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Throughout the COVID pandemic, it's been truly shameful to watch how patent maximalists have tried to insist that we just need more patents to deal with COVID -- even though the incredible breakthroughs that brought such quick development of vaccines were not due to patents, but rather the free and open flow of information from a bunch of researchers and scientists who didn't care about whether or not information was locked up for profit, but did care about saving millions of lives.And now that we've got vaccines, we're dealing with significant problems in rolling them out around the world -- and patents are often in the way, holding that rollout back. And we actually have a way of dealing with that: what's known as a TRIPS waiver. TRIPS is the Agreement on Trade-Related Aspects of Intellectual Property Rights, which set up a variety of standards among member nations and the WTO regarding intellectual property. I have many problems with TRIPS (and the WTO), but TRIPS does include a process to grant waivers on intellectual property rights. This was in response to (very legitimate!) concerns by less well off nations that rich nations would use the patent system to block access to important life saving medicines.So, to ease such concerns, the TRIPS agreement includes a process by which the WTO can grant a compulsory licensing regime that will allow others to make patented drugs, and thus increase availability. A key point of this so-called waiver is that it allows for better allocations of certain drugs during medical emergencies. Given that, issuing such a waiver right now seems like a no-brainer. But... it has not been.India and South Africa put forth a a fairly straightforward waiver request for dealing with COVID-19. The key part of the request is that intellectual property requirements under TRIPS solely in relation to the "prevention, containment or treatment of COVID-19" should be waived during the course of the pandemic. It seems pretty straightforward. Even reliable patent maximalist sites like IP Watchdog are now publishing articles saying that the TRIPS waiver "is a necessary first step towards facilitating increased, rapid production of vaccines" and noting that it won't undermine the value of innovation in any way.We've already noted that Big Pharma is lobbying against it -- which is to be expected. However, what is perhaps less expected is the fact that Hollywood is vehemently lobbying against it as well. Why? Well, they claim that because the waiver is not limited to just patents, it will be used to wipe away copyright as well.This is... misleading at best. It is true that the waiver would cover copyrights, but only in an extremely limited fashion. As the part I quoted above notes, it only applies to intellectual property protections that are blocking the prevention, containment, and treatment of COVID-19. And, that can include a very limited set of copyrights. For example, there still remain shortages of ventilators in many parts of the world, and early on in the pandemic, people were working on 3D printing replacement parts to help deal with this extreme shortage. However, with some companies issuing threats over these 3D printed parts, there are legitimate concerns that copyright could be used to shut down such operations. Another area where a copyright waiver is likely to help is in allowing researchers easier access to important scientific journals and research that may help them develop more and better solutions.As if to make Hollywood calm down, South Africa and India included an explicit statement in the waiver request to say that the waiver cannot be used for entertainment products: "The waiver in paragraph 1 shall not apply to the protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement." That's literally the 2nd paragraph in a four paragraph waiver request. Already, it's kind of insulting that officials crafting this waiver request in an attempt to save lives had to waste time making sure that Hollywood wouldn't get angry at them.And even then it didn't work.

For decades now, cable TV consumers have been subjected to idiotic cable TV "retransmission feuds" that black out content consumers pay for as broadcasters and cable operators bicker over rates. And while streaming TV was supposed to remedy many of the dumber aspects of the traditional cable TV model, that's not really happening. The names and gatekeepers are simply shifting.Case in point: last year, bickering between AT&T and Roku over ad data sharing and contract details prevented AT&T's HBO Max from appearing on Roku devices. Later on last year, Sinclair-owned CBS stations were pulled from Hulu completely because the two sides couldn't put on their big boy pants and agree to a new contract without taking it out on paying subscribers.This week, it's Roku and Google (YouTube TV) in a standoff that resulted in the YouTube TV app being pulled from the Roku channel store. YouTube TV (not to be confused with vanilla YouTube) is Google's live TV streaming alternative to traditional cable. Users who already have it installed can still use it, but those who just bought the service and want to install it can't do so as of today. Fortunately this isn't a full ban either, since there's still a workaround that involves casting content from your phone, tablet, or PC to the Roku in a way that's a little more cumbersome but doesn't require the YouTubeTV app.Why the hassle in the first place? Roku, in a statement earlier this week, claimed Google was abusing its "monopoly position" (which really doesn't make sense when talking about live streaming TV, where they're a relatively niche player) to do all sorts of dastardly things:

This week, our first place winner on the insightful side is CSMcDonald, who raised a specific issue with Marco Rubio's comparison of speech he doesn't like to pollution:

Five Years AgoThis week in 2016, the DOJ dropped one of its big cases over iPhone encryption after the defendant suddenly remembered his passcode, while documents revealed that the FBI hid surveillance techniques from federal prosecutors in case they one day became defense lawyers. The FBI was also planning to ignore any court orders telling it to reveal its Tor browser exploit, while another court was joining the crowd saying one of the agency's hacking tools constituted illegal searches. And that wasn't all for the FBI: we also learned that the $1.3-million price tag for unlocking Syed Farook's iPhone just got them the phone unlocked, not the details of the exploit. Meanwhile, Congress was pressing James Clapper to properly admit how many Americans are spied on by the NSA, and the House voted unanimously to require a warrant for email searches — although some rule changes approved by the Supreme Court were moving in the opposite direction.Ten years AgoThis week in 2011, everyone was trying to get a look at the supposedly-finished ACTA text, but negotiators were remaining secretive about it — although Homeland Security was complaining to the USTR that it was a threat to national security, one of its former officials was calling the text "a sweetheart deal for IP owners", and a CRS report (also withheld by the USTR) confirmed that the language was quite questionable. And it was confirmed that, as some suspected, the US was the lone holdout country refusing to release the full text. Meanwhile, Righthaven was smacked down by another judge (while continuing to make crazy demands in other cases), but we noted that even though copyright trolls were failing left and right in court, their shakedowns were still working.Fifteen Years AgoThis week in 2006, some questions were raised about whether music labels were honest to the DOJ regarding collusion on song download prices, while we also got a closer look at how inconvenient movie studio's new download offerings were, and the RIAA managed to once again sue a family that didn't own a computer. Schools were claiming "bandwidth scarcity" as the latest excuse to ban MySpace, while a prescient judge realized that internet use at work is normal and can't be the grounds for firing someone.

We have been banging the drum for some time now that the way the DMCA has been setup and is put in practice is wide, wide open for fraud and abuse. A huge part of the problem is how content owners police the internet in general, with the overwhelming majority of DMCA notices coming from bots and automated systems. Because of the imperfections of this technology, and our allowance of its use, the end result is that copyright policing on the internet is done with a shotgun rather than a scalpel, leading to all manner of mistakes and collateral damage. But even setting those instances aside, the fact is that DMCAing content on the internet requires so little in the way of verification that there is any true ownership of the content rights in question that bogus DMCA takedowns are the norm, not the exception. And, given how little consequence comes along with issuing a bogus DMCA notice, bad actors are practically encouraged to perform this sort of chicanery.This leads to all sorts of subterfuge from bad actors looking to fool the people or, more likely, the automated systems policing any of this. One story from Plagiarism Today serves as a nice primer on just how intricate and annoying these nefarious actors behave. Writer Victoria Strauss tells the story of having one of her online articles removed over a DMCA claim. Strauss was understandably confused, as she was absolutely the original writer of the piece, and so she went digging into the details.

Summary: Craigslist -- the online marketplace that pretty much still looks the way it looked when it went live all the way back in 1995 -- has the same problems every online marketplace has: spammers and scammers.The battle against people seeking to abuse the system has been ongoing since the site's inception, but in 2008, Craigslist implemented a new control measure that temporarily stymied spammers who had found several ways to beat the systems previously employed by the online market.To mitigate spam and limit the effectiveness of scam operations, Craigslist began requiring a phone number for verification on certain postings. This posed a problem for spammers hoping to engage in mass distribution of their "offerings" since it was unlikely any spammer or scammer would want to have their personal phone tied to their illegitimate (if not actually illegal) operations. When an ad was submitted to Craigslist, the site's automated verification process would call the ad poster to relay a one-time code that would permit the listing to be posted.That wasn't the end of this new weapon against spammers deployed by Craigslist. If successfully-posted ads were subsequently flagged by other users as spam/scams, the phone number associated with the ad placement would be blocked.This led to a pitched battle between Craigslist and scammers/spammers who were interested in exploiting the market's reach. A long discussion on a message board frequented by spammers suggested several workarounds to avoid the countermeasures implemented by Craigslist. (To give you some idea how far back this discussion goes, there are recommendations for utilizing pay phones.)Some suggested using a method favored by drug dealers and other criminal conspirators: burner phones. This was an admittedly-expensive workaround for a business model that requires hundreds of views to attract a few paying victims.Others suggest buying subscriptions to online spam enablers -- ones that provided users with tons of disposable numbers without the expense of buying new phones every time a phone number was rendered unusable.Many of these suggestions were rejected by forum members, which suggests spam is only profitable when costs hover near $0. Some members speculated Craigslist was eliminating even more options by rejecting any numbers linked to VoIP services -- the cheapest option for aspiring scammers. No solution appeared to work for everyone, strongly suggesting the phone verification move by Craiglist at least temporarily put a dent in scammers' efforts.Decisions to be made by Craigslist:

While the Biden administration still hasn't fully staffed the gridlocked FCC, it does appear to be ready to reward a top Comcast lobbyist and key Biden fundraising ally with a cushy new post.According to the Washington Post, the Biden administration appears poised to "probably" give top Comcast lobbyist David Cohen the position of Canadian Ambassador, with a planned announcement likely coming in May:

It's Canada's turn in the carousel of attempts at terrible internet regulation around the world. The ruling Liberal party, which professor and internet law researcher Michael Geist has called the most anti-internet government in Canadian history for its wide variety of planned new internet laws, has been working for months on a bill to amend the Broadcasting Act and greatly broaden its scope, giving the CRTC (Canada's counterpart to the FCC) authority over all kinds of online video and audio.Canada has a long history of requiring broadcasters to support and air Canadian content, setting percentages of airtime that must be dedicated to it. While this is controversial and of questionable efficacy, it is at least coherent with regards to television and radio broadcasting over public airwaves — but Bill C-10 would bring streaming services and many other websites under the same regulatory regime, which also includes even more concerning powers to regulate political speech. Supposedly, this is targeting services like Netflix and Spotify — which already raises some serious questions as to how such regulation would work — while the bill's champion, Heritage Minister Steven Guilbeault, has repeatedly insisted that it will not cover social media and user generated content. The clause excluding such content was already worryingly narrow, and now the government has removed it anyway. And yet Guilbeault continues to insist user generated content has nothing to worry about, even though there are multiple reasons this is clearly untrue — not least of which is a new "exception that proves the rule" amendment setting the contours of UGC regulation, to be considered soon:

Earlier this year, we noted that a wide variety of states (mostly those controlled by angry, ignorant Republicans) were looking to pass blatantly unconstitutional bills that sought to force social media companies to host all speech and not moderate. As we noted in that article, Florida seemed to be leading the way, and now both houses of the Florida legislature have passed the bill that is blatantly unconstitutional, and will only serve to waste a large amount of taxpayer dollars to have this law thrown out in court.The bill, like so many other such state bills, would violate the 1st Amendment by compelling websites to host speech they have no desire to host. It's not even worth going through the bill bit by bit to explain its many different unconstitutional parts, but like so many of these bills, it tries to say that social media websites (of a certain size) will be greatly restricted in any effort to moderate their website to make it safer. There is no way this is even remotely constitutional.But, it gets worse. Seeing as this is Florida, which (obviously) is a place where Disney has some clout -- and Disney has famously powerful lobbyists all over the damn place -- it appears that Disney made sure the Florida legislature gave them a carveout. Florida Senator Ray Rodriques introduced an amendment to the bill, which got included in the final vote. The original bill said that this would apply to any website with 100 million monthly individual users globally. The Rodriques amendment includes this exemption:

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Well, look at that. The gossip newsletter Popbitch revealed UK Prime Minister Boris Johnson's personal phone number (in a somewhat hilarious way). The latest edition included this up at the top:

Back in 2014, Verizon decided it wanted to get into the media business. So it launched a website dubbed "Sugarstring." It didn't go very well. The website immediately gained attention for the fact that Verizon informed new journalist hires that they couldn't write about surveillance or net neutrality, two subjects Verizon is intimately involved in. The backlash was immediate, employees realized it was a shitshow and headed for the exits, and the whole thing was quickly shut down. But it was a good indication of what was to come.Years later, Verizon moved on to an equally ill-fated effort, the acquisitions of both AOL (bought for $4.4 billion in 2015) and Yahoo (bought for $4.48 billion in 2017). Apparently, the executive brain trust at Verizon thought it would be a great idea to buy two sharply declining 90's media brands and mush them together, hoping this would allow them to magically elbow in on the Google ad revenues they'd coveted for so long. Of course that didn't go particularly well either.There was the huge Yahoo hack, a massive privacy scandal where Verizon was busted modifying wireless data packets to track them around the internet without telling them (whoops!), and then of course the face plant by Go90, Verizon's attempt to rebrand itself as a sexy, Millennial-friendly streaming video service. Despite making a great stink about rebranding its AOL/Yahoo media and ad empire "Oath," by late 2018 Verizon was forced to acknowledge the whole thing was effectively worthless.In 2019, Verizon wound up selling Tumblr to WordPress owner Automattic at a massive loss after a rocky ownership stretch. Last year it offloaded the Huffington Post. And this week, somebody leaked word to the press that Verizon was finally considering selling the whole mess, now creatively dubbed "Verizon Media Group":

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.

You'd think a team of highly trained professionals working in the narcotics enforcement field would be a bit more careful than this. (via Jalopnik)

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: