Way back when Epic released its Epic Store PC game storefront, the release of this new competitor to Steam focused on two major selling points. The first was timed exclusives that it shelled out tons of money for, allowing it to sell games the public couldn't get anywhere else for a certain period of time. This pissed off lots of people, as the public generally doesn't like exclusives. That said, Epic did mention that it would end its exclusivity practices if the rest of the gaming storefront world, especially Steam, mirrored the Epic Store's second key selling point, which was a far more favorable split offered to game developers than the "industry standard" 70/30 split that sees places like Steam getting nearly a third of game revenue just for hosting the game on its platform. Instead, Epic's store has a 88/12 split, meaning the platform is willing to take less than half of the revenue Steam extracts from gamemakers.In other words, Epic positioned its exclusivity program as merely a method to get the other storefronts to take less money away from game developers, which softened the blow with the public and surely made it a great many fans in the gaming industry.Well, Steam hasn't caved yet. But Microsoft did just announce that it is moving to match the splits offered by the Epic Store, marking some movement in the industry and perhaps an indication of things to come.
On Monday, Basecamp CEO Jason Fried came out with a blog post announcing not only a cutback in employee benefits, but that it would be banning social and political conversations on the company's platforms as well:
The upload filters required by the EU's Copyright Directive are not yet in operation -- even though France seems keen to bring them in as soon as possible. So we have been spared for the moment the inevitable harm to freedom of speech and loss of online users' rights that this ill-conceived and dishonest legislation will cause. But a minor case in the Czech Republic provides a foretaste of what is to come. It concerns the Czech file-sharing and hosting site Ulož.to. TorrentFreak has the details:
The United States Postal Service is still in the spying business. The USPS has been scanning pretty much every piece of mail that runs through its system, creating a massive database of metadata that serves whatever purpose the USPS imagines it does. "National security" or whatever the fuck.When not helping the DEA find cash and the occasional drug shipment, the USPS is also apparently keeping tabs on social media users. This includes social media services with smaller, but perhaps more concerning, user bases. The name of the game is still "national security," but it's unclear why the Postal Service -- which has a hard enough time divvying up its limited resources -- is engaged in this sort of surveillance.A two-page report [PDF] from the USPS's "iCOP" (Internet Covert Operations Program) [again, why is this actually a thing?] -- first reported by Yahoo News -- details the internet sleuthery of US Postal Service Inspectors.
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Joe Biden has never been a particularly big free speech supporter. For years, as a Senator, he consistently sided with the entertainment industry in their never-ending quest to have the government help attack free speech on the internet via aggressive and oppressive copyright laws. Throughout his campaign he railed against protected speech online that he disliked. And last night, during his first full address to Congress, he trotted out the very dangerous "fire in a crowded theater" trope:He did it in a very dumb way too. In talking about his push for gun control, he pushed back against the idea that things like background checks and certain limitations on firearms would violate the 2nd Amendment... using the trope about the 1st Amendment:
We've talked about the problem with bloated, expensive cable TV channel bundles for a long time. You might recall the push for "a la carte" TV channels (being able to buy cable TV channels individually) was even a pet project of the late John McCain, though his legislative efforts on that front never really went anywhere. And while the rise of streaming competition helped mitigate the problem somewhat, the tactic of forcing US cable TV consumers to buy massive bundles filled with channels they don't watch remains a very real annoyance.The latest case in point: many folks are realizing that the attempt to drive advertisers away from white supremacy apologists like Tucker Carlson aren't really working, in part thanks to the traditional cable TV bundle. In short, because Fox News is included in most cable TV lineups, millions of Americans are throwing money at Fox News despite never watching the channel:
For sure, the most frustrating examples of dumb trademark disputes are when one party bullies into silence another party for doing something that actually helps the bully. If you need an example of this, you can look to the time Olive Garden tried to take down AllOfGarden.com, a site with a satirical take on the Olive Garden menu. That example is particularly instructive for two reasons. First, AllOfGarden was essentially a tongue-in-cheek love letter to the restaurant chain run by someone who was very much a fan of said chain. Second, Olive Garden eventually apologized and rescinded its threat, due in part to the public backlash and the fact that it must certainly have realized that the site, if anything, helped drive some measure of interest in the restaurant itself.We will have to see if supermarket chain Publix ends up handling this the same way, because it has apparently bullied someone running social media accounts alerting fans to the availability of a particular sandwich into silence.
Summary: Apple controls what apps get onto iPhone and iPads via its full control over the iOS App Store. Every app (and its updates) need to be reviewed by Apple staff before it’s allowed in the store -- and Apple puts in place its own rules for what is and what is not allowed.One of those rules is that Apple takes a 30% cut of any sales. That fee has become somewhat controversial, especially among service providers who don’t rely on the App Store for discovery, but whose customers likely come on their own -- including Spotify and Epic Games. Spotify, in particular, has urged users to subscribe directly, to avoid having to pay the additional amount per month to cover Apple’s fees. In response, Apple forbade Spotify from even mentioning that it’s cheaper to subscribe outside of the App Store, which is now a central piece of an antitrust fight that is ongoing in the EU.Perhaps because of all of this, Apple has had to make decisions about whether or not to allow apps in the App Store that seek to avoid paying Apple’s cut of the fees. In August of 2020, Matt Mullenweg, the CEO of Automattic, and the founder/lead developer of the WordPress content management system, announced that the iOS app for WordPress had been frozen by Apple. The given reason was that Apple believed that WordPress was trying to avoid the fees for in-app purchases.This was the cause of much confusion, as many people noted that the app did not actually sell anything. While WordPress.com does offer paid hosting plans (and domain reselling), that was not a part of the WordPress app. However, as Mullenweg’s tweet showed, Apple was noting that because somewhere else in WordPress.com’s business, it sold things, that meant that WordPress had to pay it a 30% cut of those sales (even though they were outside of the app itself) in order to keep the app in the App Store.Decisions to be made by Apple:
Senator Marco Rubio keeps trying to act Trump-like, but he just can't pull it off. He actually knows what he's saying is bullshit and unlike some other politicians, it's pretty obvious when Rubio is play-acting populist nonsense, rather than having any real conviction behind it. His latest is a NY Post opinion piece in which he takes on the new favorite punching bag of Republicans-who-have-no-principles-left: what is stupidly being referred to as "woke" corporations.. This is, of course, somewhat hilarious for anyone who followed decades of Republican politics in which over and over the politicians insisted that companies could do no wrong. But now that some companies are pushing back on Republican-inspired nonsense, suddenly they have to be labeled as "woke" and punished.I won't go through the entire op-ed, but I will just pull out a quote towards the end that sums up how ridiculous and authoritarian this kind of nonsense truly is. In it, Rubio basically says that political views from companies he disagrees with are on the same level as pollution.
The Pasco County (FL) Sheriff's Office decided to bring some of its predictive policing nonsense indoors. It also started looking for smaller targets. The program used to harass residents over things like uncut lawns and missing mailbox numbers was extended to schoolchildren, who were subjected to the same sort of spreadsheet bullshit. Low grades? Miss a few school days? Victim of domestic violence?According to the Pasco County Sheriff "juvenile intelligence analysts," these were all risk factors that could signify future criminal behavior. The Sheriff claimed it wasn't trying to pre-crime children, but its own documentation said "analysts" should use the so-called "predictors" to "identify at-risk youth who are destined to a life of crime."Not only is the program arguably morally wrong, it's also generally wrong. Predictive policing rarely works as intended since it relies on skewed data. Those inputs produce more skewed data, sending officers into the same areas they already believe criminal activity will occur and aims them at the same people they've already assumed are criminals. It's basically confirmation_bias.xls. But this program targets kids and uses data it's not clear the Sheriff's Office has any legal right to access.That means the program may also be legally wrong. As in "illegal." Analysis of the program and the data-sharing agreements with schools by student privacy advocates resulted in the determination that this access to student data without parental consent violated FERPA (Family Education Rights and Privacy Act) -- a federal student privacy law passed in 1974.This conclusion prompted Congressional reps to step in and request a federal investigation into Pasco County's pee-wee league pre-crime program. Four months after that request was made by Representative Robert C. Scott, the US Department of Education is moving forward with its review of the program.
The Pasco County (FL) Sheriff's Office decided to bring some of its predictive policing nonsense indoors. It also started looking for smaller targets. The program used to harass residents over things like uncut lawns and missing mailbox numbers was extended to schoolchildren, who were subjected to the same sort of spreadsheet bullshit. Low grades? Miss a few school days? Victim of domestic violence?According to the Pasco County Sheriff "juvenile intelligence analysts," these were all risk factors that could signify future criminal behavior. The Sheriff claimed it wasn't trying to pre-crime children, but its own documentation said "analysts" should use the so-called "predictors" to "identify at-risk youth who are destined to a life of crime."Not only is the program arguably morally wrong, it's also generally wrong. Predictive policing rarely works as intended since it relies on skewed data. Those inputs produce more skewed data, sending officers into the same areas they already believe criminal activity will occur and aims them at the same people they've already assumed are criminals. It's basically confirmation_bias.xls. But this program targets kids and uses data it's not clear the Sheriff's Office has any legal right to access.That means the program may also be legally wrong. As in "illegal." Analysis of the program and the data-sharing agreements with schools by student privacy advocates resulted in the determination that this access to student data without parental consent violated FERPA (Family Education Rights and Privacy Act) -- a federal student privacy law passed in 1974.This conclusion prompted Congressional reps to step in and request a federal investigation into Pasco County's pee-wee league pre-crime program. Four months after that request was made by Representative Robert C. Scott, the US Department of Education is moving forward with its review of the program.
The government of Malaysia has never been shy about censoring uppity citizens for doing things like, say, exposing massive government corruption. But it also has some royalty to shield from the content created by disgruntled citizens. That's why it recently welcomed a "fake news" law into the fold, giving the government (and the royalty it ultimately serves) yet another censorial weapon to deploy.A local artist is the latest under the jackboot, accused of making Queen Tunku Azizah Aminah Maimunah feel bad by compiling a [checks report] Spotify playlist.
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Back in February, we wrote about how the Indian government was threatening to jail Twitter employees if the company wouldn't block various tweets that were critical of the government's handling of farmer protests in that country. While Twitter pushed back, eventually it did block a bunch of content, though it appears it did so reluctantly, and only because it had no other choice.And now we're seeing it happen again. The COVID pandemic situation in India is a completely out of control, and rather than fix its completely bungled response to the pandemic, the Indian government has been demanding that Twitter block tweets criticizing the government's response.As first spotted by Medianama, Twitter agreed to block access to 52 tweets for users in India. People elsewhere can still see them, so we can see what kinds of tweets the Modi government doesn't want people to see. Tweets like this:
An ambassador who last worked as a US ambassador more than two decades ago recently sued Apple and Google for… well, let's go to the tape. Apparently, it's somehow these two companies' fault that Telegram users make anti-Semitic comments and otherwise make "Ambassador Marc Ginsberg" (as the plaintiff refers to himself in his complaints) feel unsafe.Ginsberg owns two phones -- one of each variety. That's why he's suing both Apple and Google. There's no indication Ginsberg has ever downloaded or used Telegram. Nor is there any indication he's even seen firsthand any of the content he's suing about. But in both lawsuits, he claims the mere existence of Telegram in app stores has personally harmed him and somehow devalued both of the phones he uses.These lawsuits make no sense. And that's why Ginsberg has retained the representation of Keith Altman, last seen chucking lawsuit after lawsuit into federal courts claiming Facebook, Twitter, and YouTube are directly responsible for real-life terrorist attacks. So far, the firms last associated with Altman and his particularly stupid brand of litigation have yet to secure a win at any level of the federal court system.Google was last to be sued but the first to respond. And it raises the expected defenses, including the "the plaintiff has chosen the wrong defendant." (h/t John Roddy)Google's motion to dismiss [PDF] starts with a few facts that make it pretty much unnecessary for anyone -- including the presiding judge -- to read any further. Here's the opener:
Normally, when we see what we consider a dumb trademark dispute over a dumb trademark resulting in two parties calling a truce and stopping the dumbness, we cheer such resolutions on. Far too many dumb trademark disputes find their way into the courtroom or become prolonged USPTO disputes, after all. So, when a resolution is amicably reached, that tends to be a good thing.This is not one of those times. You will recall that since the middle of 2019, we have been discussing a crazy trademark application made by The Ohio State University for the word "THE". Yes, the school is trying to trademark what may well be the most commonly used word in the English language simply because of its own pompous insistence that its school be recognized with that word at the start of its name. It's dumb enough, in fact, that former OSU footballer and current NCAA Football analyst Kirk Herbstreit panned the school's actions in an interview. Despite the public outcry over all of this, and despite the school initially being denied the mark by the USPTO on largely technical grounds, OSU has continued to press on trying to get its trademark.Unfortunately, as it did so, it discovered that another player had entered this tournament of stupid. Luxury clothier Marc Jacobs had apparently submitted its own trademark application for "THE", because idiot-lightning apparently does strike twice. And, while OSU had planned an opposition to the application, the two sides have now announced a truce.
As we noted recently, the wireless industry has been developing a new "trust score" to determine who is or isn't worthy of being able to send text message spam. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of. The problem: a growing roster of groups are worried about the transparency of the process, noting that the Milan-based company (Kaleyra) running this new "Campaign Registry" hasn't been forthcoming or consistent when it comes to details of the system, launching in June.Text messaging campaigns remain hugely effective, with 90 percent of text messages are read within 3 minutes. But a chorus of groups from Sierra Club to Planned Parenthood are growing increasingly worried that the overall system, dubbed 10DLC, could result in many of them losing their ability to engage in outreach:
The way a lot of people talk about content moderation is disappointingly uncreative — most of all in the way they boil every decision down to the binary decision of "leave it up or take it down". But this framework is extremely limiting and doesn't reflect the way content moderation professionals work, and one person working to paint a better picture is Santa Clara Law Professor Eric Goldman. He joins us on this week episode to discuss the many different ways to approach difficult content moderation questions.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.
Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander's old seat, and he's kicking off his tenure with a bang... of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today's GOP apparently believes that they can throw the Constitution out the window... as long as they (1) claim they're owning the libs, and (2) pretend that they're tearing up the Constitution to save the Constitution.In this case, Hagerty has put out a piece in the Wall Street Journal -- which will publish any anti-Section 230 screed no matter how factually challenged -- to talk about a new bill he's preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he's doing it by claiming it is about "protecting liberty." The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be "Clueless Senator Wants To Take Away Internet Freedom."Let's dig in.
You can be angry about things said about you in court filings. But you really can't sue about them. Reporting based on court documents is almost (!) always protected by the First Amendment. After all, those making the statements in court are swearing what they're saying is true. Those reporting on sworn statements have no reason to believe otherwise, even if it's eventually revealed the assertions were false.That's the tough lesson being learned by Jason Miller, a former Trump advisor who sued Gizmodo for reporting on court filings stating he had spiked a smoothie with an abortion pill to head off an inconvenient pregnancy. Miller has always claimed this accusation is false. Splinter -- a now-defunct website owned by Gizmodo -- reported on allegations made by another Trump staffer, A.J. Delgado, back in 2018.Since then, Miller has been trying to sue Gizmodo for defamation. But there's no defamation here, as the Eleventh Circuit Court of Appeals affirms in its decision [PDF]. The lawsuit was filed in New York, which activates local civil rights laws which grant a "fair and true report" privilege to journalists who report on court filings. That proves instrumental in this dismissal, even though the First Amendment would have covered it as well.The allegations Miller sued over are incredibly disturbing.
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You may have heard recently that James O'Keefe, the guy behind "Project Veritas" -- a propaganda outlet whose brand of highly edited, surreptitiously recorded videos are often followed by actual media having to come in and debunk the misleading bits -- had his Twitter account shut down recently. He immediately threatened to sue Twitter, and last week he actually did so.The crux of the lawsuit is that because a reporter claimed that Twitter told him O'Keefe's account was banned for "operating fake accounts," that's defamation. The lawsuit notes that back in February, Twitter also banned the Project Veritas account. In that case, it was because one of Project Veritas' videos allegedly revealed "private information" which violated its rules. In that case, the private information (according to the lawsuit) was that the video showed the house number of a Facebook executive who they were trying to interview. In the lawsuit, O'Keefe's lawyers try to make a big deal of the fact that real media organizations sometimes show where people live as well, leaving out the fact that this does not matter one tiny bit. Twitter sets the rules on its own platform, and when it's making decisions on the rules, they often involve context (and that context may include Project Veritas' long history).But the key part of the lawsuit is the claim that because a Twitter spokesperson told the media that O'Keefe violated its policy against "fake accounts," and O'Keefe claims he didn't operate fake accounts, this is defamatory. The arguments in the case are going to make some of you laugh:
In late March, the UK's National Society for the Prevention of Cruelty to Children (NSPCC) started injecting its anti-encryption views into the major papers via some press releases and statements claiming encryption was the "biggest threat to children online." It also claimed its stance was supported by a soon-to-be-released report, which had gathered opinions and analysis from a number of stakeholders.Its report debuted a few weeks later. Put together with the assistance of PA Consulting, the supposedly "balanced" report came to the conclusion the NSPCC arrived at earlier: end-to-end encryption is bad. That this wasn't greeted with gasps of shock by readers and receptive journalists shows just how much the UK government's disdain for encryption has gone mainstream. The NSPCC wasn't saying anything new about encryption. It was simply saying what the UK government has been saying for years: it doesn't care for encryption because it believes encryption aids criminals far more often than it protects innocent people, including the children the NSPCC claims to be so worried about.The NSPCC presents its report as a research paper, but the list of stakeholders it actually chose to engage with guaranteed the report would result in the conclusions the child safety agency desired to see in print. As Barry Collins points out in his vetting of the report, the supposedly wide-ranging group of contributors was actually just a bunch of entities -- many with ties to the UK government -- which were already opposed to the deployment of end-to-end encryption by messaging platforms.Here's what the NSPCC said it was doing to compile this report:
While we've seen plenty of instances of confused attempts at trademark bullying backfire on a company, this post will deal with one of the worst I've seen. Most of you will likely be familiar with the company Ocean Spray, best known as a purveyor of all kinds of cranberry-infused fruit drinks. You will likely be less familiar with Wedge Water, LLC, a company that makes fruit juice infused water products. The company also does business as Wave Soda, promoting its soda-alternative drinks.Well, according to a lawsuit filed by Ocean Spray seeking declaratory relief that it did not infringe any trademarks with its own "wave" branding, Wedge Water / Wave Soda sent a cease and desist notice to Ocean Spray demanding that it cease using its own federally registered trademark. More on that in a moment, but here is what the complaint notes about the C&D.
In The Princess Bride, the character of Vizzini famously says: "Ha ha, you fool! You fell victim to one of the classic blunders! The most famous of which is 'never get involved in a land war in Asia,' but only slightly less well-known is this: 'Never go in against a Sicilian when DEATH is on the line.'" I don't know if it's surpassed either of those yet, but quickly moving up the list would be "Never try to patent troll Cloudflare." Apparently, the patent troll Sable Networks has just made exactly that blunder.About a decade ago, the online retailer Newegg pioneered the strategy of attacking back on patent trolls. The entire patent trolling business model is based on the fact that it is almost always cheaper to settle a patent trolling case than to fight it and win. A full patent trial will cost over a million dollars easily, and sometimes multiples of that. But many patent trolls file a ton of lawsuits, hoping to settle each for well less than what it takes to fight in court. It's a true extortionate scam. Newegg, however, took the long view, and recognized that if it refused to give in and refused to settle, eventually the trolls would realize that it simply wasn't ever worth suing Newegg. Newegg even made "Never Settle" t-shirts to advertise its strategy to trolls. And, eventually, it worked. Though it did involve a few costly patent trials, patent trolls mostly learned to steer clear of Newegg.A few years ago, Cloudflare got its first patent troll lawsuit, and decided to take Newegg's never settle strategy and kick it up a notch or three. Instead of just saying it wouldn't settle, Cloudflare set out to completely destroy the patent troll who sued it (an operation called Blackbird Technologies). In response to the lawsuit, Cloudflare launched something called Project Jengo, in which it sought to crowdsource prior art not just for the patent used against Cloudflare, but every single patent in Blackbird's portfolio -- and to hand out cash awards to those who found such prior art. It also went after the lawyers at Blackbird for violating legal ethics rules.Cloudflare's campaign against Blackbird was a huge success. The company easily won in court and Blackbird became a shell of its former self. Prior art was discovered on some of its patents, the firm filed way fewer troll lawsuits, and it appeared that its staff had dwindled.Patent troll Sable Networks perhaps should have researched all of this before suing Cloudflare over a sketchy patent that Cloudflare doesn't infringe on. However, Sable Networks chose poorly.
Even though Florida didn't see many of the anti-police violence protests that spread across the nation in the wake of the George Floyd killing, its legislature and its governor have apparently decided protesters have it too easy. Governor Ron DeSantis feels the best approach to handling people fed up with police brutality and their lack of accountability is to throw more protesters (and rioters) in jail more often, and for longer.Here are just some of the expansions signed into law by DeSantis:
The Federalist Society this week released an interesting and well-produced video all about the Section 230 debate. Whatever you might think about the Federalist Society, the video is worth watching. The video does not take a position on 230 but basically presents it as if there are two equally competing visions of 230 -- one in which it's good and one in which it's a problem. And if you just watch the video, you might think that this is because there are just disagreements about how 230 works and the impact it has on speech online. But that's only because one side of the debate is completely making shit up and the other is being accurate.In this case, the person making up shit about 230 is... Senator Ted Cruz. Cruz has been lying about Section 230 for years. Indeed, I think we can trace most of the blatant falsehoods about 230 that seem to come from Republicans to Ted Cruz. It seems like 3 years ago, Cruz decided that it would be a fun culture war thing to "attack big tech" and lying about 230 seemed like the easiest way to do so. Other politicians (most notably Josh Hawley) have since followed him down that path, but it's Cruz who seems to be patient zero of the GOP's "making shit up about 230." Of course, what's perhaps most ironic is that everything that Cruz has been falsely saying about 230 conflicts directly with the other stuff he made up about net neutrality back when that fight was on.Back in 2014, when the FCC finally put in place reasonable net neutrality rules, Cruz flipped out and insisted that simple rules against throttling or blocking access to websites was the government taking over the internet. Now, with 230, he insists (falsely) that 230 had some built in neutrality requirement, and he's mad that it's no longer there. He's wrong on... all of this.Let's dig in:
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To be clear, former T-Mobile CEO John Legere did some amazing things with T-Mobile. After regulators blocked AT&T from acquiring T-Mobile in 2011 (which wound up being a very good thing), he took the $3 billion break up fee and turned an also-ran into a major thorn in the side of AT&T and Verizon. Legere accomplished this by (gasp) generally treating consumers well, eliminating annoyances like long-term contracts, sneaky fees, and many other telecom industry mainstays. He also did it by embracing an entertaining, wise ass persona in an industry not known for having a sense of humor.But then, T-Mobile owners Deutsche Telekom decided it would be a good idea to throw all of this away by pursuing a $26 billion merger with Sprint. That suddenly forced Legere into a position where he had to behave exactly like the companies he'd just spent a decade making fun of. That included lying a lot about the benefits of the deal as the company tried to sell the Trump administration on the competition and job-eroding megadeal (that wound up not being particularly difficult, since the industry-allied Trump FCC and DOJ didn't care about hard data).Technically, Legere only worked for three months in 2020, but nabbed a $137 million exit package according to new data:
A pretty hilarious turn of events has led to Cellebrite's phone hacking tech being hacked by Signal's Moxie Marlinspike, revealing the tech law enforcement uses to pull data from seized phones is host to major security flaws.According to Marlinspike, the Cellebrite came into his possession thanks to some careless package handling.
This week, our first place winner on the insightful side is That One Guy with a response to Josh Hawley's politically-motivated call to break up companies:
Five Years AgoEU regulators were busy this week in 2016, trying to force YouTube to be more like Spotify and going after Google for antitrust regarding Android, which prompted Microsoft to drop all its own antitrust complaints about Google and vice versa, while both companies claimed the timing was just a coincidence. The FISA court was still uncovering surveillance abuses by the feds while the EFF was suing the DOJ for refusing to release FISA court documents, and another court said that national security letters were constitutional under the USA Freedom Act. Meanwhile, the Supreme Court said it wouldn't hear the Authors Guild's appeal over the Google Books ruling, prompting the Guild to whine.Ten Years AgoRighthaven was having a bad time this week in 2011, with a judge slamming their legal tactics and unsealing the document that revealed "sham" copyright assignments to the company — while, in another state, Righthaven was continuing its self-destruction by directing their petulant tone at the judge. It wasn't over, either, as yet another court told Righthaven its demand for domain names was silly. And another similar company, Digiprotect, was also getting dinged by a judge. On the other hand, one of the RIAA's lawyers in the Limewire case was recommended as a federal judge.Fifteen Years AgoThis week in 2006, people were beginning to notice how much free product placement Apple was getting in movies and television shows, high-price domain names were back and we wondered where the skepticism was, and AT&T was pretending to love competition. We looked at the story of how NTP kept prior art on its wireless email patent quiet, and we were irritated at the fact that the Patent Office needed to be told to look online for prior art on patent applications. More and more states were pursuing driving-while-yakking regulations without paying attention to the broader data about distracted driving in general. And the Supreme Court declined to hear Jerry Falwell's typosquatting case.
Late last year, while the COVID-19 pandemic was gearing up to hit its peak here in the States, we wrote about one college student and security researcher taking on Proctorio, a software platform designed to keep remote students from cheating on exams. Erik Johnson of Miami University made a name for himself on Twitter not only for giving voice to a ton of criticism Proctorio's software has faced over its privacy implications and inability to operate correctly for students of varying ethnicities, but also for digging into Proctorio's available source code, visible to anyone that downloads the software. But because he posted that code on PasteBin to demonstrate his critique of Proctorio, the company cried copyright infringement and got Twitter to take his tweets down initially as a result, before they were later restored.But if Proctorio thought that would be the end of the story, it was wrong. The EFF has now gotten involved and has filed a lawsuit against Proctorio in an effort to end any online harassment of Johnson.
Summary: Google has long been responsive to court orders demanding the removal of content, if they're justified. Google has fought back against dubious orders originating from "right to be forgotten" demands from outside the US, and has met no small amount of DMCA abuse head on. But, generally speaking, Google will do what's asked if there's a legal basis for the asking.But not everyone approaching Google acts in good faith. First, there are any number of bad actors hoping to game the system to juice their Google search rankings.And, beyond that, there are any number of shady "reputation management" firms willing to defraud courts to obtain orders demanding Google remove content that reflects poorly on their clients.For a couple of years, these bad actors managed to make some search engine optimization (SEO) inroads. They were able to fraudulently obtain court orders demanding the removal of content. The worst of these companies didn't even bother to approach courts. They forged court orders and sent these to Google to get negative listings removed from search results.This new system opportunistically preyed on two things: Google's apparent inability to police its billions of search results and the court system's inability to vet every defamation claim thoroughly.But the system -- not the one operated by the US government or Google -- prevailed. Those targeted by bogus takedown demands fought back, digging into court dockets and the people behind the bogus requests. Armed with this information, private parties approached the courts and Google and asked for content that had been removed illicitly be reinstated.Decisions to be made by Google:
Last year, the EU's top court threw out the Privacy Shield framework for transferring personal data between the EU and US. The court decided that the NSA's surveillance practices meant that the personal data of EU citizens was not protected to the degree required by the GDPR when it was sent to the US. This was the second time that such an agreement had been struck down: before, there was Safe Harbor, which failed for similar reasons. The absence of a simple procedure for sending EU personal data to the US is bad news for companies that need to do this on a regular basis. No wonder, then, that the US and EU are trying to come up with a new legal framework to allow it, as this CNBC story notes:
A decade ago we wrote a post about what we called Schrodinger's Download, which was that the big companies in the music space would refer to digital downloads as a sale or a license in varying ways depending on which benefited them the most. This was most evident in lawsuits between artists and labels, especially with contracts signed in the pre-digital era, where the royalties for "licensing" were much higher than the royalties for "sales." In those cases, the labels tried to claim that MP3 downloads were "sales" in order to pay lower licensing fees -- but, on the flip side, when there were cases about reselling those files, suddenly the labels would insist that wasn't allowed, since it wasn't actually a sale, but a license.And, of course, over the years, we've seen this play out in many ways -- especially with our never ending series of posts on how you don't own what you've bought, as more and more companies try to use technology and DRM to retain control over things you've "purchased." Last year, we wrote about someone suing Amazon for claiming that she had "purchased" movie downloads, but the fine print showing that she was merely "renting" them. The argument was that this was false advertising. That case is still going, but what we hadn't realized was that someone else had filed a very similar case against Apple, arguing the same thing. And, yes, it's the same lawyers on both cases...And even though the Apple case was filed three months after the Amazon case, it's actually seen more progress. This week the judge denied Apple's motion to dismiss (first spotted on Courthouse News), saying that there's enough of a case to move forward. Apple tried to argue that the harm here is merely speculative. It hasn't actually removed the plaintiff's downloads. But the court says that Apple's wrong about that:
When 17-year-old Darnella Frazier started recording video of Minneapolis policeman Derek Chauvin murdering George Floyd, she initiated a series of historic events that led to Chauvin’s conviction.But for all the discussion of technology following her actions – how cellphones enable video recording of police abuse and how social media encourages instantaneous mass distribution – the key factor in George Floyd’s name becoming globally famous may not be Frazier’s cellphone. It may not even be social media.It was the culture and tradition of U.S. civil liberties and media freedom that played an essential role in protecting Frazier’s ability to record and retain possession of the video, and the capability of commercial corporations to publish it.Had the same events transpired in China, Saudi Arabia, Russia, Singapore or elsewhere, nobody might ever have learned of Floyd’s fate.The constitutional protections enjoyed by U.S. citizens empower and encourage everyday Americans to discover, record, expose and distribute evidence of governmental malfeasance. This freedom to publicize crimes committed by state actors creates the possibility of improving policing and making the administration of justice more sensitive, effective and responsive.But it also threatens to undermine state authority, which is why so many U.S. politicians remain wary of such freedoms.To understand how the United States developed this unconstrained news culture, you need to return to Minneapolis, to a moment one century ago, when a newspaper exposed police corruption and provided a key turning point in protecting the American public’s right to expose governmental crimes.Press abuse vs. press limitsJay Near always knew there were bad cops in Minnesota.The publisher wrote about them in The Saturday Press, his Minneapolis newspaper. But Near called the cops “gangsters,” and he railed against what he claimed was a Jewish cabal controlling Minneapolis. Jay Near was a racist crank who published baseless conspiracy theories.Today, Near is remembered – if at all – for his legendary Supreme Court victory in the 1931 U.S. Supreme Court decision known as Near v. Minnesota.In 1927, Near and his business partner were prevented from publishing because The Saturday Press was deemed in violation of Minnesota’s “Public Nuisance Law.” That law outlawed publishing or circulating “obscene, lewd, and lascivious” or “malicious, scandalous and defamatory” materials.Near sued to lift the prohibition, and his case made it to the Supreme Court, where his publication rights were ultimately vindicated. Near v. Minnesota opened up the modern version of press freedom we recognize today. Calling the Minnesota Public Nuisance Law “the essence of censorship,” a five-justice majority struck it down.Essentially, the high court ruled that the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible. The Court had no illusions – the judges were well aware The Saturday Press published inflammatory misinformation. But in assessing the costs of censorship versus the benefits of liberty, the majority sided with the racist crank against the state of Minnesota.Making the connectionThe expansive media freedoms originating in the First Amendment, and later enshrined in Supreme Court decisions like Near v. Minnesota, would continue into the internet age with Section 230 of the Communications Decency Act. That’s the law that allows people to post freely on internet sites while protecting the internet companies from legal jeopardy caused by those materials.So, for example, defamatory accusations, negligent misrepresentation, intentional nuisance, dangerous misinformation and even content intended to incite emotional distress can be posted without Facebook, Twitter, Instagram or other companies being sued or held civilly liable.For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier – and all citizens who follow in her footsteps – to stand up to the government in ways previously unimaginable. A portion of the front page of The Saturday Press, Oct. 15, 1927, published by Jay Near that figures prominently in U.S. press freedom law. Minnesota Historical SocietyBut some stand ready to abandon these long-established legal and cultural protections.Had Minnesota’s Public Nuisance Law survived Near’s challenge, it very well might have prevented publication of Frazier’s video. Those images could easily have been deemed “obscene,” or a “malicious” or “scandalous” incitement to violence.But U.S. states can’t outlaw media organizations as “public nuisances.” Yet tensions over media freedom now exist that have the potential to lead to limits on the public’s ability to record and distribute police crimes.Joe Biden and Donald Trump don’t agree on much, but one idea they have both publicly endorsed is eliminating Section 230 of the Communications Decency Act of 1996.Critics who want to get rid of Section 230 regularly blame it for the plethora of “fake news,” misinformation, and hate speech that infects our web and social media. Because Twitter, Facebook, TikTok and others can’t be held liable for users’ content, the companies have felt little pressure, until recently, to moderate the blizzard of material they publish every second.The cost of limiting the pressBut media freedom is always a double-edged sword. Without Section 230 protection, social media companies would likely behave cautiously to minimize even the hint of legal jeopardy. Frazier’s video, in such a world, might be deemed too risky to distribute.The immunity provided by Section 230 encourages YouTube, Facebook, Twitter and others, to stimulate users to post pretty much any news, information or video their users deem newsworthy or interesting.The repeal of Section 230 could result in a system in which inflammatory or provocative news or images that might outrage or incite people could be deemed too socially destructive or disturbing of the peace by internet companies. And this could include images and video such as the murder of George Floyd.The media freedom secured by Jay Near when he sought to expose police corruption in Minneapolis eventually assured the conviction of a criminal Minneapolis policeman.The idea that U.S. citizens can report, publish, print and disseminate information that might be terribly damaging to authority is a radical one. Even within the United States, this freedom is often considered too expansive. In Oklahoma, for example, a new bill criminalizing the filming of police officers recently passed both houses of the state legislature, and elsewhere the rights of citizens and journalists to record police behavior occurring in public are regularly violated.The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people’s rights promises to foster an active, aware and engaged citizenry – and that violating those rights by repressing or censoring information is deeply anti-American.Michael J. Socolow, Associate Professor, Communication and Journalism, University of Maine. This article is republished from The Conversation under a Creative Commons license. Read the original article.
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Ah, this one takes me back to the early days of Techdirt, when the biggest nonsense we were writing about was giant corporate bullies threatening (or in some cases suing!) over so called "Sucks Sites" (that's an article from almost 20 years ago!). The issue was that people who were upset with a particular company would register the domain of CompanySucks.com to (usually) put up a protest site. The company (and its lawyers) would then threaten to sue the individual for trademark infringement. There were some mixed rulings over those sites, but in general most have decided that sucks sites are not trademark infringement, and are protected under a variety of theories -- including a lack of any possible confusion and because they're nominative fair use.You'd have hoped that, by now, big company lawyers would recognize all of this. Apparently not Facebook's. Now, to be fair, as we recently discussed, for companies like Facebook, often they carefully police domains that make use of similar URLs in order to cut off sketchy phishing and scam sites. But it's one thing to go after such scammers... and it's another to go after someone who is obviously engaging in criticism.Enter: DontUseInstagram.com, created by Paul Kruczynski.The site now is designed to pretty much do what it says on the tin: give you reasons why you shouldn't use Instagram. Whether or not you agree with that messaging, it's clearly not infringing on Facebook/Instagram's trademarks. Someone should probably tell Instagram's lawyers. Because they sent a threat letter. In fact, they sent this threat letter before he'd even launched anything at the site, basically trying to intimidate him out of the site before he'd even done anything with it.
You might recall how the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high paying jobs to the state. Initially, the state promised Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. The amount of political hype the deal generated was utterly legendary, helping market Trump as a savvy dealmaker who'd be restoring technological greatness to the American Midwest.Years later, and the deal continues to be exposed as little more than a taxpayer-funded bullshit parade.After several years of reports making it very clear Foxconn never intended to live up to its promises (and a lot of half-truths and tap dancing by Foxconn), it finally acknowledged this week that the project was being dramatically scaled back:
We tend to talk about many of the nuanced and intricate problems with our current copyright culture, but the 10,000 foot view of the problem is essentially that copyright tends to make culture disappear. It can do this in lots of ways, but one of the least recognized of them is simply that with a culture of copyright maximilism, many content producers simply don't release the content they want to release it out of fear of the reprisal that has been seen in other cases.That's something of the case when it comes to 8-Bit Theater releasing a book featuring the entirety of the comics that were released, just without the pictures. Instead, it's just a "script" release. Why? Well, because those pictures are based on old Final Fantasy assets.
On January 9, 2020, facial recognition tech finally got around to doing exactly the thing critics had been warning was inevitable: it got the wrong person arrested.Robert Williams was arrested by Detroit police officers in the driveway of his home. He was accused of shoplifting watches from a store on October 2, 2018. The store (Shinola) had given Detroit investigators a copy of its surveillance tape, which apparently was of little interest to the Detroit PD until it had some facial recognition software to run it through.This was the dark, grainy image the Detroit PD felt was capable of returning a quality match:That picture is included in Williams' lawsuit [PDF] against the Detroit Police Department. Even in the best case scenario, this picture should not have been uploaded to run a search against. It's low quality, poorly-lit, and barely shows any distinguishing facial features.What makes it worse is that all facial recognition AI -- across the board -- performs more poorly when attempting to identify minorities. That's the conclusion reached by an NIST study of 189 different algorithms. It's not just some software. It's all of it.The Detroit PD chose to run with that photo. Then it decided the search results it had were close enough to probable cause to effect an arrest, even though the software used stated clearly search results should not be used this way. The search was performed by the Michigan State Police from the grainy image submitted by the Detroit PD. A report was returned but investigators were cautioned against trying to turn this into probable cause:
Podcasting has been a rare recent example of a new offering built on open protocols and standards (mainly RSS and MP3), that wasn't entirely co-opted by one giant corporate entity (even if some have tried). However, there have been some worrying signs of where the podcasting market is moving. For a few years now, we've been warning that the world would lose a lot if podcasts move from open standards and protocols to more proprietary solutions -- and yet Spotify, for one, has been moving heavily in that direction over the past few years.And, as Chris Messina pointed out recently, it appears that both Spotify and Apple are looking to move past RSS in how they push podcasts -- though he's unsure if it means that podcasts are dying -- or about to go through a renaissance.
One of the most disgraceful aspects of the EU Copyright Directive saga was the shameless way its supporters swore that upload filters would not be required -- despite the evident fact that there was no other way to implement the new law's requirements. And indeed, once the legislation was passed, France lost no time in pushing for upload filters. Worse, its own implementation ignored what few protections there were for users' fundamental rights. Fortunately, back in 2019, the Polish government made a formal request for the EU's top court, the Court of Justice of the European Union (CJEU), to throw out upload filters. That is still grinding its way through the EU's legal system, but its mere existence could play an important role as EU member states grapple with the impossible task of passing national laws to implement the EU Copyright Directive.To help them do that, the European Commission said it would release guidance on how to reconcile the contradictory requirements of upload filters and user rights. As a post by Communia accompanying an open letter to the Commission (pdf) explains, the first draft made it clear that national implementations of Article 17 -- upload filters -- must contain built-in protection that limits the automated blocking of uploads to situations where material is "manifestly" infringing. Since that promising start, there has been no sign of the final guidance. Instead, as Communia notes, there has been lots of lobbying against user rights:
McDonald's shake/ice cream machines are notoriously flaky. The most common response to requests for ice cream are sullen statements that the machine is down. It's so much a part of popular culture, an enterprising individual crafted a bot that lets people know which machines are up and which machines are going to be a waste of their time.To be sure, the shake/ice cream device used in almost every McDonalds is a complicated piece of machinery. Not only does it need to provide two different kinds of ice cream-related products from the same machine, but it must do it while operated by employees whose fast food careers can be measured in days, if not hours.But there's got to be a better way. And there probably is. But the company that makes the machines -- Taylor Restaurant Equipment -- doesn't want there to be a better way. It wants it to be Taylor's way... or no way at all.A captured market is always a great thing... for product makers. As long as you don't care about end users -- whether they're people seeking ice cream or people wondering why they can't use their scanner because they're out of cyan ink -- you can corner a market and let the endless revenue streams wash over you.A lot of companies have discovered this one simple trick: the best captive audience is one you hold hostage. That's how Taylor runs its ice cream machine business. It has hooked up with major players in the fast food industry and has limited franchisees' ability to handle any issues with their equipment on their own.When the shake machine is down, no one onsite can fix it. That goes beyond planned obsolescence to planned incapacity. Wired has a fascinating article that touches on how Taylor has muscled everyone else out of the market by making its machines solely beholden to Taylor techs. (Please go read it. It is worth every minute of your time.) This means every franchisee must sign a lengthy service agreement if they expect to provide this product to customers on a far-from-regular basis.Some enterprising hackers found out how to bypass the built-in problems Taylor inserts into every machine it sells. There's a code that allows access to the inner workings of the machine -- one that can also help translate its cryptic error messages. If franchisees had this information, they could do their own troubleshooting and repairs, rather than paying Taylor techs exorbitant amounts to, I don't know, press the reset button to allow the resumption of service.
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A few weeks back, news broke that some hackers were offering up personal information on over 500 million Facebook accounts (there had been some earlier reports about this data availability as well). It was even highlighted that some of the "personal information" apparently included Mark Zuckerberg's phone number (though it's unclear if that data was confirmed to be accurate or not).After there was more reporting on this data being available, some people noticed that Facebook had not alerted people about it. Various data breach laws require notification to effected users of a data breach, and so Facebook's decision raised some eyebrows. Facebook's explanation for not notifying users is that the company did not consider this to be a breach, but rather was done via scraping of information that people put on their own profiles:
We've covered for a while how consumer location data is consistently abused by telecom providers, app makers, stalkers, debt collectors, people pretending to be law enforcement, and pretty much any idiot with a nickel and a dream.Of course that also extends to government agencies like the IRS, CBP, and ICE, which have increasingly been buying access to your daily location habits so they can skirt around pesky warrants. The government still needs a warrant if it targets individuals, but nothing stops the government from hoovering up vast swaths of movement data en masse. Until now.A new bill backed by Senators Ron Wyden and Rand Paul, and Reps. Jerry Nadler and Zoe Lofgren, attempts to put this loophole to bed permanently. Bluntly dubbed the Fourth Amendment Is Not For Sale Act (see: summary or full text), the law would ban law enforcement agencies from buying data from controversial facial recognition firm Clearview AI, as well as force agencies to obtain a warrant before sourcing location data from brokers. In a statement, Wyden said the bill would close loopholes in both the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that allows governments to buy consumer location data without a warrant:
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