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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:

The city of Lexington, Kentucky recently passed a ban on no-knock raids by the local police department. A long string of no-knock raids that have ended tragically likely contributed to this, but a recent high-profile raid in which a 26-year-old black ER technician was shot and killed by Louisville, Kentucky police officers probably hit closest to home.In that raid, officers did not announce their presence. Bursting into the house, they were met by gunfire from one of the house's residents who thought he was being robbed. (He had called 911 prior to arming himself.) While the officers did knock, they apparently did not declare they were police officers before breaking down the door. The officers returned fire, killing Breonna Taylor. The entire thing was predicated on an drug investigation that appeared to be at least partially fabricated.Lexington has its own experience with botched drug raids. A no-knock raid in 2015 terrorized the residents of the wrong house, most of whom thought they were being robbed. It wasn't until the residents were surrounded by officers pointing guns that the officers realized they had the wrong address. The push to end no-knock raids began then, prompting opposition from law enforcement.

While most folks didn't notice ahead of the holiday weekend, the FTC on Friday announced it would be giving chipmaker Broadcom a bit of a wrist slap after the agency found it had become an "illegal monopoly." In the FTC's complaint (pdf), the agency notes that Broadcom "illegally monopolized" both the cable modem/gateway and cable set top box markets by preventing its customers from buying products from other vendors. It did this by forcing both OEMs and service providers into long-term agreements that prevented them from purchasing chips from Broadcom's competitors, then bullying them if they went off script:

Let us gaze again in shock at the pathetic weakness of powerful people, unable to handle targeted criticism without resorting to violating people's rights. That's right, we're talking about cops again.Certain states have added law enforcement officers to the list of protected groups that can benefit from hate crime laws. Cops are historically a very powerful group. They have not been oppressed in any way since the inception of law enforcement -- an idea that really took off when slave owners wished to see their dehumanizing, minimal investments protected.Hello, Utah. What the actual fuck? (via C.J. Ciaramella and Reason)

My friend and colleague Sherwin Siy died suddenly last week, way before his time, way before any of us were ready to lose his friendship, and way before the Internet and the principles he defended could afford to be without his help defending them.There are some people out there with the very silly idea that the only reason people advocate for the sorts of issues like we do here at Techdirt is because someone is paying us to. The thinking seems to go that "but for" this monetary carrot none of us would bother.Nothing could be further from the truth. Those of us who fight for these issues do so because we fervently believe they are the right positions to serve the public interest, the Internet, and ultimately the world. Taking on these battles is in many ways a calling, something we feel personally compelled to do.In the case of both Sherwin and myself (and many others, I'm sure), it is also what drove us to go to law school. As he explained in this interview about his most recent work at Wikimedia, as Lead Public Policy Manager:

The saga of how RomUniverse, a site dedicated to offering ROMs for classic Nintendo games, came to its end is both frustrating and very dumb. Back in 2019, Nintendo launched a massive war on ROM sites, coinciding with the release of a mini version of Nintendo's NES console. Eventually, the company's sights turned to RomUniverse. Run solely by Matthew Storman, the site first tried and failed to crowdfund its legal expenses, made the lame argument that somehow the first sale doctrine meant that Storman could legally offer up digital versions of bought Nintendo games, only to see Storman represent himself in court and eventually lose. While Nintendo always had the law on its side, it was also true that sites like RomUniverse existed for a long, long time and Nintendo wasn't injured enough by any of this for it to be on the radar prior to the ROM War of 2019. In fact, I would argue that ROM sites for a long, long time kept up the interest in these classic games that created a market for Nintendo's classic console releases.I would also argue that the whole thing was a giant waste of time and money, an assertion backed up by the fact that the victorious Nintendo reportedly can't even get $50 a month out of Storman, despite court orders.

Courthouse News Service has obtained a significant win in its lawsuit against court clerks in Virginia -- one that soundly affirms the First Amendment right to access court documents. This isn't the only place CNS is fighting for its First Amendment rights, but this decision affects everything in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and Virginia.Here's the battle Courthouse News Service has been fighting on several fronts, assisted by several other news agencies and First Amendment activists.

If you've been following our coverage of Florida's recent law about social media content moderation, you know it hasn't been going well — it was an insane bill that was quickly shut down by an injunction from a judge who could see how obviously unconstitutional it was. But the fight isn't over, so this week we're joined by Florida Representative Anna Eskamani, one of the most vocal critics of the bill in the state legislature, to discuss how this all happened and what's going to come next.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.

The FBI has spent thousands on social media monitoring software. These contracts are public, making it literally unbelievable the agency has managed to stave off FOIA requests by handing out "neither confirm nor deny" non-answers. A court didn't buy the FBI's excuse for its Glomar, pointing out that confirming public information would not give criminals a heads-up on surveillance software the FBI is currently using.The FBI's inability to honestly discuss its social media monitoring programs continues. The January 6th raid on the US Capitol building has resulted in hundreds of arrests. A lot of the evidence for these prosecutions has come from social media posts by members of the ad hoc raiding party.The FBI continues to provide contradictory responses when questioned about its social media monitoring programs. Its Congressional testimony has kind of eluded direct questions about the FBI's incursions into First Amendment territory -- something the FBI is now using to explain why it wasn't more aware of the impending threat prior to January 6th.Quinta Jurecic's post for Lawfare points out the FBI lack of awareness was somewhat stunning, given the vast amount of publicly available information circulating social media prior to the Capitol raid.

Yes, it can always get dumber. The news broke last night that Donald Trump was planning to sue the CEOs of Facebook and Twitter for his "deplatforming." This morning we found out that they were going to be class action lawsuits on behalf of Trump and other users who were removed, and now that they're announced we find out that he's actually suing Facebook & Mark Zuckerberg, Twitter & Jack Dorsey, and YouTube & Sundar Pichai. I expected the lawsuits to be performative nonsense, but these are... well... these are more performative and more nonsensical than even I expected.These lawsuits are so dumb, and so bad, that there seems to be a decent likelihood Trump himself will be on the hook for the companies' legal bills before this is all over.The underlying claims in all three lawsuits are the same. Count one is that these companies removing Trump and others from their platforms violates the 1st Amendment. I mean, I know we've heard crackpots push this theory (without any success), but this is the former President of the United States arguing that private companies violated HIS 1st Amendment rights by conspiring with the government HE LED AT THE TIME to deplatform him. I cannot stress how absolutely laughably stupid this is. The 1st Amendment, as anyone who has taken a civics class should know, restricts the government from suppressing speech. It does not prevent private companies from doing so.The arguments here are so convoluted. To avoid the fact that he ran the government at the time, he tries to blame the Biden transition team in the Facebook and Twitter lawsuits (in the YouTube one he tries to blame the Biden White House).

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Back in 2015, frustration at John Deere's ham-fisted repair restrictions and draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after onerous restrictions not only significantly drove up repair costs, but forced owners to often haul their equipment hundreds or thousands of miles to an authorized repair location.John Deere's multi-year promise to do a better job providing access to tools, documentation, and repair options simply never materialized. And of course John Deere is just one of numerous companies engaged in this kind of behavior across numerous sectors, driving major public support for proposed legislation in more than a dozen states that would put a major dent in technology repair monopolies.In a small win for farmers and right to repair advocates, Biden is apparently planning to include some right to repair mandates in an upcoming executive order on competition. The order itself will urge the FTC to craft tighter rules to address the problem:

The Chinese government agreed to stay out of Hong Kong's (government) business until 2047 when it took possession of the region in 1997. It has refused to hold up its end of the bargain.Its steady encroachment into Hong Kong's affairs has been met with increasingly intense pro-democracy protests. Realizing this wasn't going to make its eventual takeover any easier, the Chinese government increased its pressure on the local government. When that wasn't working fast enough, it started replacing legislators with handpicked pro-China representatives.When all of that still wasn't enough to get the Hong Kong populace to bend the knee, it implemented a new national security law and imposed it on the region. Being anti-China meant being a threat to national security. Pro-democracy protesters were threatened with life sentences. Pro-democracy press outlets were hassled and their leaders arrested.Apparently, giving Hong Kong the appearance of a police state just isn't enough. If Hong Kong is going to become China 2.0 far ahead of schedule, it needs to become an actual police state.

It's not exactly a secret that we've been very anti-DRM here at Techdirt for some time. It's honestly perplexing how anyone can be otherwise. DRM has shown time after time to be of almost no hindrance whatsoever for those seeking to pirate video games, but has done an excellent job of hindering those who actually bought the game in playing what they've bought. Ubisoft, in particular, has had issues with this over the years, with DRM servers failing and preventing customers from playing games that can no longer ping the DRM server.And while those instances involved unforeseen downtime or migrations impacting customers' ability to play their games, this time it turns out that Ubisoft simply stopped supporting the DRM server for Might and Magic X-Legacy. And now basically everyone is screwed.

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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