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This week, our first place winner on the insightful side Bloof making a point that really shouldn't need to be made anymore but apparently always does:

Five Years AgoThis week in 2016, the Copyright Office was pushing a dangerous plan to strip websites of DMCA harbors, Google and Facebook were using copyright tools to take down extremist content, and lawmakers in Europe were floating the dumb idea of letting robots and computers have copyrights. Malibu Media was getting called out by a judge while also launching a lawsuit against its former lawyer, while two other important rulings in copyright cases stated that an IP address is not a person. We also took a closer look at Hillary Clinton's problematic tech platform and vague and confusing intellectual property platform.Ten Years AgoThis week in 2011, early hacktivist group LulzSec announced plans to disband, and we looked at the impact this kind of hacktivism was having while the RIAA was citing such groups as another reason for passing the PROTECT IP act. Sony's CEO was blaming its own hacking woes on people wanting everything for free, while PS3 jailbreaker George Hotz (aka GeoHot) was hired by Facebook. Meanwhile, Righthaven's troubles continued with racketeering claims brought in South Carolina and similar claims made in Nevada, while the company was begging to be put back into a case it was dismissed from and trying to avoid sanctions by blaming its lawyer. Amidst this, we looked at the silver lining of Righthaven's activities: they helped to establish a much more expansive view of fair use when it comes to copying newspaper articles.Fifteen Years AgoThis week in 2006, newspapers were at the peak of their efforts to block people from reading their work for free online. The fact that IP addresses are not people (and weren't in 2006 either) was proving an effective way of getting the RIAA to drop lawsuits. Amazon's plans to get into the video download business were leaked, while Metallica finally caved and decided to sell music downloads in iTunes, and Kazaa settled its lawsuit with the music industry and announced plans to go legit while Torrentspy was facing its own lawsuit and asking why Hollywood wasn't suing Google too.

It's no secret that I don't care for the way that Nintendo treats its biggest fans when it comes to allowing them to view and use its IP in order to express their fandom. I have been known, after all, to create entire genres of posts with "Nintendo Hates You" in the title. And, so, when I noticed headlines about how YouTube videos for let's-plays featuring the classic SNES game Earthbound were being demonitized or taken down over copyright claims, I was sure I would be writing yet another of those headlines.But, nope. Instead, this is a story about how Sony has issued copyright claims, and apparently rebutted counterclaims, against let's-plays for Earthbound not because it published the game, which it very much did not, but because Nintendo licensed the soundtrack for the game to Sony for an album release.

A substantial part of the Ohio legislature seems incapable of reading the room. Following several months of anti-police violence protests, state legislators have passed a bill that makes it easier for law enforcement officers to arrest anyone for just about anything. (h/t Joe Papp)The opening of this report by Cleveland's News 5 gives you the general gist of the bill.

Civil asset forfeiture remains a garbage government theft operation. Always has been. Always will be. The government can just take stuff, make up a reason for taking it, and then hope a system that's deliberately complicated and expensive will prevent citizens from trying to reclaim their property.In some cases, they can't even be bothered to make up a better reason than "government policy." And even when it's decided it's not going to keep the property, it still makes it almost impossible for its owner to retrieve it.That's what has happened to Alaska resident Willie Cooks. The government took $60,000 from him at the Fairbanks Airport and, despite claiming it doesn't intend to pursue a forfeiture, has held onto the money for nearly 16 months.Cooks is suing [PDF] to get his money back. The only reason it was taken from him was because he chose, perhaps unwisely, to carry it with him on a flight to Las Vegas, Nevada. That's where both the TSA and the DEA got involved.Heading through the checkpoint, Cooks was stopped by the TSA. The TSA saw Cooks' money and informed the Airport Police Department. The APD questioned Cooks, took his money, and turned it over to the DEA. Why did all of this happen? Because policy.

Is there any cooler musician than Elvis Costello? Honestly, one of the more annoying things about writing about the ins-and-outs of copyright law and creativity is realizing just how many of my artistic (music, filmmaking, writing, etc.) heroes turns out to have absolutely dreadful opinions about creativity and inspiration, often ignoring how they got to where they got, and instead focusing on pulling up the ladder behind them and squeezing as much cash as possible out of others. So I'm always concerned when I learn about musician I like opining on these issues -- especially over the last few years. You had the Marvin Gaye Estate cash in on a pop song that didn't copy any Gaye song, but just had a similar "feel." And that opened the doors to a whole bunch of similar lawsuits of aging rockers (or their estates) demanding money from newer artists.But Elvis Costello apparently has decided to take the much more sane, much more creative, and much more supportive route. A few different artists have started whining about a new album by Olivia Rodrigo. It started with Courtney Love complaining about the promo artwork on Rodrigo's new album being somewhat similar to Hole's album "Live Through This."

How many constitutional rights can Facebook violate? To paraphrase Nigel Tufnel, the answer is none. None rights can be violated.That won't stop people from suing social media platforms for having their posts/accounts moderated. Do a bit of deletion and all of sudden some people feel they have a federal case. Mandela Brock, d/b/a Mandel El'Shabazz on Facebook, got on the wrong side of some moderation and decided to sue about it.The complaint [PDF] alleges a whole host of constitutional violations on the part of Facebook, which had removed some posts that violated the site's Community Guidelines. This is what Brock alleged:

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Last month we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying him a premium for bandwidth, tech giants should pay him a troll toll. You know, just because.Telecom lobbying and policy folks have done a great job capitalizing on the legitimate animosity over "big tech" to reseed this idea in the press using captured lawmakers and unskeptical news outlets. For example here's Axios this week parroting GOP claims that they genuinely want to address the shortfall in broadband subsidy funding by... having technology giants pay for it:

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

It's not just the CFAA that can be abused. This law -- recently trimmed a bit by the US Supreme Court -- has been abused for years to go after web scrapers, researchers, and information-wants-to-be-free activists. The recent ruling does narrow the scope of that law a bit, but the CFAA still has the potential to do serious damage when wielded carelessly or vengefully.The state of Georgia has its own set of computer crime laws and they're just as capable of being interpreted by prosecutors to criminalize acts that shouldn't be criminal offenses. Fortunately, a state court has made a sensible reading of the law to overturn a conviction for computer trespass -- one that saw a former Norcross (GA) city employee hit with felony charges. (h/t Andrew Fleischman)Jereno Kinslow was a city IT employee who had some problems with his new boss, Greg Cothran. Cothran criticized Kinslow's work performance, leading to a "loud outburst" from Kinslow. This apparently made Cothran concerned Kinslow might sabotage the city's network. Certain "safety measures" were put in place and Kinslow was eventually fired.Before Kinslow was let go, he utilized his administrator-level access to forward copies of emails sent to Cothran to his own personal email account. This was discovered by Cothran months later when he received a bounce notification specifying Kinslow's email account. This alleged "criminal trespass" formed the basis for charges that resulted in Kinslow being convicted of a felony and sentenced to ten years of probation.Kinslow challenged his conviction under this statute, claiming prosecutors did not present evidence that he had actually violated the law. The Georgia Supreme Court agrees [PDF] with Kinslow.

Just as more news of what Trump wanted from Parler breaks, comes the news that his somewhat infamous former aide, Jason Miller, has launched a social media site called GETTR. It should be noted that through all of the rumors about Trump starting his own social network, it was usually Jason Miller who was claiming that it was on the way.Apparently, though, Miller stepped down from his role as Trump spokesperson to run GETTR -- and there are reports claiming that the originator of GETTR is someone trying to build "an important link between China and the West" with GETTR and a series of related apps.

Summary: In the spring of 2011, two men were on a first date at the John Snow pub in London. They were apparently thrown out of the pub after another patron at the bar complained that the two men were kissing each other in the corner. The story of being thrown out of the pub for kissing began to go viral on social media, followed by a plan for a protest at the pub in question. In a sign of support for the protest, many people on social media posted images of two men kissing each other as well.The Dangerous Minds Facebook page wrote about the protest, and included a promotional image from the BBC of two male characters from the popular soap opera EastEnders kissing to illustrate the post. The image had become well known in the UK a few years prior, as the scene in question had kicked off complaints to the BBC which the BBC responded to by noting that the relationship between two men was treated no differently than many other relationships displayed on the show between a man and a woman. Soon after this, Facebook removed the image, telling Dangerous Minds that it “violated Facebook’s Statement of Rights and Responsibilities.”Soon after this, Facebook removed the image, telling Dangerous Minds that it “violated Facebook’s Statement of Rights and Responsibilities.”

Earlier this year, the Fifth Circuit Court of Appeals granted qualified immunity to cops who responded to a call about a suicidal man by setting him on fire and killing him. The man, who had just finished pouring gasoline over himself, was tased by two officers, causing him to burst into flames, which soon spread to the house around him. They tased him despite knowing two things: the man was covered in gas and that the manufacturer of their [extremely-dark lol] "less-lethal" devices specifically warned against deploying them around flammable substances.This is from the decision in which the Fifth saw nothing unjustifiable about these actions:

There has been a lot of speculation regarding whether or not Donald Trump would set up his own social network or if he'd just join one of the struggling social networks which only seem to exist in order to cater to Trump's most fervent supporters. Parler, obviously, gets a lot of attention and earlier this year there were reports that, while Trump was still President, he had entered into negotiations to take an equity stake in Parler and then embrace the platform as his preferred social network. As we noted back then, "for whatever reasons, the agreement did not materialize."A new book by Michael Wolff suggests one possible reason. It claims that Trump demanded that Parler had to block Trump's critics from its platform:

One of the most outrageous ideas dreamt up by traditional media companies is that Internet companies like Google and Facebook should pay for the privilege of sending huge amounts of traffic to their sites. This "snippet tax", also known as the "link tax", was unfortunately enshrined in the EU Copyright Directive in 2019. More recently, Australia has brought in its own link tax, the News Media Bargaining Code, that is even worse than the EU approach.The move from explicitly targeting snippets to forcing Internet companies to negotiate with the media is significant. It's a recognition that Google and Facebook could avoid paying the link tax if they stopped displaying snippets from media companies. The latter obviously don't want that, since they know it would cause a precipitous drop in the number of people visiting their titles. Instead they want Internet companies to pay up -- just "because". Media companies in Denmark have decided to do this as a group, reported here by the Financial Times (paywall):

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As you may recall, last summer we wrote about what we referred to as an "insanely stupid" lawsuit that Robert F. Kennedy had filed against Facebook on behalf of his wacky anti-vax organization "Children's Health Defense" (CHD). The issue, of course, is that Facebook blocked CHD from posting the usual conspiracy theories and medical disinformation that RFK Jr. has been known to spread. But the case tried out some "new" theories on why such moderation was against the law: specifically, it argued that Section 230 turned websites into state actors by "privatizing" censorship and also that because Rep. Adam Schiff had sent a letter to Facebook asking it to crack down on disinformation on vaccines, that this also made them a state actor.A few months later, disgraced (and suspended) Yale law professor Jed Rubenfeld published a Wall St. Journal op-ed pushing the same dopey theory about 230 making private companies state actors. So it wasn't all that surprising when it came time for a hearing on RFK's dopey case, Rubenfeld showed up in court to push the idea on behalf of Children's Health Defense.It seems that the legal argument went over about as well as we expected: the court has dismissed the case. The dismissal of the case goes deep on a variety of arguments -- not all of which we need to dig into here, but suffice it to say, Facebook (and Mark Zuckerberg) are not state actors. First, the fact that Facebook has "worked with" the CDC to gather information does not, in fact, make it a state actor:

Not only are countless systems and services not secure, security itself often isn't treated with the respect it deserves. And tools that are supposed to protect you from malicious actors are often monetized in self-serving ways. Like that time Facebook advertised a "privacy protecting VPN" that was effectively just spyware used to track Facebook users when they weren't on Zuckerberg's platform. Or that time Twitter was hit with a $250 million fine after it chose to use the phone numbers provided by users for two-factor authentication for marketing purposes (something Facebook was also busted for).SMS verification ads themselves are also now being exploited as a marketing opportunity. Developer Chris Lacy was recently taken aback after an SMS two-factor authentication code from Google was injected with an SMS ad:

After two court decisions declaring the Baltimore Police Department's Persistent Surveillance Systems-provided aerial surveillance system wasn't actually persistent surveillance, the en banc Fourth Circuit Appeals Court has reversed itself, finding that the system capable of capturing the movements of people and vehicles over an area of 32-square-miles violates the Fourth Amendment.The 192-million megapixel camera system flew over the city for up to 12 hours a day, only shutting down when darkness or weather rendered the cameras useless. This footage was retained by the PD, which could review the footage to trace movements to and from crime scenes. The resolution meant people and vehicles were little more than unidentifiable pixels, but this information -- combined with a plethora of ground-based surveillance equipment -- made it possible to identify suspects and other persons of interest.The AIR [Aerial Investigation Research] program was challenged by the ACLU, which cited the Supreme Court's Carpenter decision in its request for an injunction. The federal court said the surveillance wasn't persistent and its built-in limitations prevented it from tracking people's movements for days at a time. As such, AIR's surveillance was unlike the location tracking in the Carpenter decision, which involved the use of cell site location information obtained from cell service providers.The Fourth Circuit Appeals Court reached pretty much the same conclusion seven months later. Despite covering a vast are for up to 12 hours a day, the court felt the surveillance was far from persistent. It also seemed to feel the surveillance was a means justified by the ends, citing the Baltimore PD's inability to solve more than a third of the city's murders over the past several years.The court agreed to perform an en banc review of its November decision and has, somewhat surprisingly, declared this form of surveillance a violation of the Fourth Amendment. And it makes no difference that the PD has dumped the program. The ruling [PDF] serves to prevent the PD from trying it again the next time it runs out of better ideas.Even though the program has ended, the PD has retained some of what was collected during its run. It's still quite a bit of footage and data.

I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

We've been talking a lot about the huge effort in Congress to pass new antitrust laws targeting big tech companies, and all the issues these proposals have. This week, we've got an insider perspective on just what's going on with antitrust in the House: Rep. Zoe Lofgren, who called out many of the deficiencies in the bills during last week's marathon markup session, joins us for a discussion all about the many, many problems in all five proposed antitrust bills.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.

Consecutive FBI directors (James Comey, and Chris Wray) have declared a small scale war on encryption. Both of these directors relied on inflated numbers to make their case -- an error chalked up to software rather than rhetorical convenience. (The FBI has refused to hand over a correct count of encrypted devices in its possession for more than three years at this point.)The FBI's narrative keeps getting interrupted by inconvenient facts. Proclamations that the criminal world is "going dark" are often followed by the announcement of new exploits that give law enforcement the ability to decrypt phones and access their contents.Grayshift is one of the vendors selling phone-cracking tech to law enforcement agencies. The company has an ex-Apple security engineer on staff and has been duking it out with the device manufacturer for the past few years. It seems to be able to find exploits faster than Apple can patch them, leading to a tech arms race that law enforcement appears to be able to win from time to time.Joseph Cox at Motherboard has obtained more documents about Grayshift's phone-cracking device, GrayKey. Apple prides itself on providing secure devices. But it appears GrayKey is still capable of bypassing iOS security features, enabling investigators to brute force device passwords. And it can still do this even if the targeted device is on the verge of battery death.

Last week, in a somewhat controversial decision in the TransUnion v. Ramirez case, the Supreme Court ruled, 5 to 4, that plaintiff's in a class action lawsuit did not have standing to sue under the Fair Credit Reporting Act (FRCA). The issue may seem wholly unrelated from copyright, but in reading through the decision, it's possible it could lead to a vastly different world for copyright going forward, because the same issues that the Court finds fault with in the FRCA also apply to copyright law -- and, indeed, it's the part of copyright law that is most widely abused in lawsuits.I should be clear that I think the holding in the TransUnion case is problematic and seems... well... weird. But if what the majority decided is true, then I don't see how copyright's statutory damages can remain constitutional. Let's dig into the case to explore why. The majority opinion, written by Justice Kavanaugh gives the basic overview right upfront:

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In a very dense and somewhat counterintuitive opinion [PDF], the Ninth Circuit Court of Appeals has dumped two more of the dozens of bogus "sue social media companies for acts committed by terrorists" lawsuits. But it has kept one alive. Worse, the 167-page ruling comes with concurring opinions that suggest Ninth Circuit judges think Section 230 immunity is, on the whole, letting social media companies get away with too much bad stuff.The two lawsuits whose dismissals were affirmed deal with the San Bernardino shooting and the terrorist attacks in Paris, France. The one kept alive deals with a terrorist attack in Istanbul, Turkey. The first case (Gonzalez v. Google) deals with allegations that Google's revenue sharing with terrorist organizations amounted to material support. But the allegations aren't strong enough to sustain the lawsuit.

Ohio Republicans have been forced to back off an attempt to ban community broadband networks in the state after massive public opposition. As we recently noted, state Republicans included a last-hour amendment to a state budget bill (at AT&T and Charter's behest) that would have effectively outlawed community and municipal broadband. Such networks are an organic, grass roots response to market failure at the hands of regional telecom monopolies. And instead of addressing them by offering better, cheaper service, giant ISPs often find it's cheaper to just lobby state and federal lawmakers.The Ohio proposal was so unpopular, none of the Republican backers were willing to even publicly acknowledge their support. After several weeks of significant backlash, the Ohio Senate conference committee was forced to scrap the proposal. That's good news to FairlawnGig, a locally-owned ISP built on the back of a local power utility, which offers significantly faster fiber broadband at lower rates than most national providers. From an email the ISP sent out Monday morning:

As you've now heard, there's a big push in Congress to revise how antitrust works. A group of mostly Democratic House members (with a few Republicans on board) introduced a questionable package of antitrust bills, with many, many problems. There were some good ideas (such as better funding of the FTC) and some more creative ideas (such as around interoperability), but done in such ham-fisted ways that they would cause a lot more harm than good. We've noted how the bills would create massive problems for content moderation, and raise related speech issues.Last week's marathon markup hearing in the House Judiciary Committee did not ease these concerns -- if anything they made them much, much worse. After the hearing was finally over, a bi-partisan group of Judiciary Committee members put out a statement highlighting the half-baked nature of the proposals.

We have seen our monumentally absurd permission and copyright culture kill off all sorts of cool fan projects. Perhaps no industry is impacted by this more than the video game space, where you have the combination of rabid fans of particular games and franchises coupled with an above average level of technical skill in exhibiting that fandom. This combination sees an absolute ton of fan-made projects, including ports of games to different hardware, fan-made games, and even the re-creation of old games within new ones. It should be obvious that all of this carries very little monetary risk for the game makers, and, in fact, often times could be a boon, and yet it is all too common for publishers and developers to sic lawyers on their own fans rather than figuring out a way to coexist or benefit from them.But sometimes this nonsense gets down to an absurdly granular level. Such appears to the be the case with one YouTuber going by Krollywood, who spent hundreds of hours recreating the maps for the classic N64 game GoldenEye 007 in Far Cry 5, only to have those maps removed by Ubisoft in response to a copyright claim.

Owners of the Western Digital popular My Book external hard drives aren't having a particularly good week. The company is advising customers to stop using the devices for now after customers mysteriously found their data deleted. According to complaints over at the company's website (first spotted by Bleeping Computer), many users say they woke up to find that the content of their external USB-connected storage drives had been completely wiped. Worse, they couldn't log in to the device's administrative systems to run any kind of diagnosis on the drives:

Owners of the Western Digital popular My Book external hard drives aren't having a particularly good week. The company is advising customers to stop using the devices for now after customers mysteriously found their data deleted. According to complaints over at the company's website (first spotted by Bleeping Computer), many users say they woke up to find that the content of their external USB-connected storage drives had been completely wiped. Worse, they couldn't log in to the device's administrative systems to run any kind of diagnosis on the drives:

Is there anything facial recognition tech can't do?The answer appears to be "yes." Or maybe it's "no." The list of things it can't do well flows from the only thing it's asked to do and can't: recognize faces.It can't allow you to board a plane at certain airports if it decides you're not the person you actually are. It can't keep you from being arrested if it decides you're someone you're not. And it can't let you on the property if it's deployed by any number of cameras watching any number of private establishments.The latest thing it can't do is keep unemployed people connected with their unemployment assistance. A private contractor acting as a fraud-fighting middleman is apparently fighting fraud by keeping legitimate recipients of assistance from receiving any assistance. Todd Feathers has more information at Motherboard.

As you'll almost certainly recall, last December the FTC filed an antitrust case against Facebook. That happened the same day 46 states (and DC and Guam) also sued Facebook for antitrust violations in a separate case. Also it was right after the DOJ went after Google on antitrust grounds.On Monday a judge ruled on both the cases against Facebook -- and dismissed them both. In both cases, the Court highlights the very problems we noted in our initial writeup about these cases. They seem to assume that "obviously" Facebook is a monopoly and "obviously" it's doing anti-competitive bad stuff. But... the problem with insisting that it's all "obvious" is that you have to actually show that in your complaint. And that didn't happen in either of these cases.The court, fairly easily, dismissed the FTC's case, though left it open for the FTC to amend the case and try again (which it will almost certainly do). The judge highlighted the exact same problem I raised in my post about the key weakness in the case: it fails to show evidence that Facebook has a monopoly.

We've already noted how the Biden broadband plan was good, but arguably vague. As in, the outline proclaims that the government will boost competition and lower prices, but it doesn't actually get at all specific about how it actually hopes to do that. For example the plan proposes providing more support for community broadband, but with 17 ISP-backed state laws prohibiting such efforts (and new ones popping up in states like Ohio), it's not clear what that support will actually look like.Telecom giants like Comcast and AT&T have been relentlessly lobbying both parties. They generally want one thing: more subsidies thrown their direction to fill in the coverage gaps they should have shored up a decade ago, and less money thrown at generating competition across their existing footprints. 83 million Americans live under a broadband monopoly, and incumbents spend countless billable hours covertly working to protect this profitable dysfunction.As a result, the scope of the Biden broadband plan (and the infrastructure proposal) continue to shrink. The $100 billion plan is now a $65 billion plan, and it seems fairly likely that many of the restrictions AT&T, Verizon, and Comcast have been gunning for will make their way into any final proposal. It's also pretty unlikely Republicans, who consistently try to ban communities from building better, faster broadband networks, will support community broadband:

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On Monday, the Twitter account Right Wing Watch -- which is famous for highlighting some of the nuttier nonsense said by Republicans -- announced that its YouTube account had been permanently banned.

The first half of this year has been periodically interrupted with news of the DOJ's attempts to obtain journalists' phone and email records. The Trump Administration targeted journalists at CNN, the New York Times, and the Washington Post while trying to sniff out the sources of White House leaks.This wasn't necessarily uncommon behavior for the DOJ. Prior to Trump's arrival in office (along with his open disdain for journalists), the Obama Administration set records for leak investigations and whistleblower prosecutions. Obama's DOJ targeted journalists hundreds of times while Eric Holder was Attorney General.Following this run of negative press, President Joe Biden stepped up to swear the DOJ would never target journalists again. A few days later, the DOJ decided it should align itself with its boss and also said it would end the practice of seeking journalists' records during leak investigations. An investigation was opened by the DOJ's Inspector General to see how often this was done and whether or not it violated rights/DOJ policies.This is all well and good but all it takes is a regime change -- something that can happen as often as every four years -- to roll these pledges back and let the DOJ get back to using journalists' communications records to track down their sources. To make it permanent, you need codification.So, Congress had better get on it, because this promise by the new Attorney General expires when he leaves office.

First, an apology. I tend to cover much of our trademark beat here at Techdirt. And regular readers here will know that my sense of humor trends towards the juvenile and vulgar. It is with a solemn and heartfelt apology, therefore, that I must report to you all that I somehow missed that there was a trademark fight between famed drummer Ringo Starr and Pacific Coast Holdings IP, LLC, makers of a Ring O -- wait for it -- sex toy. I really should have caught this, but missed it.The background on this is that Starr's legal team opposed the "Ring O" trademark Pacific Coast Holdings applied for, claiming that the public would be confused into believing that Starr was now somehow in the sex toys business.

The challenge of a 24+ hour legislative session covering multiple bills is that it's hard to keep track of everything that happens. In my last post I wrote about a few impressions and examples that I happened to catch. This post is about another.Plenty of people on both sides of the aisle have been plenty wrong about content moderation on the Internet. Many Democrats get it very wrong, and so do many Republicans. In the case of people like Reps. Jim Jordan and Matt Gaetz, their particular flavor of wrongness has been to rant and rave about the private editorial decisions platforms have made to remove the speech they think they should have the right to make on these services, no matter what. They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rights—and they are completely and utterly wrong on that point. Platforms are private actors with their own First Amendment rights to choose what speech to associate with. Making those decisions, even in ways some people (including these Congressmen) don't like, is entirely legal and THEIR constitutional right to exercise. It in no way impinges on the First Amendment rights of any would-be user of their service to refuse their expression.But these Congressmen and some of their similarly-minded colleagues have noticed that if these antitrust bills should become law in anything close to their current form their speech will continue to be denied access to these services. And this time that denial may well represent an unconstitutional incursion on their speech rights. Because it's one thing if the platforms make their own independent editorial decisions on whether to facilitate or deny certain user speech, including these Congressmen's speech. But it's another when government pressure forces platforms' hand to make those decisions in any particular way. And that's what these bills threaten to do.One such way that they flagged is through the bills' demands for interoperability. Interoperability sounds like a nice idea in theory, but in practice there are significant issues with privacy, security, and even potentially content moderation, especially when it is demanded. Because one of the problems with an interoperability mandate is that it's hard to tell if, in being interoperable, one platform needs to adopt the same moderation policies of another platform they are trying to interoperate with. If the answer is yes, then suddenly platforms are no longer getting to make their own editorial decisions; now they are making editorial decisions the government is forcing them to make. Which means that when they impose them against certain user speech it now is at the behest of the state and therefore likely a violation of those users speech rights, which are rights that protect their speech against state action.But even if a platform opts not to conform its moderation policies, the constitutional problem would remain. Because if these bills were to become law in their current form, the decision not to conform moderation policies might still be seen to flout the law's requirement for interoperability. And, at least initially, it would be up to the FTC to decide whether it does and thus warrants taking an enforcement action against the platform. But that means that the FTC could easily be in the position of making content-based decisions in order to decide whether the platform's content moderation decision (in this case not to conform) looks like an antitrust violation or not. This situation deeply concerned these Congressmen, who also happen to be of the belief that the FTC is a captured agency prone to making content decisions that conflict with their own preferred viewpoints. While their concerns generally seem overwrought, bills like these start to give them an air of legitimacy. Because regardless of whether the FTC actually is captured by any particular point of view or not, if it is going to make ANY enforcement decision predicated on any expressive decisions, that's a huge Constitutional problem, irrespective of which point of view may suffer or benefit from such government action.So while it is very difficult to credit the particular outrage of these Congressmen, their alarm illustrates the fundamental problem with these bills and other similar legislative efforts (including some anti-Section 230 bills that these Congressmen favor): these targeted businesses are not ordinary companies selling ordinary products and services where market forces act in traditional market-driven ways. These are platforms and services handling SPEECH. And when companies are in the speech-handling business we can't treat them like non-speech businesses without impinging on those speech interests themselves in an unconstitutional "make no law" sort of way.But that is exactly what Congress is deliberately trying to do. It is the government's displeasure with how these companies have been intermediating speech that is at the root of these regulatory efforts. It's not a case of, "These companies are big, maybe that's bad, and oops! Our regulatory efforts have accidentally implicated a speech interest." The whole acknowledged point of these regulatory efforts is to target companies that are "different," and the way they are different is because they are companies in the online speech business. Congress is deliberately trying to make a law that will shape how companies do that business. And the fact that its efforts are running headlong into some of the most provocative political speech interests of the day is Exhibit A for why the whole endeavor is an unconstitutional one.

Here's a quick update on infamous copyright troll Richard Liebowitz. As you may recall, after tons of stories about Liebowitz's horrendously bad activities in and out of court, federal district court Judge Jesse Furman finally threw the book at Liebowitz in an incredible ruling that literally catalogued dozens upon dozens of examples of Liebowitz lying to his and other courts. Furman issued both monetary and non-monetary sanctions. Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client.Liebowitz whined about how unfair it all was, and appealed the ruling. On Friday, the 2nd Circuit Court of appeals upheld the non-monetary sanctions, saying it will release its opinion on the monetary sanctions shortly. The ruling is pretty short (unlike Furman's explanation of all of Liebowitz's wrongdoing), but the general conclusion is: all the evidence says that Furman was exactly right, so his sanctions order was fine.

The police officer who set off months of anti-police violence protests has been sentenced to more than 22 years in prison. Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd by kneeling on his neck for nearly ten minutes… and for more than two minutes after another officer said he couldn't detect a pulse.This murder was carried out in broad daylight in front of several witnesses. Perhaps the most important witness was the one who filmed the entire killing: 17-year-old Darnella Frazier. Largely because of this recording, Chauvin was unable to elude justice.Two months after Chauvin's conviction on murder charges, Judge Peter Cahill has handed down a sentence nearly a decade longer than the 10-15 years recommended by state sentencing guidelines. This sentence is far more than Chauvin's lawyer felt was justified. His attorney asked for time served and probation. (Chauvin had been incarcerated for 199 days by the time he was sentenced.) But it's also less than what prosecutors had asked for: a 30-year sentence based on several aggravating factors.Judge Cahill didn't just hand down a sentence. He also issued a written order [PDF] explaining his decision to depart upwards from the sentencing guidelines. The order is thorough. And the list of aggravating factors includes the public nature of this killing and a reference to the witness who filmed the incident, creating an undeniable version of the facts that made it impossible for Chauvin to walk away from this.Here's the short version of the court's explanation for its sentencing variance:

It seems like we can't have even a peaceful week go by without yet another grandstanding fool in Congress introducing yet another terrible bill to destroy the internet. The latest comes from Senator Marco Rubio, who, last week, excitedly released a ridiculous bill that he claims will "crackdown on big tech algorithms and protect free speech." Of course, cracking down on algorithms is, itself, an attack on free speech. And the rest of his bill is nothing but an attack on free speech.The actual bill is a clusterfuck of bad ideas. It's called the "Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression" or "DISCOURSE" Act, and the only thing clever about it is the name.So what does the bill do? It says big internet companies can no longer moderate "viewpoints." Specifically, it says you no longer get Section 230 protections if you're a firm with a "dominant market share" who...

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So, we've noted for a long time how US telecom giants, facing neither competition nor meaningful oversight, never have to try very hard. Thanks to their regional monopolies and duopolies over broadband access, competitors in many areas never really force them to compete on price, expand access into lower ROI areas, or shore up atrocious customer service. And thanks to the federal and state corruption that protects these regional monopolies, lawmakers generally don't much care -- outside of some occasional empty lip service to that nebulous, causation free "digital divide" they all profess to care so much about.This week French-owned US cable giant Altice once again showcased what this apathy looks like in practice. The company announced it would be cutting the upload speeds on its broadband tiers by 86 percent, while still charging users the same rate. Why? Because with no decent options for most of its subscribers to flee to, there will be absolutely no penalty for it.Of course Altice can't be candid about that fact, so it tried (and failed) to find some other justification that sounded at least marginally coherent:

So, we've noted for a long time how US telecom giants, facing neither competition nor meaningful oversight, never have to try very hard. Thanks to their regional monopolies and duopolies over broadband access, competitors in many areas never really force them to compete on price, expand access into lower ROI areas, or shore up atrocious customer service. And thanks to the federal and state corruption that protects these regional monopolies, lawmakers generally don't much care -- outside of some occasional empty lip service to that nebulous, causation free "digital divide" they all profess to care so much about.This week French-owned US cable giant Altice once again showcased what this apathy looks like in practice. The company announced it would be cutting the upload speeds on its broadband tiers by 86 percent, while still charging users the same rate. Why? Because with no decent options for most of its subscribers to flee to, there will be absolutely no penalty for it.Of course Altice can't be candid about that fact, so it tried (and failed) to find some other justification that sounded at least marginally coherent:

About a month ago, the governor of Florida signed a showboating bill into law -- one that made it illegal to deplatform people running for office. Well, mostly. It exempted "theme park-associated" websites from the bill to appease the state's Disney overlords, but subjected every other site accessible in Florida to First Amendment violations in the form of compelled speech.The absurdly unconstitutional bill was immediately challenged. NetChoice and CCIA beat everyone else to the courthouse, suing the state to block the law from being enforced. The plaintiffs pointed out the obvious flaws in the bill, as well as its hypocritical exemption of Disney sites from enforcement. It also pointed out this new law was nothing more than performance art that used both the First Amendment and Section 230 as expendable foot soldiers in Governor Ron DeSantis' war on imagined anti-conservative bias. The following is from NetChoice/CCIA's request for an injunction:

This week, both our winners on the insightful side come from our story about how a stupid patent is interfering with a new crowdfunded toy. In first place, it's samuelhopkins, who got lots of well-deserved votes for tracking down the specific patent:

Five Years AgoThis week in 2016, the Supreme Court was chipping away at the Fourth Amendment while the FBI was continuing to use its bad facial recognition database and getting away with problematic warrants and hacking — and congress was seeking to legalize more FBI abuses (in an attempt that narrowly failed). The DOJ was fighting against privacy advocates, and CIA director John Brennan was bizarrely claiming that only the US had encryption technology. We were also disappointed to see Twitch bring CFAA and trademark claims against bot operators.Ten Years AgoThis week in 2011, Righthaven was losing lawsuits left and right, and the CEO was not taking it well. Sony was fighting against PS3 modding and Microsoft was claiming it could use the DMCA to block competing Xbox accessories, while Universal launched a war on popular hip-hop sites and blogs, which even swept up 50 Cent's own website. A new court filing explained how ICE's domain seizures violate the First Amendment, while Senator Leahy was praising the agency's initiative. We also took a look back at the many things that people thought would kill the music industry in both the analog and digital eras.Fifteen Years AgoThis week in 2006, the NY Times was in the midst of one of its many paywall experiments while the LA Times was subjecting reporters to stifling web filters. Blockbuster was fighting against Netflix's patents while GoDaddy was sued over a patent on server auto-configuration. We wrote about how ISPs were screwing everyone, and how their cooperation with the NSA was boosting the encryption market. Meanwhile, social media sites were booming but struggling to figure out how to make money, and of course still facing a variety of vague freakouts.

When it comes to being crazy restrictive on all things IP coupled with being amazingly combative with making lots of properties readily available for legitimate purchase, Nintendo barely needs an introduction. This is the company that has taken down ROM sites for classic games all over the internet, taken down fan-made games that use Nintendo properties, taken down all manner of fan-made ports of Nintendo properties onto other hardware, and has even taken down fan-made creations that involve putting Nintendo characters and the like into 3rd party creative games and software. Now, to be clear, Nintendo can do all of this. The open question has always been why it bothers to do so. What threat is a fan-game to legitimate Nintendo titles? Especially when Nintendo often times makes it quite difficult to legitimately get classic Nintendo games on its current hardware.Case in point, Nintendo recently announced a new Metroid side-scroller that has Metroid fans very, very excited. So excited that some of them want to go back and play the classic Metroid games before playing the new title, only to find out that on the Nintendo Switch you just can't.