinformation, hate, chaos, and discord. We seen how the innovative new tools of communication have been put to important use for effecting change and speaking truth to power, but also how the powerful have turned those tools around to further entrench their power and attack the vulnerable.And this doesn't just happen on a large scale. Smaller benefits often get lost while focusing on the huge movements: the ability of marginalized and at-risk people in communities with little support to find others on the open internet and realize they are not alone; the ability of individuals in far flung places to simply find their own tribe -- the people who truly understand them. But less globe-spanning downsides also can't be ignored: the abuse can have devastating impact on a small scale as well.The Eternal October: Focus on EmpowermentSo how do we square those two sides? The power of technology to bring people together, to build movements, and to create change is undeniable. Sometimes it's used for good and, clearly, sometimes it's used for ill. Some people seem to believe that the fact that it can be used for bad purposes outweighs all else, and means that the technology and the power it creates should be greatly limited and scaled back. I believe otherwise.For years, there were attempts to place all commentators on tech into one of two camps: techno utopians and techno skeptics. I've regularly been called a techno utopian. People can call me whatever they want, but I think the "utopian" framing is incredibly misleading. I'm reminded of Cory Doctorow's useful response to those who called John Perry Barlow a hopeless utopian optimist:

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A municipal court judge in New Jersey who apparently doesn't understand either the First Amendment or local ordinances has just ordered a resident to take down some f-bomb-laden signs from her yard. (h/t Peter Bonilla)

If you hadn't noticed, there's been no shortage of dodgy folks attempting to cash in on the MAGA craze. There's also been no shortage of folks eager to cash in on the generalized animosity against "big tech" driven by bogus claims of "Conservative censorship" (aka: people being held vaguely accountable for being racist assholes on the internet via clumsy Silicon Valley moderation practices that don't work well at scale).Enter the $500 Freedom phone, a new device being targeted at MAGA devotees promising an "uncensorable App Store," all your favorite right-wing apps preloaded, and promises that users can take "back control" from big 'ole mean big tech.Amusingly there's no real detail anywhere on the website in terms of specs or build, meaning users have no real idea what they're actually signing up for. But when The Daily Beast had somebody take a closer look at the device, they found it was likely a Chinese-made A9Pro (retail: $120) running a modified version of Google's Android OS dubbed "FreedomOS":

It's no secret that the launch of Google's video game streaming platform Stadia has not exactly been smooth. From access issues to performance problems, up to and including a low adoption rate and stunted catalogue of games, this appeared for all the world to be Google's video game equivalent of Google Plus. In other words, one of those projects Google launches half way and then abandons. Part of the issue with the catalogue was reports that Google wasn't going to be shelling out cash to bring in more games to the platform last year.But perhaps that is going to change. And perhaps the rumors of Stadia's forthcoming death have been greatly exaggerated. Reports now indicate that Google is going to try to attract more publishers to the platform by engaging in the same revenue-split wars currently going on between Steam, Epic, and Microsoft.

By now, there's enough case law in place that law enforcement officers should definitely know it's a violation of rights to arrest someone for momentarily offending them. Even without the case law, these officers know it's not okay to bust people for flipping them off or yelling expletives in their general direction. That's why those that do, buttress their rights violations with absurd claims that doing these things "disturbs the peace" or violates any other "contempt of cop" law that can be deliberately misread to criminalize hurting a cop's feelings.But cops persist in engaging in retaliatory acts that target protected speech. And the most protected speech of all is criticism of the government, even if it's nothing more than a fleeting expletive or the bird being delivered by the passenger of a passing car.This refusal to let bygones be bygones when the moving vehicle has moved on is going to cost taxpayers some money. A case already decided by the Eighth Circuit Appeals Court in favor of the citizen setting up Arkansas State Trooper Lagarian Cross with the F-bomb now has a much more expensive price tag.The original 2019 decision refused to grant Trooper Cross qualified immunity. It also awarded the swear Eric Thurairajah nominal damages: one US dollar. Here's a brief rundown of the facts behind the first visit to the Appeals Court, as well as setting the stage for the Eighth Circuit's second pass.

Immediately following the murder of George Floyd by former-officer and current-convict Derek Chauvin, Minneapolis burned. Literally. Unchecked violence by cops provoked violence by some city residents, who looted businesses and, most provocatively, set the Minneapolis PD's Third Precinct building on fire.While this happened, another precinct -- located nearly five miles away from the most intense protests -- decided now was the time to pursue some opacity.

This week is the very first Patent Quality Week, in which a bunch of folks in the innovation space explore what it will take to improve patent quality. Unfortunately, for years, patent maximalists have tried to attack those of us who support a better patent system with somehow being totally against patents. They will regularly conflate arguments people have made to get rid of bad patents, and about how bad patents are abused to hinder, stifle, and slow down innovation, as if they mean that we hate all patents entirely. That's not true. So this week we'll be posting a variety of articles from different perspectives about how we can get better quality patents.Almost exactly a decade ago, I laid out my plan for fixing the patent system, which included four separate proposals, all of which I still think are good. And so far, out of the four, only half of one has actually been put into practice (and is now under tremendous attack). That was the inter partes review process added by the America Invents Act, to make post-grant review of patents easier (though it did not come together with the other half of that suggestion, which is to drop the presumption that a patent, once granted, must be valid).However, for this inaugural Patent Quality Week, I wanted to focus in on a separate prong of my plan to fix the patent system, which I think would massively improve patent quality practically overnight. It's this: recognize that independent invention is a sign that an invention is not patentable. This may require a bit of explanation. Going back many decades, US patent law has, officially if not actually, used what's known as the PHOSITA standard, which stands for "person having ordinary skill in the art." Specifically 35 US 103, on the conditions for patentability and non-obvious subject matter, says:

France has long been in the vanguard of passing bad copyright laws. For example, it rushed to bring in probably the worst implementation of the EU Copyright Directive's upload filters. It's also keen on forcing Google to pay French press publishers for sending traffic to them when it displays clickable snippets of their news stories for free. Last year, the French Competition Authority said Google had no choice in the matter, and ordered the company to negotiate with French news organizations and come up with a deal that pays them to display even short excerpts. A year on, it seems that the French Competition Authority is not happy with the way that Google has responded: