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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:

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A massive data leak has confirmed what's been suspected (and reported by security researchers like Citizen Lab) for a long time: Israeli malware developer NSO Group's powerful cellphone snooping tools have been used to target journalists, activists, and dissidents all over the world.The Guardian and 16 other media outlets have dug into the data leak and uncovered some pretty disturbing info about NSO's Pegasus malware, which allows those deploying the spyware to extract messages, record phone calls, and surreptitiously activate microphones.Who's in the list of phone numbers seen by the Guardian? Lots and lots and lots of journalists.

For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills -- a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.One 2019 Consumer Reports study found that about 24% of consumer bills are comprised of bullshit fees, generating cable giants $28 billion in additional revenue annually. The problem is just as bad over in broadband (see Centurylink's utterly nonsensical "Internet Cost Recovery" fee). Often cable and broadband companies will try to give such fees official-sounding names like "regulatory recovery" so that consumers falsely blame government for being nickel-and-dimed. But between TV fees, hardware fees, usage fees, and other surcharges, bundled customers dole out a small fortune every year for absolutely nothing.It's fraud, but fraud that has somehow been normalized over decades.I've been writing about this problem for the better part of twenty years, so it's disheartening to see the Washington Post still covering this bullshit in 2021 without much having changed:

Five Years AgoThis week in 2016, the DEA seemed to be making some kind of effort to curb its abuse of warrantless wiretaps, while a report in the UK showed that police improperly accessed data on citizens thousands of times, and Sweden was considering making DNA that had been donated purely for medical research available to cops and insurance companies. Two senators were speaking out against efforts to expand FBI surveillance, and one of them who is well known to Techdirt readers — Ron Wyden — joined the podcast to discuss it. This was also the week that Pokemon Go took the world by storm, and we had an early mention of what is now a household name with a post about AstraZeneca trying to extend a patent.Ten Years AgoThis week in 2011, we wrote about why PROTECT IP would fail in its goals because people would never accept it, while lobbyists were ramping up the pressure to get it passed. Righthaven was accused of avoiding paying legal fees it owed and was ordered to stop delaying, while it continued to suffer loss after loss. And the Monkey Selfie drama continued, with a news agency telling us to remove the photos from our post and the photographer claiming he owned the copyright because he thought the picture might happen, while we looked closer at why the photo is likely in the public domain.Fifteen Years AgoThis week in 2006, a judge handed down a worrying ruling that said it infringes copyright to edit movies you've bought. The recording industry in the UK was asking ISPs to shut down the accounts of file sharers, but they were not convinced by the evidence, drawing the disappointing ire of indie record labels that were failing to innovate. There was also a lot of think-of-the-children panic happening, and we took a look at the overbearing ways people were trying to keep kids "safe" by tracking and monitoring them, while some in congress were blaming MySpace for troubled children.

Honestly, this is the last thing I wanted to be writing about today. First, let's make this clear: when I've seen political officials -- both Democrats and Republicans alike -- threatening to punish companies for 1st Amendment protected activities, I call it out. Indeed, I've been highlighting these kinds of issues for years -- and it has nothing to do with politics or ideology or who I like or who I don't like.It's a simple fact: the US government should not be threatening or coercing private companies into taking down protected speech.But, over the past few days there's been an absolutely ridiculous shit storm falsely claiming that the White House is, in fact, doing this with Facebook, leading to a whole bunch of nonsense -- mainly from the President's critics. It began on Thursday, when White House press secretary Jen Psaki, in talking about vaccine disinfo, noted that the White House had flagged vaccine disinformation to Facebook. And... critics of the President completely lost their shit claiming that it was a "First Amendment violation" or that it somehow proved Donald Trump's case against the social media companies.It did none of those things.On Friday, rather than recognizing how this whole line of argument would be weaponized, the White House doubled down, again highlighting how it was upset about misinformation about vaccines on social media, and then when asked directly about "Facebook" Joe Biden said "they're killing people." This is, of course, wrong. Facebook is not killing people. Some idiots on Facebook are spreading misinformation and disinformation that is likely causing people to die, but we should be putting the blame where it needs to be put. On the people spreading the disinformation.Either way, the fact that the government might flag to social media companies that certain content is disinformation does not, in any way, reach the level of coercion or demands that would make it a 1st Amendment violation. There was no indication that the companies were told to take it down. There's no indication that anything happened other than the administration saying "Hey, this stuff is dangerous." And, I mean, if you're going to get mad at administrations demanding social media posts get taken down, it certainly looks like the Trump administration went way further than the Biden administration did in demanding such things (like that time with regards to posts advocating for the removal of confederate statues). I don't remember any of the folks now screaming about the Biden administration complaining when Trump actually did demand posts be removed.Of course, that still doesn't make this necessarily the right approach by the White House -- and frankly, it's astounding that they walked right into this seemingly unaware of how it would all play out. Ken White wrote out the perfect way in which a smart White House would have dealt with this issue:

A group of California police officers has decided other people's expressive rights end where their personal offense begins. Five Palo Alto police officers are suing the city, along with their own police department, for somehow discriminating against them by allowing artists to create a street-long Black Lives Matter mural these officers passed on their way to work. (Well, at least up until the mural was removed by the city in November 2020, less than six months after it was first painted.)The complaint contends harassment begins with the letter "E." From the lawsuit [PDF]:

I'm beginning to think that Montana Senator Steve Daines really, really doesn't like the 1st Amendment. Instead, he likes to wrap himself in a faux American flag as he pretends to be patriotic, while attempting to stamp out the rights the 1st Amendment provides to Americans. Last week, we wrote about his attempt to amend the Constitution (specifically, chipping away at the 1st Amendment), to make flag burning illegal.This week, he decided to just spit on the 1st Amendment itself and introduce yet another unconstitutional social media moderation bill that would amend Section 230. Called the "Preserving Political Speech Online Act," the bill does a few different things, but the key one seems to be... to make politicians like himself a special protected class. Because, Senators like himself, worth over $30 million, clearly are an oppressed class.There's some stuff about how if you take political advertisements from some candidates you have to take them from all candidates. But the really sketchy stuff is in how it modifies Section 230. It would change Section (c)(2) -- the part of Section 230 that is rarely relied upon, regarding "good faith" blocking of content -- such that the "otherwise objectionable" bit is deleted, and replaced with "threatening or promoting illegal activity." It would also remove the line that sites are protected for blocking material "whether or not such material is constitutionally protected."Of course, this misunderstands the nature of both Section 230 (and how (c)(1) already protects most moderation) and the 1st Amendment, which already protects most content moderation editorial choices as well. But, then Daines has to take it a step further and make absolutely sure his bill is blatantly unconstitutional. Because it also adds in a prohibition on certain types of moderation. It says you can no longer moderate "political speech." Apparently Daines wants to make sure all Nazis are protected when they promote fascism. His bill would add in this bit of unconstitutional garbage:

I'm beginning to think that Montana Senator Steve Daines really, really doesn't like the 1st Amendment. Instead, he likes to wrap himself in a faux American flag as he pretends to be patriotic, while attempting to stamp out the rights the 1st Amendment provides to Americans. Last week, we wrote about his attempt to amend the Constitution (specifically, chipping away at the 1st Amendment), to make flag burning illegal.This week, he decided to just spit on the 1st Amendment itself and introduce yet another unconstitutional social media moderation bill that would amend Section 230. Called the "Preserving Political Speech Online Act," the bill does a few different things, but the key one seems to be... to make politicians like himself a special protected class. Because, Senators like himself, worth over $30 million, clearly are an oppressed class.There's some stuff about how if you take political advertisements from some candidates you have to take them from all candidates. But the really sketchy stuff is in how it modifies Section 230. It would change Section (c)(2) -- the part of Section 230 that is rarely relied upon, regarding "good faith" blocking of content -- such that the "otherwise objectionable" bit is deleted, and replaced with "threatening or promoting illegal activity." It would also remove the line that sites are protected for blocking material "whether or not such material is constitutionally protected."Of course, this misunderstands the nature of both Section 230 (and how (c)(1) already protects most moderation) and the 1st Amendment, which already protects most content moderation editorial choices as well. But, then Daines has to take it a step further and make absolutely sure his bill is blatantly unconstitutional. Because it also adds in a prohibition on certain types of moderation. It says you can no longer moderate "political speech." Apparently Daines wants to make sure all Nazis are protected when they promote fascism. His bill would add in this bit of unconstitutional garbage:

One of the last hopes of getting the EU's terrible upload filters thrown out was an intriguing legal challenge brought by Poland at the region's highest court, the Court of Justice of the European Union (CJEU). As is usual in these cases, a preliminary opinion is offered by one of the CJEU's special advisers. It's not binding on the main court, but can offer interesting hints of what the final judgment might be. Unfortunately, in his analysis Advocate General Saugmandsgaard Øe recommends that the CJEU should dismiss the action brought by Poland (pdf), because in his view Article 17 of the EU Copyright Directive is compatible with freedom of expression and information.That's a huge disappointment, since many hoped he would unequivocally rule that upload filters breach fundamental rights. However, the Advocate General's opinion is by no means a complete disaster for users of online sharing services. He recognizes the right of people to make "legitimate use of protected subject matter." Specifically, that means people must be able to rely on the EU's exceptions and limitations to copyright. Moreover:

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As you'll recall, Florida's social media bill was declared unconstitutional by a federal judge a couple weeks ago. The state has already moved to appeal that decision, so we'll have to see how the judges on the 11th Circuit feel about all of this. However, apparently the case in the lower court is still moving forward in some way (I had assumed that after the preliminary injunction and appeal that the case would be stayed until the appeal was decided, but apparently not? Understanding civil procedure is an impossibility).Earlier today Florida filed its response to the lawsuit, which is... not much. It's basically this sentence over and over again:

The US has always had a fairly pathetic definition of "broadband." Originally defined as anything over 200 kbps in either direction, the definition was updated in 2010 to a pathetic 4 Mbps down, 1 Mbps up. It was updated again in 2015 by the Wheeler FCC to a better, but still arguably pathetic 25 Mbps downstream, 3 Mbps upstream. As we noted then, the broadband industry whined incessantly about having any higher standards, as it would only further highlight industry failure and a lack of competition.Unfortunately for them, pressure continues to grow to push the US definition of broadband even higher. Back in March, a coalition of Senators wrote the Biden administration to recommend that 100 Mbps in both directions become the new baseline. And last week, the General Accounting Office (GAO) issued a new report noting that the current standard of 25 Mbps down, 3 Mbps up is simply too pathetic to be useful. The focus was on small businesses, but the GAO politely noted that the FCC should update its definition soon:

Law enforcement officers have no legal obligation to protect and serve. The words look nice on badges and insignias, but courts have said this is only a nicety, not a guarantee.But that doesn't mean officers can abandon any pretense of protection and service. There are some limits enforced by precedent. Neglecting to take complaints and threats seriously can have consequences. The difference is the definition. There's no due process right to protection and service. But the government does have an obligation under the Fourteenth Amendment to ensure no citizen receives less protection and service than others.That fine line was crossed in this tragic case handled by the Tenth Circuit Appeals Court. And it all could have been avoided if the officers involved didn't decide to give one of their own some unequal protection. The decision [PDF] opens by briefly alluding to this fine line.

For what it's worth, lawsuits against Apple over emojis are not entirely unheard of. You may recall that Apple was sued by a woman who claimed it was copyright infringement for Apple to have emojis that represent more diverse communities, for instance. But for a truly fun story about Apple being sued, and winning its defense, over emojis, well, you have to go to a case between Apple and a company called Social Tech.

We warned that this was likely back when Google announced plans to phase out third-party cookies in Chrome (something all the other major browser makers had already done): that this would be used to attack Google as being anti-competitive, even as it was pro-privacy. Privacy and competition do not need to be in conflict, but they can be. And what's happening now is that more sketchy ad companies are abusing the constant drumbeat and fear over "Big Tech" to attack privacy protections -- but that behind the scenes story is getting missed as people are more focused on more breaking news about how Google has decided to push back its move on 3rd party cookies for two more years.Issie Lapowsky, over at Protocol, has a must read story on how sketchy ad and data brokers have crashed the W3C, riding a wave of anti-big tech feelings to push for worse solutions for everyone as it comes to privacy (of course, Facebook is on the wrong side of this as well -- it's basically all the sketchy companies and Facebook against all the other companies). It's quite a story.

A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.It's been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson -- who decidedly did not throw the object that struck the officer.The officer's argument was that Mckesson's organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.

The Washington Examiner is popular among conservatives, so it's good to see them publish a wonderful article by Hannah Cox completely dismantling the various arguments made by so many Republicans these days, that the government should force websites to carry all speech. In particular, she targets Donald Trump's pathetic lawsuits against Facebook, Twitter, and YouTube with the brilliant title: "You're not entitled to a platform, boomer." Of course, if only it were true that it were just clueless boomers making this argument, but the point stands.What I like most about the article, though is that it hits on just how incredibly entitled and hypocritical these arguments have been -- completely tossing in the garbage what had been seen as bedrock conservative viewpoints about private property and not playing the victim all the time.

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Grandstands and bandwagons: that's what's headed to Social Media Town. Professional victims -- far too many of them earning public money -- have produced a steady stream of stupid legislation targeting social media platforms for supposedly "censoring" the kind of the content they really like: "conservative views." Convinced by failed-businessman-turned-failed-president Donald Trump (and his herd of Capitol Hill toadies) that social media has it in for anyone but the leftiest leftists, a bunch of legislators have hacked up "anti-censorship" bills that aim to protect free speech by trampling on free speech.The latest (but surely not the last) legislator to grab his bandstand and board the bandwagon is Wisconsin state Senator Julian Bradley. Bradley seems convinced his low Twitter polling must be due to social media companies keeping him down.

For years, US wireless carriers have had a... somewhat nebulous relationship with the dictionary definition of "unlimited." As in, for the better part of two decades they've sold wireless data plans professing to be "unlimited," then included all manner of heavy handed limitations, often buried in mouse print. Verizon received wrist slaps for this way back in 2007. AT&T recently settled accusations that it lied to consumers about the throttling limitations in the company's "unlimited" plans (impacted consumers got all of $22 for participating in the class action).None of these penalties were meaningful enough to really change industry behavior. AT&T and Verizon for example now charge more for "unlimited" plans that don't throttle 4K or HD video. And you need to pay more if you want to use your phone and "unlimited data plan" as a mobile hotspot. Sprint at one point even tried throttling all games, music, and movies unless users paid more.Somehow we normalized paying wireless providers more money just to avoid arbitrary restrictions, then celebrate when they ease off even modestly. For example this week, AT&T announced that users that buy the company's most expensive wireless plan ($85-per-month "Unlimited Elite) will no longer see their connection throttled after a set amount of usage. In short, if you want AT&T to get close to adhering to the dictionary definition of "unlimited," you'll need to pay more:

We've already written a few times about how Japan's onerous Unfair Competition Prevention Law has created what looks from here like a massive overreach on the criminalization of copyright laws. Past examples include Japanese journalism executives being arrested over a book that tells people how to back up their own DVDs, along with more high-profile cases in which arrests occurred over the selling of cheats or exploits in online multiplayer video games. While these too seem like an overreach of copyright law, or at least an over-criminalization of relatively minor business problems facing electronic media companies, they are nothing compared with the idea that a person could be arrested and face jail time for the crime of selling modded save-game files for single player game like The Legend of Zelda: Breath of the Wild.

Summary: Since its debut in 2007, Twitter hasn't changed much about its formula, except for expanding its character limit from 140 to 280 in 2007 and adding useful features such as lists, trending topics and polls. Twitter has embraced images and videos, adding it to its original text-only formula, but seemed to have little use for audio. That changed in June 2020 when Twitter announced it would allow users to upload audio-only tweets. Remaining true to the original formula, audio tweets were limited to 140 seconds, although Twitter will automatically add new audio tweets to a thread if the user's recording ran long.With Twitter engaged in day-to-day struggles moderating millions of tweets, critics and analysts expressed concern the platform would be unable to adequately monitor tweets whose content couldn't be immediately discerned by other users. The content would be unable to be pre-screened by moderators -- at least not without significant AI assistance. But that assistance might prove problematic if it caused more problems than it solved by overblocking.There was also the potential for harassment. Since abusive audio tweets relied heavily on other Twitter users reporting, abusive audio tweets could be posted and remain up until someone noticed and reported it.Another issue audio tweets raised wasn't about proactively flagging and removing unwanted content, but that this new offering excluded certain Twitter users from being a part of the conversation.

I know that the internet is taking quite a beating these days, but we should not forget the promise of the internet, and how it can be used for important movements. The protests in Cuba are a perfect example of this. As you probably know, Cuba has had very limited access to the internet, though it has expanded recently. Twenty years ago we wrote about efforts to build bootleg internet connections in Cuba, and a decade later, Fidel Castro suddenly talked about how important the internet was, noting that he had become something of an internet junkie himself. It's really only in the last few years that Cuba has made it really possible for people to have internet in their homes, but only via the state operated ETECSA with fairly limited speeds.Of course, access to information (and people) is a two-edged sword in many ways, and as many authoritarian governments have discovered in the past, the general public might not go in the direction you want them to go in. And thus, the Cuban government did what so many authoritarians have done before: as the protests picked up, the internet began to shut down. It wasn't a full internet cut-off, but what appeared to be targeted at specific messaging apps. According to Kevin Collier at NBC News:

Judge Roy Moore -- former Senate hopeful and twice-removed-for-misconduct Alabama Supreme Court justice -- has lost his lawsuit against satirist Sacha Baron Cohen. Having agreed to be on the receiving end of some satire (albeit not knowingly), Roy Moore sued Cohen after falling victim to a prank in which Cohen (performing as his character General Erran Morad) waved an electric wand he claimed could detect sexual predators. The wand beeped while close to Roy Moore.The bit was, of course, a reference to the cascade of sexual misconduct allegations that rained down on Roy Moore during his run for a Senate seat. Moore claimed that he never would have agreed to this if he hadn't been duped by Cohen and his production team into thinking he was actually in New York City to receive a prestigious award for his "strong support of Israel." Moore also claimed the pedophile wand beeping in his presence was defamation -- and $95 million of it at that.Well, it isn't defamation and if there was any duping (and there was), Roy Moore agreed to it. The New York federal court handling the lawsuit brought by Moore and his wife, Kayla, has dismissed the case with prejudice, using both contract law and the First Amendment to do so.Moore's claims fail because he signed a Standard Consent Agreement (SCA) in which he agreed to do (and, more importantly, not do) several things. Because this agreement was willingly signed, all three of Roy Moore's claims (infliction of emotional distress, fraud, defamation) have already been waived.Here's the court [PDF] spelling it out the details Moore apparently failed to read when he signed the agreement:

Just because government officials may not like the tone of the criticism they're receiving doesn't mean they can use their government power to mandate civility. That's the determination of the Sixth Circuit Appeals Court, which has struck down part of an Ohio school board's rules of (public) engagement.Following a school shooting in 2016, the Madison (OH) Local School District came up with a preventative plan -- one that involved allowing school staff to carry concealed weapons. This didn't play well with some parents. It also didn't play well with some of the district's students, who staged a walkout to protest gun violence. Following the discipline of those students, some residents decided to attend a school board meeting to express their feelings about the rule change and the punishment of students for their expressive speech.Madison school district meetings are governed by the following "Public Participation Policy:"

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Back in April, we wrote about how Steven Biss, who has become infamous for his flurry of frivolous defamation lawsuits -- many of which are on behalf of Congressional Representative Devin Nunes as well as an odd collection of wacky people in Nunes' orbit -- had lost yet another case, but that the court had rejected sanctioning Biss. That didn't last long. That ruling was in the 4th Circuit appeals court in the case Biss brought on behalf of Russian-born academic Svetlana Lokhova against a Cambridge academic, Stefan Halper, and a variety of media organizations. I'm not going to recount all the details of the case again. You can read those in our original post. Just know that it seemed to be a pretty obvious SLAPP suit. Much of it was filed after the statute of limitations had passed, on statements that were clearly not defamatory, and, in at least one case, appearing to sue the wrong party. However, the District Court judge and the Appeals Court both found that while Biss had a long history of bad behavior in court, they didn't want to take the further step of sanctioning him. Yet. Though both courts made it clear that further shenanigans could change that.I will give you just one guess what happened next. And I'm sure you'll get it right.I had somehow missed that while Biss/Lokhova were getting benchslapped in that case, they had decided it would be a good idea to file another frivolous SLAPP suit against Halper. This case involved claims that Halper had somehow defamed Lokhova (again) and tortiously interfered with her publishing contract, regarding a book she was publishing all about Steven Halper (which Halper insists itself is defamatory towards him). Halper had sent a letter to the publisher and distributor of the book arguing that Lokhova's book was defamatory, and then Biss/Lokhova sued Halper again. They failed to mention that they had already sued Halper, and that the cases were related, which probably didn't make the court very happy in the first place.Judge Leonie Brinkema seems to have had enough. Recognizing that her original lenient order not to issue sanctions in the last case was ineffective, she has finally recognized that Biss seems unwilling to back down. So she has now order both Biss and Lokhova to pay Halper's legal fees in this case.

We've repeatedly noted how the "right to repair" movement has been gaining a full head of steam as consumers, independent repair shops, schools, farmers, and countless others grow tired of corporations' attempts to monopolize repair. Whether it's Sony and Microsoft creating repair monopolies for their game consoles, Apple bullying independent repair shops, or John Deere making it a costly hassle just to fix a tractor, the more companies restrict access to cheap repair, parts, tools, and documentation, the more this movement seems to grow.We're now reaching an obvious tipping point. The federal government and more than two dozen states have proposed new right to repair laws. The recent Biden executive order also urged the FTC to do everything in its power (which is limited under the FTC Act) to address the problem.And last week, Apple co-founder Steve Wozniak jumped into the fray to point out that after finally studying the issue at length (he insists his "busy schedule" prevented this until now), he's now a big fan of meaningful right to repair reform:Ironically, the company Woz once founded has proven to be the most obnoxious player on this front. Apple's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary as are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used, harming consumers and the environment alike). The company also routinely lies about what right to reform legislation actually does, trying to conflate its desire to protect revenues with altruistic worries about public safety.After researching the issue, Woz says he now "totally supports" the right to repair movement and that open-source technology and standards were absolutely instrumental in Apple's early successes and popularity, whether it was their ability to manipulate video input on older TVs, or shipping the Apple I with full design specs so users could tinker with the device once they got it home:

Any review of the stories we've done on DRM in video games will reveal two main categories as far as themes for those posts. The first is that DRM is laughably ineffective. DRM is an arms race that only ever has one winner: those who seek to circumvent it. Even the once-vaunted Denuvo DRM, thought, for some time, to be undefeatable, has now been reduced to being an industry joke. The other theme is how DRM has awful effects on paying customers and absolutely zero negative effects on those who commit copyright infringement. So, what is DRM? A useless platform used by video games with only one real impact: annoying paying customers.But one point that often gets lost is that cracked versions of games that include annoying DRM aren't just functioning as copyright infringement (though they certainly are primarily that), but also that these cracked versions can also be legitimately seen as fixing these broken games. For an example of this, one need only look at the PC gaming experience surrounding Resident Evil 8: Village, which is fundamentally broken on the PC for paying customers.The background here is that Capcom actually layers two different DRM systems on the game, apparently as a method for making the game much harder to crack. Instead of being cracked at the time of release, in May, the game was only cracked here in July. The problem is that this 2 months worth of protection appears to have come at the cost of the game being able to keep up when players do very necessary things in a Resident Evil game like, oh say, shooting zombies.

Last month, a federal judge easily declared Florida's social media law (complete with its Disney-inspired theme park exemption) as unconstitutional. It wasn't a hard call. Florida had tossed out a bunch of wacky arguments and the judge smacked down each and every one of them. He even pointed out that if you didn't use strict scrutiny (as you must) to analyze whether the law violated the 1st Amendment, it would still be unconstitutional.But, of course, as we discussed with Florida legislator Anna Eskamani last week, this was never about anything more than trying to kick up yet another culture war. So it should come as little surprise that Florida has now officially moved to appeal the district court ruling. This will shock no one, but that doesn't mean we shouldn't be disappointed. This will be yet more of a waste of Florida taxpayer money on a frivolous legal battle in a state that has some pretty significant and real problems at the moment.Hopefully, the 11th Circuit makes quick work of this. The district court judge, Robert Hinkle, of course, expected all of this, and much of his ruling seems drafted to convince judges on the 11th Circuit (he more or less said as much in the hearing before his ruling). But, these days, you still do need to worry that some confused judge will suddenly get infatuated with a dumb idea, and make a total mess of things. Even though to basically every expert this law is obviously unconstitutional, no one should breathe easy until after the courts have thoroughly stomped on its dead corpse and made that abundantly clear.

Outside of the company's unwavering fanboys, it's fairly clear to most folks that the honeymoon phase of the planet's relationship with Tesla is coming to a close. Whether it's regulatory scrutiny of the company's premature and often inaccurate self-driving claims, the loss of significant emissions credits in the US and Europe, frustration at the often stupid shit that comes out of Elon Musks' mouth, legal issues related to the SolarCity acquisition, or major quality headaches related to the company's solar installations and cars alike, the bloom has, as they say, fallen from the rose.That also extends to China, where Tesla's early successes appear to have hit a bit of a roadblock. Part of that roadblock recently emerged in the form of a massive recall of nearly every Tesla sold in China due to software issues. Responding to bipartisan US aggressiveness (see: TikTok), the Chinese government has also banned all Teslas from being used by government agencies, citing potential privacy natsec concerns. After initially rolling out the red carpet, Chinese officials have sharply shifted their tone over the better part of the last year.As Bloomberg notes, genuine concerns about Tesla safety, government anger over Tesla hubris, and a souring US/China relationship appear to have fused into one big headache for the company:

Now that it's been revealed the FBI -- along with an unnamed conspirator linked to encrypted phone development -- created a honeypot device to harvest communications between suspected criminals, the backdoored devices are making their debut in the (non-criminal) public domain.Following the exposure of the FBI-created "Anom" chat service -- a backdoored service placed on secure phones supposedly only sold to members of large criminal organizations -- multiple law enforcement agencies announced the arrest of dozens of suspected criminals. The devices, however, are still out there. And they're showing up on classified ad sales sites and potentially suckering in people just looking for a cheap Android device.Whatever the price is, you're getting screwed, as Joseph Cox reports for Motherboard.

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As you know, last week Donald Trump sued Facebook, Twitter, and YouTube in ridiculously dumb cases (which seemed to only really serve the purpose of continuing his culture grievance war and to be used as a fundraising hook). In each case, they claimed (incorrectly) that the private companies violated the 1st Amendment by kicking Trump and others off the platform and that Section 230 itself was somehow unconstitutional.Two days later, it appears that someone on the legal team realized that when you file a lawsuit claiming that a federal law is unconstitutional, you have to file a notice of constitutional question, which effectively alerts the DOJ/Attorney General that someone, somewhere is challenging the constitutionality of the law.Trump has now done so with identical such filings for YouTube, Twitter and Facebook. The notice is as short and sweet as it is ridiculous:

GETTR, the Twitter clone created by former Trump advisor Jason Miller, seems to have rolled out just as smoothly as every other attempt to replace the social media service that's still inexplicably popular with people who claim to hate it for moderating their speech.It's yet another "free speech" platform that claims it upholds the lofty ideals of allowing those banned from other, more functional sites to speak their minds… just as long as said mind speech does not include any of the following: