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It’s just no fun being a giant company aspiring to monopolize repair to boost revenues. On both the state and federal level, a flood of new bills are targeting companies’ efforts to monopolize repair by implementing obnoxious DRM, making repair tools and manuals hard to find, bullying independent repair shops (like Apple does), or forcing […]

Nearly a year ago, we talked about a trademark battle between Caryn Mandabach Productions, the company that produces Netflix's Peaky Blinders hit show, and Sadler's Brewhouse, a combined distillery that applied for a "Peaky Blinders" trademark for several spirits brands. Important to keep in mind is that "Peaky Blinders" isn't some made up gang in a fictional story. That name was taken from very real history in England, as evidenced by the folks that own Sadler's being descendants from one of the gang's members. It's also important to remember that television shows and alcohol are not the same marketplace when it comes to trademark law. Despite that, there has been a years-long dispute raging between Mandabach and Sadler's.And now we have some indication as to why, since Bushmills has announced a partnership with Mandabach Productions to release its own "Peaky Blinders" themed whiskey.

In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth's mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside's lawyer has fairly strenuously denied Sheth having any involvement.Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag's identify from being shared. The judge -- somewhat oddly -- said that the fair use determination couldn't be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October...) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

Oh, NSO Group, is there anything you won't do? (And then clumsily deny later?). If I were the type to sigh about such things, I surely would. But that would indicate something between exasperation and surprise, which are emotions I don't actually feel when bringing you this latest revelation about the NSO's shady dealings.

Andy Parker has experienced something that no one should ever have to go through: having a child murdered. Even worse, his daughter, Alison, was murdered on live TV, while she was doing a live news broadcast, as an ex-colleague shot her and the news station's cameraman dead. It got a lot of news coverage, and you probably remember the story. Maybe you even watched the video (I avoided it on purpose, as I have no desire to see such a gruesome sight). Almost none of us can even fathom what that experience must be like, and I can completely understand how that has turned Parker into something of an activist. We wrote about him a year ago, when he appeared in a very weird and misleading 60 Minutes story attacking Section 230.While Parker considers himself an "anti-big tech, anti-Section 230" advocate, we noted that his story actually shows the benefits of Section 230, rather than the problems with it. Parker is (completely understandably!) upset that the video of his daughter's murder is available online. And he wants it gone. As we detailed in our response to the 60 Minutes story, Parker had succeeded in convincing various platforms to quickly remove that video whenever it's uploaded. Something they can do, in part, because of Section 230's protections that allow them to moderate freely, and to proactively moderate content without fear of crippling lawsuits and liability.The 60 Minutes episode was truly bizarre, because it explains Parker's tragic situation, and then notes that YouTube went above and beyond to stop the video from being shared on its platform, and then it cuts to Parker saying he "expected them to do the right thing" and then says that Google is "the personification of evil"... for... doing exactly what he asked?Parker is now running for Congress as well, and has been spouting a bunch of bizarre things about the internet and content moderation on Twitter. I'd link to some of them, but he blocked me (a feature, again, that is aided by Section 230's existence). But now the Washington Post has a strange article about how Parker... created an NFT of the video as part of his campaign to remove it from the internet.

There are things people expect the government to do. And then there are the things the government actually does. The government assumes many people are comfortable with things it does that are technically legal, but certainly not how the average government user expects the system to behave.Some of this can be seen in the Third Party Doctrine, which says people who knowingly share information with third parties also willingly share it with the government. But very few citizens are actually cool with this extended sharing, no matter what the Supreme Court-created doctrine says. This tension between people's actual expectations and the government's portrayal of the people's expectations is finally being addressed by the nation's top court. Recent rulings have shifted the balance back towards actual reasonable expectations of privacy, but there's still a whole lot of work to be done.So, when rape victims report sexual assaults to law enforcement, they certainly don't expect their DNA samples will be run through crime databases to see if these victims of crimes have committed any crimes. But that's exactly what the San Francisco PD has been doing, according to this report from Megan Cassidy of the San Francisco Chronicle.

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Earlier this week we took a look at Donald Trump and Devin Nunes' Truth Social's terms of service, noting that they -- despite claiming that Section 230 should be "repealed" -- had explicitly copied Section 230 into their terms of service. In the comments, one of our more reliably silly commenters, who inevitably insists that no website should ever moderate, and that "conservatives" are regularly removed for their political views on the major social networks (and refusing to provide any evidence to support his claims, because he cannot), insisted that Truth Social wouldn't ban people for political speech, only for "obscenity."So, about that. As Mashable has detailed, multiple people are describing how they've been banned from Truth Social within just the first few days -- and not for obscenity. The funniest one is someone -- not the person who runs the @DevinCow account on Twitter -- tried to sign up for a @DevinCow account on Truth Social. As you probably know, Devin Nunes, as a congressman, sued the satirical cow account for being mean to him (the case is still, technically, ongoing). You may recall that the headline of my article about Devin Nunes quitting Congress to run Truth Social announced that he was leaving Congress to spend more time banning satirical cows from Truth Social.And apparently that was accurate. Matt Ortega first tried to register the same @DevinCow on Truth Social, only to be told that the username was not even allowed (which suggests that Nunes or someone else there had already pre-banned the Cow). Ortega then tried other varieties of the name, getting through with @DevinNunesCow... briefly. Then it, too, was banned:

NBC (now Comcast NBC Universal) has enjoyed the rights to broadcast the US Olympics since 1998. In 2011, the company paid $4.4 billion for exclusive US broadcast rights to air the Olympics through 2020. In 2014, Comcast NBC Universal shelled out another $7.75 billion for the rights to broadcast the summer and winter Olympics in the US... until the year 2032.Despite years of experience Comcast/NBC still struggles to provide users what they actually want. For years the cable, broadband, and broadcast giant has been criticized for refusing to air events live, spoiling some events, implementing annoying cable paywall restrictions, implementing heavy handed and generally terrible advertising, often sensationalizing coverage, avoiding controversial subjects during broadcasts, and streaming efforts that range from clumsy to scattershot.Not too surprisingly, years of this continues to have a profound drag on viewer numbers, which are worse than ever:

Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.

Clearview AI -- the facial recognition tech company so sketchy other facial recognition tech companies don't want to be associated with it -- is about to get a whole lot sketchier. Its database, which supposedly contains 10 billion images scraped from the internet, continues to expand. And, despite being sued multiple times in the US and declared actually illegal abroad, the company has expansion plans that go far beyond the government agencies it once promised to limit its sales to.A Clearview pitch deck obtained by the Washington Post contains information about the company's future plans, all of which are extremely concerning. First, there's the suggestion nothing is slowing Clearview's automated collection of facial images from the web.

Peloton hasn't been having a great run lately. While business boomed during the pandemic, things have taken a sour turn of late on a bizarre host of fronts. In just the last month or two the company has seen an historic drop in company valuation, fired 20 percent of its workforce, shaken up its executive management team, been forced to pause treadmill and bike production due to plummeting demand, been the subject of several TV shows featuring people having heart attacks, and now has been caught up in a new scandal for trying to cover up a rust problem to avoid a recall.Some of the issues have been self-inflicted, while others are just the ebb and flow of the pandemic. Most users still generally love the product, and a lot of these issues are likely to fade away over time. But adding insult to injury, connectivity issues this week prevented Peloton bike and treadmill owners from being able to use their $2000-$5000 luxury exercise equipment for several hours Tuesday morning. The official Peloton Twitter account tried to downplay the scope of the issues:

Last summer, I believe we were among the first to highlight that the various antitrust bills proposed by mainly Democratic elected officials in DC included an incredibly dangerous trojan horse that would aid Republicans in their "playing the victim" desire to force websites to host their disinformation and propaganda. The key issue is that many of the bills included a bar on self-preferencing a large company's own services against competitors. The supporters of these bills claimed it was to prevent, say, an Apple from blocking a competing mapping service while promoting Apple Maps, or Google from blocking a competing shopping service, while pushing Google's local search results.But the language was so broad, and so poorly thought out, that it would create a massive headache for content moderation more broadly -- because the language could just as easily be used to say that, for example, Amazon couldn't kick Parler off it's service, or Google couldn't refuse to allow Gab's app in its app store. You would have thought that after raising this issue, the Democratic sponsors of these bills would fix the language. They have not. Bizarrely, they've continued to issue more bills in both the House and the Senate with similarly troubling language. Recently, TechFreedom called out this problematic language in two antitrust bills in the Senate that seem to have quite a lot of traction.Whatever you think of the underlying rationale for these bills, it seems weird that these bills, introduced by Democrats, would satisfy the Republicans' desire to force online propaganda mills onto their platforms.

It all started with Hertz being less than helpful when a man was falsely accused of murder. Michigan resident Herbert Alford was arrested and convicted for a murder he didn't commit. He maintained his innocence, claiming he was at the airport in Lansing, Michigan during the time the murder occurred. And he could have proven it, too, if he had just been able to produce the receipt showing he had been renting a car at Hertz twenty minutes away from the crime scene.It wasn't until Alford had spent five years in prison that Hertz got around to producing the receipt. Three of those years can be laid directly at Hertz's feet. The receipt was requested in 2015. Hertz handed it over in 2018. Alford sued.That's not the only lawsuit Hertz is facing. It apparently also has a bad habit of accusing paying customers of theft, something that has resulted in drivers being accosted by armed officers and/or arrested and charged.Nine months later, another lawsuit rolled in. A proposed class action suit -- covering more than 100 Hertz customers -- claimed the company acts carelessly and engages in supremely poor recordkeeping. The lawsuit, (then) representing 165 customers, contains details of several customers who have been pulled over, arrested, and/or jailed because Hertz's rental tracking system is buggier than its competitors'. Hertz takes pain to point out these incidents only represent a very small percentage of its renters. But that's essentially meaningless when this small error rate doesn't appear to occur at other car rental agencies.This lawsuit is forcing Hertz to disclose exactly what this error rate is and how many renters it affects. It's a much larger number than the 165 customers the lawsuit started with last November.

With the launch of Donald Trump's ridiculous Truth Social offering, we've already noted that he's so heavily relying on Section 230's protections to moderate that he's written Section 230 directly into his terms of service. However, at the same time, Trump is still fighting his monstrously stupid lawsuits against Twitter, Facebook, and YouTube for banning him in the wake of January 6th.Not surprisingly (after getting the cases transferred to California), the internet companies are pointing the courts to Section 230 as to why the cases should be dismissed. And, also not surprisingly (but somewhat hilariously), Trump is making galaxy brain stupid claims in response. That's the filing in the case against YouTube which somehow has eight different lawyers signed onto a brief so bad that all eight of those lawyers should be laughed out of court.The argument as to why Section 230 doesn't apply is broken down into three sections, each dumber than the others. First up, it claims that "Section 230 Does Not Immunize Unfair Discrimination," which claims (falsely) that YouTube is a "common carrier" (it is not, has never been, and does not resemble one in any manner). The argument is not even particularly well argued here. It's three ridiculous paragraphs, starting with Packingham (which is not relevant to a private company choosing to moderate), then claiming (without any support, since there is none) that YouTube is a common carrier, and then saying that YouTube's terms of service mean that it "must carry content, irrespective of any desire or external compulsion to discriminate against Plaintiff."Literally all of that is wrong. It took EIGHT lawyers to be this wrong.The second section claims -- incorrectly -- that Section 230 "does not apply to political speech." They do this by totally misrepresenting the "findings" part of Section 230 and then ignoring basically all the case law that says, of course Section 230 applies to political speech. As for the findings, while they do say that Congress wants "interactive computers services" to create "a true diversity of political discourse" as the authors of the bill themselves have explained, this has always been about allowing every individual website to moderate as they see fit. It was never designed so that every website must carry all speech, but rather by allowing websites to curate the community and content they want, there will be many different places for different kinds of speech.Again. Eight lawyers to be totally and completely wrong.Finally, they argue that "Section 230(c) Violates the First Amendment as Applied to This Matter." It does not. Indeed, should Trump win this lawsuit (he won't) that would violate the 1st Amendment in compelling speech on someone else's private property who does not wish to be associated with it. And this section goes off the rails completely:

It was only 2009 that AT&T heralded its cutting edge 3G network as it unveiled the launch of the iPhone (which subsequently crashed AT&T's cutting edge 3G network). Fast forward a little more than a decade and AT&T is preparing to shut that 3G network down, largely so it can repurpose the spectrum it utilizes for fifth-generation (5G) wireless deployments. While the number of actual wireless phone users still using this network is minimal, the network is still being heavily used as a connectivity option for some older medical devices and home alarm systems.As such, the home security industry is urging regulators to delay the shutdown to give them some more time to migrate home security users on to other networks:

I've been banging on a bit lately about the importance of video game preservation as a matter of art preservation. It's not entirely clear to me how much buy in there is out there in general on this concept, but it's a challenge in this specific industry because much of the control over what can be preserved or not sits in the hands of game publishers and platforms compared with other forms of art. Books have libraries, films have the academies and museums, and music is decently preserved all over the place. But for gaming, even organizations like the Video Game History Foundation have to rely on publishers and platforms to let them do their work, or risk art being lost entirely to the digital ether or lawsuits over copyright. We've talked in the past about how copyright law is far too often used in a way that results in a loss of our own cultural history, and digital-only video games are particularly vulnerable to that.We just discussed Nintendo's forthcoming shutdown of the 3DS and Wii U stores, and what that meant for digital games that Nintendo indicates it is not planning on selling anywhere else. Well, the Video Game History Foundation released a statement on that action and, well, hoo-boy...

Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.Here's how it started:

We've got another cross-post this week: Mike was recently a guest on the new Internet of Humans podcast by Jillian York and Konstantinos Komaitis, for a wide-ranging discussion about internet regulation issues today and where they might be headed. You can listen to the entire conversation on this week's episode.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years, throughout the entire monkey selfie lawsuit saga, we kept noting that the real reason a prestigious law firm like Irell & Manella filed such a patently bogus lawsuit was to position itself to be the go-to law firm to argue for AI-generated works deserving copyright. However, we've always argued that AI-generated works are (somewhat obviously) in the public domain, and get no copyright. Again, this goes back to the entire nature of copyright law -- which is to create a (limited time) incentive for creators, in order to get them to create a work that they might not have otherwise created. When you're talking about an AI, it doesn't need a monetary incentive (or a restrictive one). The AI just generates when it's told to generate.This idea shouldn't even be controversial. It goes way, way back. In 1966 the Copyright Office's annual report noted that it needed to determine if a computer-created work was authored by the computer and how copyright should work around such works:In 1985, prescient copyright law expert, Pam Samuelson, wrote a whole paper exploring the role of copyright in works created by artificial intelligence. In that paper, she noted that, while declaring such works to be in the public domain, it seemed like an unlikely result as "the legislature, the executive branch, and the courts seem to strongly favor maximalizing intellectual property rewards" and:

The man presiding over a law enforcement agency filled with gangs and cliques would prefer city officials stop referring to his employees as gang members.Los Angeles County Sheriff Alex Villanueva has stated that there are no gangs within the Sheriff's Department, a claim he is obviously unable to back up with facts, because the facts make it clear that the LASD has been (and apparently still is) home to multiple gangs composed of deputies. There's even a Wikipedia page dedicated to the gangs infesting the Sheriff's Department.If you distrust the info on the anyone-can-edit Wikipedia page, there's also this comprehensive database compiled by journalist Cerise Castle for Knock LA -- one that pulls info from public records and court documents to list suspected and verified members of LASD gangs.Sheriff Villanueva continues to claim there are no gangs within his department. He has also instituted a policy to address the problem he says doesn't exist, forbidding deputies from "joining any group that commits misconduct." You'd think this policy would forbid any deputy from being employed by the Los Angeles Sheriff's Department, but I guess that's not how Villanueva reads his edict.As for Villanueva's claim gangs and cliques don't exist within his department? Well, let's take a look at what his employees say:

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When Donald Trump first announced his plans to launch his own Twitter competitor, Truth Social, we noted that the terms of service on the site indicated that the company -- contrary to all the nonsense claims of being more "free speech" supportive than existing social media sites -- was likely going to be quite aggressive in banning users who said anything that Trump disliked. Last month, Devin Nunes, who quit Congress to become CEO of the fledgling site, made it clear that the site would be heavily, heavily moderated, including using Hive, a popular tool for social media companies that want to moderate.So with the early iOS version of the app "launching" this past weekend, most people were focused on the long list of things that went wrong with the launch, mainly security flaws and broken sign-ups. There's also been some talk about how the logo may be a copy... and the fact that Trump's own wife declared that she'll be using Parler for her social media efforts.But, for me, I went straight to checking out the terms of service for the site. They've been updated since the last time, but the basics remain crystal clear: despite all the silly yammering from Nunes and Trump about how they're the "free speech" supporting social network, Truth Social's terms are way more restrictive regarding content than just about any I've ever seen before.Still, the most incredible part is not only that Truth Social is embracing Section 230, but it has literally embedded parts of 230 into its terms of service. The terms require people who sign up to "represent and warrant" that their content doesn't do certain things. And the site warns that if you violate any of these terms it "may result in, among other things, termination or suspension of your rights to use the Service and removal or deletion of your Contributions." I don't know, but I recall a former President and a former cow farming Representative from California previously referring to that kind of termination as "censorship." But, one of the things that users must "represent and warrant" is the following:

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

This week, our first place winner on the insightful side is an anonymous comment about what happens when medical companies implode, leaving people who rely on their products in the lurch:

Five Years AgoThis week in 2017, Oracle filed its opening brief in its renewed attempt to overturn Google's fair use win on Java APIs. The UK rolled out a "piracy alert system" that was mostly but not entirely benign, while politicians there were looking to follow up on the Snooper's Charter with an even worse anti-whistleblowing law. In the US, things weren't looking good for net neutrality between the opinions of FCC commissioners and the shifty activities of telco. Meanwhile, prosecutors and anti-sex-trafficking advocates were speaking out about the government's treatment of Backpage, while a new report on encryption showed that its proliferation was not much of a problem for law enforcement.Ten Years AgoThis week in 2012, there were mass protests against ACTA all across Europe. The European Parliament President criticized the agreement, and the EU official who resigned over it was detailing its many problems — but the EU Commission was trying to claim the widespread concerns were all based on 'myths', and lobby groups like the IFPI were claiming that the protests were anti-democratic. Meanwhile, US Senators were ramping up the fearmongering to push for a cybersecurity bill that they insisted was nothing like SOPA — but which also didn't seem necessary.Fifteen Years AgoThis week in 2007, we examined Universal Music's ridiculous 'settlement' with small video sharing site Bolt, while Hollywood was expressing its ongoing displeasure with Google (as were some very confused Belgian newspapers). Broadcasters were making yet another attempt at anti-satellite radio legislation, sample troll Bridgeport Music won an unfortunate victory, and the RIAA was trying to get ISPs to help it hound customers into settling its lawsuits.

Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.This supposed form of evidence was called into question by the Obama Administration:

Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

Welp. This isn't going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Over the last few years, it's been depressing to see politicians from both major political parties attacking free speech. As we noted last month, Washington state governor Jay Inslee last month started pushing a bill that would criminalize political speech. He kept insisting that it was okay under the 1st Amendment because he got a heavily biased constitutional lawyer, Larry Tribe, to basically shrug and say "maybe it could be constitutional?" But the bill was clearly problematic -- and would lead to nonstop nonsense lawsuits against political candidates.Thankfully, cooler heads have prevailed in the Washington Senate and the bill has died. The bill's main sponsor is still insisting that it would survive 1st Amendment scrutiny, but also recognized that it just didn't have enough political support:

Spotify’s decision to hitch its star to podcaster and font-of-COVID-misinformation Joe Rogan has sparked a wave of pushback from musicians, some of whom--among them Neil Young, India Arie, and Joni Mitchell--have pulled their music from Spotify in protest. Spotify, for its part, has stood firmly by Rogan.That Spotify would stand by a show that consistently undermines vaccines and blithely spreads misinformation is disappointing--but, financially, it’s perfectly predictable.The short version:The law and economics of music streaming lead to one inevitable result: Spotify pays money when it streams music. It makes money when it streams podcasts. Therefore, Spotify has an incentive to keep people using Spotify -- just not for music.The legal regime around music licensing makes breaking even -- let alone turning a profit -- nearly impossible. Because the industry is notoriously secretive about its financials (a problem in and of itself), raw data is hard to come by. But the fact remains that investors (and industry observers) agree that music streaming as a loss-leader -- something that incurs a net loss for the service doing it, in the hopes of potentially looping consumers into the parent company’s product ecosystem. Apple Music and Amazon Music, the second and third largest streaming services by market share, both operate at a loss. Spotify, which has been in the US market since 2011, turned its first profit in 2021. It is still unclear whether it will manage to repeat the achievement.In short, experience indicates that a streaming service that plays only music will consistently lose money. And while this is a complex issue with many moving parts, one of the biggest is the law -- the market it creates, and the behavior it incentivizes.But First, How Does Music Copyright Work?Each track involves not one, but two copyrighted works; the recorded performance (the “sound recording”), and the underlying composition (the “musical work”). Legally, these are two distinct things. This is partly a historical artifact; songwriting hit its stride in the very early 20th century, before mass distribution of recorded music was even a glimmer in anyone’s eye. Compositions got copyright protection in 1906 (and were thus given the now-confusingly-vague designation of “musical work”). Over the first half of the century, publishers and performing rights organizations sprang up to promote, distribute, and license songwriters’ work. It wasn’t until mid-century that the recording industry began to flourish on its own, and sound recordings didn’t even gain copyright protection until the late 1970s.Because of this history, the two industries – songwriting and recording – operate under wildly different licensing structures. Copyright is, at its core, a government-granted right to exclude; when one player starts to accumulate a high volume of those rights, the risk of abusive market behavior rises. The composition side of the equation messed around and found out early. By the 1940s, the government had intervened and set up a complex system of antitrust enforcement, rate-setting, and mandatory licensing regimes. The result was a market that, for all its faults, remains relatively stable and predictable for licensees (and, as a side benefit, provides some transparency on how songwriters are paid).The recording industry, by contrast, gained its copyright (and thus its monopoly power) in the mid 1970s. By then, antitrust law was in the middle of a Chicago school backlash that considerably narrowed its scope and purpose and regulators had lost the taste for the kind of vigorous enforcement that marked the early part of the 20th century. While regulators in the 1940s were willing to go after the songwriting industry’s bad behavior (cartels, extractive pricing, strong arm tactics, etc) their counterparts in the late 1970s were less enthusiastic. And so, unlike their composition-side brothers, labels exist in an unconstrained free market.Why It’s So Hard For Streaming Services to Make MoneyAs mentioned above, we have very little hard and fast data about how much labels are charging and what kinds of side deals they are striking to extract value from these services. But given what we do know about the industry -- and what the U.S. government has outright assumed is going on when doing things like setting royalty rates -- we have a pretty good idea.Because labels have no meaningful guardrails on their licensing practices, they are free to maximize their own profit however they see fit. When it comes to streaming, their ideal situation is to extract as much value as possible without forcing the service completely under. This means that licenses are priced with the assumption that the streaming service will have to take on some (ideally sustainable) amount of debt to cover their licensing obligations. The alternatives to this aren’t a whole lot better, either; things like equity stakes, sweetheart deals, and algorithmic preferencing or promotion are commonplace.The result of all this is that it is structurally impossible for a streaming service to turn a profit using standard music deals alone. Labels are rational economic actors. Profit is value that is not being captured by labels; labels will rationally set prices to ensure that none of that value goes un-captured. Labels have the power to shut a service down simply by walking away from the table.Why Spotify Can’t Quit Joe RoganIt means that, despite being a music streaming company, music is (and will always be) a revenue loss for Spotify. To have any hope of turning a profit, it needs a low-cost, high-revenue offering. Enter podcasts – specifically Rogan’s podcast, which commands a minimum ad buy of $1M, along with a commitment to buy other ads on Spotify-hosted podcasts.So, when forced to choose between retaining portions of its legacy music catalog and keeping one of the only offerings that actually makes the service money, Spotify made the obvious (if morally objectionable) choice. It chose Joe Rogan.And barring a major overhaul of music licensing law, starting with sound recordings, this will keep happening. We’ll either end up in a world where all mainstream streaming services will be backed by deep-pocketed tech giants (such as Apple, Amazon, and Google), or where music services are stuck relying on non-music content to stay afloat--even when that content is harmful.Meredith Rose is Senior Policy Counsel at Public Knowledge

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Protests against police violence erupted around the country following the killing of an unarmed black man, George Floyd, by Minneapolis (MN) police officer Derek Chauvin. Chauvin ended Floyd's life by placing his knee on his neck for nearly nine minutes… and for more than three minutes after another officer informed Chauvin he could no longer detect Floyd's pulse.The protests continued for months. Some were in solidarity. Others were provoked by recent acts of police violence. Protests in Phoenix, Arizona were nothing out of the ordinary. But the law enforcement response certainly was. It wasn't that the cops did anything that was unusual, per se. They did the normal stuff: they responded violently to protests against police violence, attacking protesters, stripping them of their belongings, and justifying these actions with overblown claims about fearing for their safety.But it was prosecutors in Maricopa County, Arizona who took things to the next level. Apparently working in conjunction with a number of law enforcement entities, lead prosecutor April Sponsel, an attorney with the Maricopa County Attorney's Office, lied to a grand jury and abused local laws to add gang enhancements to the criminal charges brought against 15 arrested protesters. Sponsel, working with the Phoenix PD, claimed the use of black umbrellas (which protesters used to deflect tear gas canisters and "non-lethal" ammunition) and the acronym "ACAB" ["All Cops Are Bastards"] made the arrested protesters gang members.This was serious shit. People arrested for rioting, failure to disperse, resisting arrest, or disorderly conduct were being saddled with (completely bullshit) gang charges that had the potential to add another 10 years to their sentences if convicted.Prosecutor April Sponsel appeared to have been integral to the addition of gang crime sentence enhancements. The wife of a state trooper, Sponsel was the one who presented allegedly false information to a grand jury for the purpose of portraying the arrested protesters as a violent gang, rather than people coincidentally united by their desire to protest police violence. Shortly after the news broke about these bullshit prosecutions, Sponsel was placed on administrative leave while an outside investigation -- requested by Maricopa County prosecutor Allister Adel -- commenced.Sponsel has been in the public eye for months. And she doesn't appear to like it. She may have enjoyed the backchannel support of local law enforcement as she found ways to stick it to people who were upset with the law enforcement status quo, but she apparently feels litigious about being called out over her gang enhancement bullshit.

Every year or so, the FCC unveils a new plan to combat robocalls it claims will finally tackle the annoying menace. Granted, year after year, the problem either gets worse or stays relatively the same. We've already noted that this is generally due to few things: one, a steady erosion by the courts (and lobbyists) of what the FCC can or can't actually do when it comes to various annoyances like automated spam texts or live robocalls.The other issue is that regulators and policymakers tend to frame the problem as one exclusive to scammers -- when a wide variety of telecoms, marketing, and debt collection companies use all the same dodgy tactics to annoy consumers they often know can't pay anyway. If you hadn't noticed, trying to craft rules that leave huge carve outs for "legitimate" companies while still hamstringing outright scammers generally doesn't work very well. You've also got to craft rules and systems that allow robocalls people want (medical and dental appointment reminders, for example).Even when only talking about scam robocalls, there's still room for meaningful improvement. The steady adoption of SHAKEN/STIR authentication technology has helped crack down on phone number spoofing. Targeting "gateway providers," who act as a proxy here in the U.S. for robocalls originating overseas, could also help.Meanwhile the FTC says it's also going to start filing lawsuits against voice over IP (VOIP) companies that fail to cooperate with investigations into illegal robocalls:

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.It's shameful behavior for a US senator, even if not surprising.

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he's not advocating breaking up Twitter because he doesn't like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he's been silenced and canceled. It might all look very stupid on its face, but it isn't. It's actually quite diabolical.Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that's not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it's not because he's stupid. It's because he's an assbag.Now that we've gotten that out of the way, let's talk about the Josh Hawley mug he's selling on his website.See? He's an asshole. In case you can't see the image or don't know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley's major policy positions.

Senator Richard Blumenthal is apparently a bottomless well of terrible internet regulation ideas. His latest is yet another "for the children" bill that will put children in serious jeopardy. This time he's teamed up with the even worse Senator Marsha Blackburn to introduce the Kids Online Safety Act, which as the name suggests is full of a bunch of overbearing, dangerous nonsense that will not protect children at all, but will make them significantly less safe while giving clueless, authoritarian parents much more power to spy on their kids.About the only "good" part of the bill is that it doesn't attack Section 230. But the rest of it is nonsense, and based on a terrible misunderstanding of how, well, anything works. The bill doesn't just take its name from the UK's Online Safety Bill, but it also takes a similar "duty of care" concept, which is a nonsense way of saying "if you make a mistake, and let undefined 'bad stuff' through, you'll be in trouble." Here's the duty of care is self-contradictory nonsense:

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I've already talked about the potential 1st Amendment problems with the EARN IT Act and the potential 4th Amendment problems with it as well. But a recent post by Riana Pfefferkorn at Stanford raises an even bigger issue in all of this: what actual problem is EARN IT trying to solve?This sounds like a simple question with a potentially simple answer, but the reality, once you start to dig in, suggests that either (1) the backers of EARN IT don't actually know, or (2) if they do know, they know what they actually want is unconstitutional.Supporters of EARN IT will say, simply, the problem they're trying to solve is the prevalence of child sexual abuse material (CSAM) online. And, that is a real problem (unlike some other moral panics, CSAM is a legitimate, large, and extraordinarily serious problem). But... CSAM is already very, very illegal. So, if you dig in a little further, supporters of EARN IT will say that the problem they're really trying to solve is that... internet companies don't take CSAM seriously enough. But, the law (18 USC 2258A already has pretty strict requirements for websites to report any CSAM they find to NCMEC (the National Center for Missing & Exploited Children) -- and they do. NCMEC reported that it received almost 21.4 million reports of CSAM from websites. Ironically, many supporters of EARN IT point to these numbers as proof that the websites aren't doing enough, while also saying it proves they don't have any incentive to report -- which makes no sense at all.So... is the problem that those 21.4 million reports didn't result in the DOJ prosecuting enough abusers? If so... isn't the problem somewhere between NCMEC and the DOJ? Because the DOJ can already prosecute for CSAM and Section 230 doesn't get in the way of that (it does not immunize against federal criminal law). And, as Riana noted in her article, this very same Senate Committee just recently heard about how the FBI actually knew about an actual serial child sex abuser named Larry Nasser, and turned a blind eye.And, if NCMEC is the problem (namely in that it can't process the reports fast enough), then this bill doesn't help at all there either, because the bill doesn't give NCMEC any more funding. And, if the senators are correct that this bill would increase the reports to NCMEC (though it's not clear why that would work), wouldn't that just make it even more difficult for NCMEC to sort through the reports and alert law enforcement?So... is the problem that companies aren't reporting enough CSAM? If you read the sponsors' myths and facts document, they make this claim -- but, again, the law (with really serious penalties) already requires them to report any CSAM. Taking away Section 230 protections won't change that. Reading between the lines of the "myths and facts" document, they seem to really be saying that the problem is that not every internet service proactively scans every bit of content, but as we've discussed that can't be the problem, because if that is the problem, EARN IT has a massive 4th Amendment problem that will enable actual child sex abusers to suppress evidence!Basically, if you look step by step through the potential problems that supporters of the bill claim it tries to solve, you immediately realize it doesn't actually solve any of them. And, for nearly all of the potential problems, it seems like there's a much more efficient and effective solution which EARN IT does not do. Riana's post has a handy dandy table walking down each of these paths, but I wanted to make it even clearer, and felt that a table isn't the best way to walk through this. So here is her chart, rewritten (all credit to her brilliant work):If online services don't report CSAM in violation of 2258A, and the real problem is large-scale, widespread, pervasive noncompliance by numerous providers that knowingly host CSAM without removing or reporting it (NOT just occasional isolated incidents), then there's a very long list of potential remedies:

Techirt has long discussed how in the modern era, the things you buy aren't actually the things you buy. And the things you own aren't actually the things you own. Things you thought you owned can be downgraded, bricked, or killed off entirely without much notice. That game console with backward compatibility? It no longer has backward compatibility. That smart home hub or smart speaker at the heart of your living room setup you've enjoyed for years? It not long works. The movies and books you thought were permanently in your personal catalog? Sorry, they aren't anymore. That perfectly good two-year-old phone? It no longer gets security updates, putting you and your data at risk.This is all bad enough when talking about smart home hubs or smart refrigerators, but it's quite another thing entirely when it comes to medical implants. IEEE Spectrum has the Cory Doctorow-esque cautionary tale of Second Sight Medical Products whose Argus optical implants were commonly installed in patients in the early aughts to help them see. Accurately heralded as immeasurably innovative at the time, these devices may soon no longer work or be supported because the company that made them is going bankrupt:

Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Summary:YouTube creators have frequently complained about the opaque and frustrating nature of the platform’s appeals process for videos that are restricted or removed for violating its Community Guidelines. Beyond simply removing content, these takedowns can be severely damaging to creators, as they can result in “strikes” against a channel. Strikes incur temporary restrictions on the user’s ability to upload content and use other site features, and enough strikes can ultimately lead to permanent channel suspension.Creators can appeal these strikes, but many complain that the response to appeals is inconsistent, and that rejections are deemed “final” without providing insight into the decision-making process or any further recourse. One such incident in 2020 involving high-profile creators drew widespread attention online and resulted in a rare apology and reversal of course by YouTube.On August 24, 2020, YouTube creator MoistCr1TiKaL (aka Charlie White, who also uses the handle penguinz0), who at the time had nearly six-million subscribers, posted a video in which he reacted to a viral 2014 clip of a supposed “road rage” incident involving people dressed as popular animated characters. The authenticity of the original video is unverified and many viewers suspect it was staged for comedic purposes, as the supposed “violence” it portrays appears to be fake, and the target of the “attack” appears uninjured. Soon after posting his reaction video, White received a strike for “graphic content with intent to shock” and the video was removed. On September 1, White revealed on Twitter that he had appealed the strike, but the appeal was rejected.White then posted a video expressing his anger at the situation, and pointed out that another high-profile YouTube creator, Markiplier (aka Mark Fischbach), had posted his own reaction to the same viral video nearly four years earlier but had not received a strike. Fischbach agreed with White and asked YouTube to address the inconsistency. To the surprise of both creators, YouTube responded by issuing a strike to Fischbach’s video as well.The incident resulted in widespread backlash online, and the proliferation of the #AnswerUsYouTube hashtag on Twitter, with fans of both creators demanding a reversal of the strikes and/or more clarity on how the platform makes these enforcement decisions.Company considerations:

The problem with Space X's Starlink, as we've noted a few times, is several fold. One, the initial deployment of roughly 12,000 low orbit satellites is only going to be able to service around 500,000 to 800,000 total subscribers. In a country with 20-40 million who lack broadband, and another 83 million who live under a broadband monopoly. So despite a lot of rhetoric to the contrary, it's barely going to put a dent in the problem it claims to solve. At $100 per month (plus $500 hardware charge) it's also not all that affordable, the other major issue for rural Americans without broadband.The other major problem for Starlink is the fact the low orbit constellations cause significant light pollution that harms scientific research, something Musk insisted absolutely wouldn't happen and scientists say can't be mitigated. For Starlink to have a meaningful impact at scale (and make any money in the process) it needs both the struggling Raptor engine delays to be resolved, it needs supply chain issues to be resolved, and it needs to launch roughly 30,000 second generation Starlink satellites.But NASA is now warning the FCC that those newer satellites will cause even more problems for scientific research, space flight, and the Hubble telescope:

No one cuts cops more slack than other cops. You really have to be an impressive kind of awful to lose the support of your Thin Blue Line brothers and sisters.But the police department in Brookside, Alabama has managed to do exactly that. For years, no one had heard of or cared that the town of Brookside even existed… and that possibly includes a percentage of the town's 1,253 inhabitants.That all changed when a new sheriff rolled into town, so to speak. It wasn't a sheriff (because the county already had one) but a new police chief, Mike Jones. Where town leaders may have seen nothing more than a vacancy in its two-employee department, Jones saw opportunity. He soon turned Brookside into Nottingham, Alabama, patrolling nearby highways to hit drivers passing by the small town with multiple fines and fees. Officers also engaged in unnecessary towing of vehicles over minor traffic violations, and apparently made up laws to justify stops, seizures, and traffic citations.Chief Jones was hired in 2018. From 2018 to 2020, fines and fees from traffic citations rose 600%. This windfall went directly to expanding the revenue stream. Chief Jones hired seven more officers, obtained two drug dogs, one MRAP, and the disdain of nearby law enforcement officials. He also incurred the wrath of an untold number of Alabama residents, who were soon making trips to Brookside to attend once-a-month traffic court sessions -- sessions that resulted in Brookside officers being forced to route traffic and oversee parking for this monthly influx of out-of-towners.The county sheriff had already received several complaints about the traffic enforcement extortion being performed by Brookside officers, who often operated in unmarked vehicles while wearing uniforms that gave no indication which law enforcement agency employed them. A nearby district attorney called the town a "black hole" where drivers are subjected to rights violations, harassment, and bogus citations.National exposure caused this real life Boss Hogg to resign his position as police chief. And the Brookside PD is experiencing something most law enforcement agencies never do: criticism from their supposed brothers in arms.

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for "medical misinformation," as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.And now she's back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would "hold platforms accountable" for the amplification of "harmful content." You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.In some ways, it's an improvement on the health misinformation bill, in that she's finally realized that for any bill to pass 1st Amendment scrutiny it needs to be "content neutral." But... it's not. It claims that it's taking a "nudge" approach -- popularized from Cass Sunstein and Richard Thaler's 2008 book of that name. But the whole point of "nudges" in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar's bill does).The bill starts out fine... ordering a study on "content-agnostic interventions" to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would "reduce the harms of algorithmic amplification and social media addiction." And, sure, more research from independent and trusted parties sounds good -- and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we've seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to "fix" content moderation.But, unfortunately, the bill goes beyond just the studies. Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic. And... that is the unconstitutional part. You can call it "content-agnostic" all you want, but as soon as you're telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that's a 1st Amendment issue. A big one.The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine "how covered platforms should be grouped together" (?!?), then "determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms..." and then (play the ominous music) "require each covered platform to implement and measure the impact of such content-agnostic interventions..."And here's where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what "interventions" you put in place, you know that you're immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can't ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving -- but it's a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).Also, the setup here seems totally disconnected to the realities of running a website. "Covered platforms" will be given 60 days to submit a plan to the Commission as to how they'll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed "unfair or deceptive acts or practices" enabling the FTC to go after them with potential fines.The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we've seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don't seem to understand how social media, content moderation, or the 1st Amendment work.And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it's a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies "censoring" content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that's what this bill she's sponsoring would do.I'm all for doing more credible research, so that's great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.

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The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes: