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Another day, another multi-billion dollar defamation lawsuit. And like the other lawsuits filed over frothy falsehoods that emerged from the spittle-flecked lips of Trump lawyers and supporters, this one also targets people who definitely should have known better than to engage in the speech they did.Smartmatic -- a voting tech company whose name was dragged into the mud by a number of Fox News personalities and Trump legal team members -- is suing three Fox News hosts and two lawyers. Media members and lawyers should definitely know how to stay away from engaging in alleged libel. But everyone sued here (Rudy Giuliani, Sidney Powell, Lou Dobbs, Maria Bartiromo, and Jeanine Pirro) abandoned their better instincts to wallow in the lowest-common-denominator toxicity that exemplified Trump's response to losing a national election.And Smartmatic had hardly anything to do with the national election. While Dominion Voting Systems -- another post-election libel litigant -- is in use in nearly half the nation, Smartmatic's software was used in one single county in the US during the 2020 election.But conspiracy theorists gotta theorize. So this group of morons in hurry to curry favor with Trump amplified a bizarre claim that Smartmatic was a tool of deceased Venezuelan dictator Hugo Chavez. In reality, Smartmatic is an American company founded by two Venezuelans. Its software was used by the Venezuelan government, but there's absolutely no evidence the company itself engaged in any voter fraud, vote switching, or anything other illegal behavior Hugo Chavez's government participated in.The company's 285-page(!) lawsuit [PDF] lays down the facts. A lot of the lawsuit's runtime is given over to recounting the lies told by the two Trump lawyers and three Fox News hosts. Because the lying has been pretty much nonstop since last November, the filing is necessarily lengthy. Much of it highlights statements that were delivered by the defendants that made it clear they were stating facts, rather than simply offering their opinion on perceived election irregularities.It also points out a long list of facts that would have been verifiable if any of the defendants had felt the slightest inkling to engage in the truth for a change.

For the past few months we've been seeing a ton of terrible/ridiculous/awful/unconstitutional bills coming from mostly Republicans to try to wipe out or undermine Section 230. Most of those were focused on trying to force websites to do less content moderation. Now that the Democrats are back in power, it appears we're going to be getting the opposite. Senator Mark Warner has introduced his new Section 230 reform bill, called the SAFE TECH Act ("Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act" co-sponsored by Senators Mazie Hirono and Amy Klobuchar), and it is one of the worst Section 230 bills I've seen. It is difficult to explain just how bad this bill is concisely, because it has so many bad ideas crammed into one single bill. It's as if none of these three Senators or their staff spoke to anyone who actually understands how the internet works, or how content moderation/trust and safety works. It's stunning in the ignorance it displays.About the only good thing I'll say about it, is that (unlike most bills) at least Warner released a redline version to show how it would actually (massively) change Section 230. He also put out an incredibly disingenuous FAQ that flat out lies about... nearly everything. We'll go through that in a bit.Basically, this bill takes nearly every single idea that people who want there to be less speech online have had, and dumped it all into one bill. There's a lot in there, and nearly all of it is bad. Last week I wrote about a draft bill in the House that suggested carving out civil rights law from Section 230. In my analysis of that bill, I noted that it appeared to come from a well meaning place, but was simply misguided. This bill, which also includes a carveout for civil rights law, does not come from a well meaning place. The drafters of the bill are either malicious or ignorant. It's not a good look for Senators Warner, Hirono, and Klobuchar.A key thing to recognize is that it's obvious that the drafters of this bill believe the myth that 230 protects "big" tech companies. The bill is written as if it is only talking about Facebook, YouTube, and Twitter. Warner handwaves away the idea that the bill would destroy smaller companies in his announcement by ridiculously (and against all evidence to the contrary) saying that startups are too small to sue, so it would only be used against larger companies.The most devious and nefarious part of this is that the bill effectively wipes out Section 230 protections for the entire internet while pretending it's just a minor change. This bill is about as close to a full repeal of Section 230 as you can get realistically. In the press release about the bill, Warner claims that it's just a tweak to 230 because "these changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases," but that would also be true with repeal. Because most things that people want to blame on internet websites are not actually violations of the law. And, assuming a form of distributor liability is what the courts decide on, that would mean websites wouldn't be liable for most things on their site anyway -- but would result in long and costly legal battles before they could prove that.And this bill guarantees the same exact thing. The biggest, most consequential change, is that it takes the famous "26 words," which are Section (c)(1) of the current law, removes the protections entirely if money exchanges hands, and then changes it from an immunity to merely "an affirmative defense." That may not seem like much, but it basically wipes out all of the actual benefits of 230.Saying that you don't get (c)(1) if money exchanges hands, basically wipes out Section 230 for many, many services. All web hosting would no longer be protected by Section 230. If, as many people have been demanding, social media offers up paid options (say, to remove ads), doing so would remove their 230 protections. Incredibly, this bill is coming from the same people who have been saying that Facebook and Twitter should offer a "paid version" without ads or tracking -- but, under this bill, if they do that, they'd lose 230! Incredibly, under this bill, the two cases that inspired Section 230 -- the CompuServe case and the Prodigy case -- would not be eligible for 230 protections, because both were paid services!The switch from (c)(1) being an immunity to being "an affirmative defense" in which the website "has a burden of proving by a preponderance of the evidence" basically erases the key procedural benefits of Section 230 -- which is that it gets cases tossed right up front. This gets somewhat deep in the weeds of civil procedure, but having (c)(1) as an immunity allows companies to file a relatively straightforward motion to dismiss upfront, without having to do a lot of expensive legal work, and argue that, because of 230, there is no legitimate claim in the complaint, even if everything in that complaint is accurate. This is the key benefit of 230 in protecting websites.But by making it an affirmative defense, which the website has to prove by a preponderance of evidence, you've just made everything a lot more expensive and it will take a lot longer to deal with. Not only are you going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you're talking about it costing at least a million dollars for any company, and probably a lot more.This wipes out the entire benefit of Section 230 by itself. Most companies, of course, will then try to avoid just having to face this by quickly taking down anything even remotely questionable or anything that people complain about. And they'll still get sued. This bill would absolutely destroy most of the open web.The second massive change, is that it would exclude Section 230 entirely from "injunctive relief" claims for failing to remove "harmful" content. In other words, this would allow a bevy of lawsuits from people who just want something taken offline (and aren't asking for monetary damages), that they will claim creates "harm" to them, and the websites can no longer respond with 230. While supporters of this bill might argue that filing such a lawsuit alone would be expensive, so this wouldn't be abused, that ignores how frequently we've seen especially the rich and powerful try to use any legal means possible to remove content they dislike from the internet. This clause is like a free shot for the rich and powerful to silence criticism. It's like a pro-SLAPP clause!The bill then adds a bunch of other carveouts from 230: civil rights law, antitrust, harassment, stalking, human rights law and wrongful death. As we already discussed, while it may sound good to say this can't be used to block civil rights cases, in actual practice a bunch of recent "civil rights" cases have involved white supremacists, out-and-out misogynists, and other terrible people claiming that their civil rights were violated by being kicked off of platforms. Enabling such lawsuits seems incredibly short sighted.This bill is dangerous.And what's truly obnoxious about it is that in the FAQ about it, Mark Warner pretends otherwise.

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An ongoing federal lawsuit is challenging the CBP's decision to turn supposed border control efforts into easy drug busts for local cops.A New Hampshire man is challenging the checkpoints set up by the CBP nearly 100 miles from any border in New Hampshire. The CBP apparently decided to spend a couple of years camped out on I-93 (from 2017 to 2019), 90 miles away from the nearest border.The 90 mile marker is significant. Anything within 100 miles of a US border is still considered a "border" (even if it's an international airport located further than 100 miles inland from any natural border). Inside this Constitutional gray area, rights are malleable. In many cases, they're almost nonexistent. But the challenge raised here addresses what the CBP is doing and how it has nothing to do with any border protection or customs efforts.Jesse Drewniak has sued the CBP, along with an agent and supervisor, for an apparently unlawful search that resulted in a small amount of hash oil being recovered from his car and, more significantly, some criminal charges from local prosecutors.Drewniak's case cites a New Hampshire court's decision [PDF] that found in favor of another person caught in the CBP's inland dragnet. As cars waited to be cleared by CBP officers, other officers ran dogs around their cars. Alerts resulted in searches. And these searches often resulted in drug cases handed over to local law enforcement.As the New Hampshire court points out, this violates New Hampshire's constitutional protections. And it has nothing to do with the CBP's stated reasons for setting up a checkpoint 90 miles from the Canadian border. Here's what happened at the inland checkpoint in 2018, which was apparently the CBP's standard M.O. for the two years the checkpoint remained active.

So we've noted that a lot of the accusations that Huawei spies on Americans on behalf of the US government are lacking in the evidence department. The company's been on the receiving end of a global blocklist based on accusations that have never actually been proven publicly, levied by a country (the United States) with a long, long history of doing exactly what it accuses Huawei of doing. While scrutiny of Chinese gear is certainly warranted, at the same time it's a rather idiotic rabbit hole filled with xenophobic politicians being played by US companies that like to drum up NatSec hysteria for political advantage.That of course doesn't mean Huawei, like so many telecom giants, isn't a terrible company that routinely makes unethical decisions. Like when the company was busted helping several different African governments to spy on political opponents and journalists. Or when it was shown to be eagerly helping China build facial identification systems to quickly identify Uighur Muslims. Or, more recently, when the company was busted creating entirely fake people in a ham-fisted bid to try and boost its reputation.Last week, the company was busted for creating at least fourteen different Twitter accounts pretending to be respected telecommunications experts, writers, and assorted academics. Their goal, to cast doubt on Belgian legislation attempting to limit "high risk" vendors from building the nation's 5G networks. The bogus, pro-Huawei accounts used computer generated profile pictures. Their Tweets were then amplified by official, and real, Huawei executives:

It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.

Last year, as a consequence of the COVID-19 pandemic, the “offline” world suddenly became a lot more online. All around the world, people have struggled to adapt. Worst off are those who can’t take internet access for granted. The Federal Communications Commission will spend many resources on the domestic side of this challenge, further investing in internet connectivity reach, quality, and affordability. But the international side, known as “internet freedom,” is a harder question.Internet freedom may generate fewer headlines than a decade ago, when it was a signature issue of then-Secretary of State Hillary Clinton. But internet freedom is just as necessary now as it was then. For example, in China, crucial information about the spread of COVID-19 was often unavailable, and citizens resorted to using technical workarounds to upload and view videos about the pandemic on government-blocked YouTube. And in Iran, those who follow the Baháʼí faith are denied access to education, and depend on internet freedom technologies to give themselves the most basic opportunities. There are many more such examples in internet repressive countries around the world.Fortunately, bipartisan support for internet freedom in Congress has kept funding levels robust over the past four years, and consistent leadership from within the Department of State and other funders has kept this work strong. But as with so many other areas of policy, the Trump administration not only did not add value, but actively made things worse by engaging in a harmful turf war. Partisan leadership at the U.S. Agency for Global Media (USAGM) disrupted the funding and operations of its independent grantee Open Technology Fund (OTF) when OTF chose to pursue good policy over bad politics, an approach that - to give one example - led the organization to support early development of the now-popular Signal secure messaging service.The first internet freedom action by the Biden administration should be to reverse course and install leadership at USAGM that can work constructively with OTF, the State Department, and other funders to support scalable open source technology and community internet freedom solutions. Congress did its part through the defense funding bill passed on New Year’s Day (in the first-ever override of a veto by Trump), allocating substantial resources and setting the tone for open source to be at the heart of internet freedom efforts. And President Biden has cleared the way by firing Michael Pack, head of USAGM, on inauguration day. Now it’s President Biden’s move again, to make a better appointment at USAGM than his predecessor did.Internet freedom is a human rights issue, but it isn’t just a human rights issue. As 2020 demonstrated so clearly, the internet is connective tissue for massive parts of our economy and our society. Thus, China’s Great Firewall does far more than just repress free expression: it also implements an economic protectionist agenda, and is a powerful tool for fostering nationalist support at home. To counter these challenges, the Biden administration should adopt a positive agenda of supporting the global free flow of data and information, to prove in practice the superiority of digital globalization over repression and protectionism. That means growing the internet freedom agenda further, well above and beyond the State Department’s Bureau of Democracy, Human Rights, and Labor where it was incubated, to embrace the economic and political divisions at State as well as the Department of Commerce.Perhaps more than any other federal agency, the State Department is in need of a hard reboot. Under Trump, the United States reverted to being a unilateral bully, bringing back the “Team America: World Police” spirit of the George W. Bush administration, forcing out centuries of institutional knowledge and expertise. Unsurprisingly, that strategy has failed. China in particular possesses many advantages on the global stage, and will be in an even better position in many respects after 2020. The United States faces a drastically weakened foreign policy position, and cannot turn any tides alone. In the context of internet freedom, the American agenda should include expanding efforts with the Freedom Online Coalition and other diplomatic avenues where we can work arm-in-arm with other countries who, frankly, possess more goodwill on the global stage than the U.S. does right now.Finally, leadership starts at home. For at least the past decade, the U.S. approach to digital government surveillance has been outright hostile, highlighted by frequent battles in an ill-conceived war on encryption. President Biden has an opportunity to show strong support for privacy and security by shaping the interagency and National Security Council to better balance law enforcement with civil rights and internet freedom champions. The newly created role of a White House coordinator for democracy and human rights is a good start. It’s past time the U.S. stops pursuing backdoors that would put everyday internet users at great risk.Where the internet isn’t open, the people aren’t free. Although the challenges facing the Biden administration in putting the United States back together will be many and broad-ranging, restoring American leadership on internet freedom should be a top priority.Adam Fisk is the founder and president of Brave New Software, a leading 501(c)(3) developer of internet freedom technologies including Lantern and a recipient of U.S. government internet freedom support. Chris Riley is a strategic advisor to Brave New Software and a former member of the internet freedom program team at the State Department.

A few weeks ago Twitter announced Birdwatch as a new experimental approach to dealing with disinformation on its platform. Obviously, disinformation is a huge challenge online, and one that doesn't have any easy answers. Too many people seem to think that you can just "ban disinformation" without recognizing that everyone has a different definition of what is, and what is not disinformation. It's easy to claim that you would know, but it's much harder to put in place rules that can be applied consistently by a large team of people, dealing with hundreds of millions of pieces of content every day.Facebook has tried things like partnering with fact checkers, but most companies just put in place their own rules and try to stick with it. Birdwatch, on the other hand, is an attempt to use the community to help. In some ways it's taking a page from (1) what Twitter does best (enabling lots of people to weigh in on any particular subject), and (2) Wikipedia, which has always had a community-as-moderators setup.

One of the key battles surrounding the EU Copyright Directive involves the threshold at which upload filters will block the use of copyright material in things like memes and mashups. A year ago, Germany was proposing ridiculously tight restrictions: 128-by-128 pixel images, and three-second videos. Now, it is framing the issue in terms of uses that aren't "automatically" blocked by upload filters. The proposed limits here are 15 seconds of video or audio, 125K graphics, and 160 -- yes, 160 -- characters of text (original in German). Even these tiny extracts could be subsequently blocked by upload filters, depending on the circumstances.The worsening situation over upload filters has obscured the other bad idea of the EU Copyright Directive: the so-called "link tax", which would require large Internet companies like Google to pay when they use even small amounts of news material. One worrying development in this area is that the idea has spread beyond the EU. As Techdirt reported, Australia is bringing in what amounts to a tax on Google and Facebook for daring to send traffic to legacy news organizations -- notably those of Rupert Murdoch. In July last year, the Australian government released a draft of what is now dubbed the "News Media Bargaining Code". One of the people arguing against the idea is Tim Berners-Lee (pdf):

A bunch of Republican state legislators across the country are apparently unconcerned with either the 1st Amendment (or reality) have decided that they need to stop social media companies from engaging in any sort of content moderation. Earlier this week, Florida Man Governor Ron DeSantis proposed just such a law, which would be struck down as unconstitutional with amazing speed. The bill, dubbed the "Transparency in Technology Act" would do a bunch of things laid out in this infographic the Florida GOP sent around, almost all of which the state has no authority to do. On the content moderation front, it would require set standards for content moderation that can't easily be changed and require the company apply those standards consistently.That's what lots of people ask for without realizing that's an impossible ask. "Consistency" is not nearly as clear as people seem to think it is. Every scenario is different, and context plays a huge role in determining these things -- but people who complain about inconsistent enforcement never seem to recognize the wider context, and always focus in on some superficial similarity about the content, and insist that different outcomes mean inconsistency. It also ignores the scale of the problem. It also fails to take into account that policies have to keep being updated, because the issues that trust and safety teams face constantly are changing.This bill would be like passing a law saying that the state of Florida must clearly define all its laws, can't pass new laws, and must apply the law consistently. That's not possible.Even more ridiculous (and more unconstitutional) is that the bill would bar any moderation (or removal) of any political candidate. Of course, this would just mean that any troll who wants to be a total asshole online would register to run for office. Remember, it was rumored that well known online troll Laura Loomer supposedly ran for Congress in part because of she believed that it would force Twitter to give her her account back (which did not happen).Of course, it's easy to just point at Florida and say "there goes Florida again..." but it's actually Republican legislators in a whole bunch of states. And this wasn't even the first such bill in Florida. A week or so earlier, Republican state Senator Joe Gruters introduced a bill called the "Stop Social Media Censorship Act" which bars any moderation of "religious or political speech."Gruters may have introduced the bill, but it doesn't look like he wrote it. Because in Kentucky, Republican Senators Robby Mills and Phillip Wheeler introduced a nearly identical bill. Oh, and over in Oklahoma, Republican Senator Rob Standridge also introduced an identical bill. In Arizona, it's Senator Sonny Borrelli who has introduced very similar legislation, though his looks a little different, and (insanely) would try to put into law that a social media website is "deemed to be a publisher" and "deemed not to be a platform" which is, you know, not a thing that actually matters. In North Dakota, there's Republican State Rep. Tom Kading who's similar bill also includes the nonsense publisher/platform distinction.All of these bills are (1) nonsense, (2) pre-empted by federal law, and (3) blatantly unconstitutional under the 1st Amendment. A quick lesson for state legislators: the 1st Amendment means that the government (that's you!) cannot compel private parties (that includes social media companies!) that they have to host speech with which they disagree with. There's plenty of case law on this, but I'll point you to West Virginia State Board of Education v. Barnette which establishes quite clearly that the government cannot compel speech under the 1st Amendment. On top of that, I'll point people to the relatively recent ruling, written by Brett Kavanaugh (remember, Republicans, you supported this guy) and signed by all of the Conservative Justices, in the Manhattan Community Access Corp. v. Halleck case, in which it was made clear that social media websites are not state actors, and cannot be compelled to host speech. As Kavanaugh wrote in that ruling:

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We keep pointing out to people the very slippery slope that happens when we say it's okay for the government to tell websites how they have to moderate. And what's happening in India is a very important case study. As you're hopefully aware, there have been ongoing farmer protests in India, as farmers are quite upset about regulatory changes that they fear will destroy their businesses. The protests have been going on for weeks, but things have recently escalated to include some violence.Prime Minister Narendra Mohdi is responding to all of this in a similar fashion to what he's done before: by cracking down on free speech and going after his critics. It started with full internet blackouts in places where the protesters were, with the government claiming it was necessary to cut off the internet to "maintain public safety" (yeah, right). Then, the government demanded that Twitter block the accounts of various journalists, publications, and celebrities who have been critical of Mohdi. Twitter complied, but after widespread criticism, it turned those accounts back on, apparently telling the Indian government that the tweets were protected free speech and newsworthy.One of the accounts that had been taken down was the Caravan, a small but influential investigative journalism outfit that is widely read among politicians. A writer for Caravan, Vidya Krishnan, has a chilling account in The Atlantic about how this crackdown represents "the end of the Indian Idea." It's well worth reading. It notes that beyond just having the Twitter account shut down, the Mohdi government has arrested a Caravan writer and begun an investigation of its editors.

For years, Comcast has slowly but surely expanded its pointless and arbitrary broadband usage caps and overage fees into all of its markets (picture the boiling frog metaphor, with you as the frog). And for most of that time, the company avoided doing so in the Northeast where it faces more competition from competitors like (uncapped) Verizon FiOS. But recently, likely fearing an incoming Biden FCC willing to do its job, Comcast rushed to finally push these useless, confusing, and expensive restrictions into the Northeast. In the middle of a pandemic. When people were already struggling to pay for basic utilities and rent.Needless to say, lawmakers weren't happy about it. Massachusetts lawmakers were quick to complain about the practice, noting that price gouging captive customers during a financial and health crisis isn't a good look. This morning, Pennsylvania AG nabbed headlines after Comcast announced it would be pausing the expansion of usage caps for a few months (until July):

It's that special time of year again where we here at Techdirt need to remind you that, no, the NFL cannot keep you from referring to The Super Bowl as The Super Bowl, full stop. While the NFL stomps around the entire country every year, slapping down bars and churches for hosting Super Bowl parties, all while an extremely unhelpful media plays along, the truth is that most of the bullying the NFL does isn't over actual trademark infringement. Sure, if some business advertises some association or endorsement by the NFL, that would be trademark infringement. Or if they claimed endorsement of the game or the NFL, that too would be infringing use. But a church simply hosting a Super Bowl party is not trademark infringement.And, of course, the silliest output of this confusion is people and companies using half-baked euphemisms to refer to the Super Bowl instead. Everyone knows what they're talking about and, yet, this somehow isn't infringing. So, were there any confusion, it would still exist, and yet the NFL relents. The most common of these has been "The Big Game", of course, and its use continues to this day.

Summary: GitHub solidified its position as the world's foremost host of open source software not long after its formation in 2008. Twelve years after its founding, GitHub is host to 190 million repositories and 40 million users.Even though its third-party content is software code, GitHub still polices this content for violations of its terms of service. Some violations are more overt, like possible copyright infringement. But much of it is a bit tougher to track down.A GitHub user found themself targeted by a GitHub demand to remove certain comments from their code. The user's code contained the word "retard" -- a term that, while offensive in certain contexts, isn't offensive when used as a verb to describe an intentional delay in progress or development. But rather than inform the user of this violation, GitHub chose to remove the entire repository, resulting in users who had forked this code to lose access to their repositories as well.It wasn't until the user demanded an explanation that GitHub finally provided one. In an email sent to the user, GitHub said the code contained content the site viewed as "unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable." More specifically, GitHub told the user to remove the words "retard" and "retarded," restoring the repository for 24 hours to allow this change to be made.Decisions for GitHub:

The expiring breaths of a sensationalistic failure are emanating from a Florida sex trafficking investigation's soon-to-be corpse. A massive sting operation -- built on surreptitious recordings of massage parlor employees and their customers -- ended with nothing more than a bunch of solicitation charges. The alleged massive sex trafficking operation was actually just a bunch of consensual activity, with massage parlor employees free to come and go as they pleased.It still made headlines, mainly because New England Patriots owner Robert Kraft was one of those caught on camera. But nearly every attempted prosecution has been thwarted by the actions of law enforcement officers, whose recordings illegally intruded into private spaces, violating the Fourth Amendment. The Appeals Court of Florida tossed the allegedly incriminating recordings, finding them unconstitutional.For some reason, the agencies that made the surreptitious, illegal recordings are still holding onto them. The state attorney's office has allowed the retention of the videos, claiming they might be useful to plaintiffs suing law enforcement officers and agencies over violated rights.On the face of it, this seems like a reasonable assertion. There is at least one federal lawsuit involving this sting operation underway. But the state attorney -- David Aronberg -- thinks immunity (qualified or absolute) will allow him and several law enforcement agencies to escape unscathed. Until that happens, Aronberg wants the recordings to remain intact until this litigation concludes, claiming his office can't "legally or ethically" order the destruction of potential evidence against him.But his arguments aren't working. As Elizabeth Nolan Brown reports for Reason, a federal judge has ruled against the state attorney.

Last week, the Oversight Board -- which is the official name that the former Facebook Oversight Board wants you to call it -- announced decisions on the first five cases it has heard. It overturned four Facebook content moderation decisions and upheld one. Following the announcement, Facebook announced that (as it had promised) it followed all of the Oversight Board's decisions and reinstated the content on the overturned cases (in one case, involving taking down a breast cancer ad that had been deemed to violate the "no nudity" policy, Facebook actually reinstated the content last year, after the Board announced it was reviewing that decision). If you don't want to wade into the details, NPR's write-up of the decisions and policy recommendations is quite well done and easily digestible.If you want a more detailed and thoughtful analysis of the decisions and what this all means, I highly recommend Evelyn Douek's detailed analysis of the key takeaways from the rulings.What I'm going to discuss, however, is how the decisions seem to have only reinforced... absolutely everyone's opinions of the Oversight Board. I've said before that I think the Oversight Board is a worthwhile experiment, and one worth watching, but it is just one experiment. And, as such, it is bound to make mistakes and adapt over time. I can understand the reasoning behind each of the five decisions, though I'm not sure I would have ruled the same way.What's more interesting to me, though, is how so many people are completely locked in to their original view of the board, and how insistent they are that the first decisions only confirm their position. It's no secret that many people absolutely hate Facebook and view absolutely everything the company does as unquestionably evil. I'm certainly not a fan of many of the company's practices, and don't think that the Oversight Board is as important as some make it out to be, but that doesn't mean it's not worth paying attention to.But I tended to see a few different responses to the first rulings, which struck me as amusing, since the positions are simply not disprovable:1. The Oversight Board is just here to rubberstamp Facebook's decisions and make it look like there's some level of review.This narrative is slightly contradicted by the fact that the Oversight Board overturned four decisions. However, people who believe this view retort that "well, of course the initial decisions have to do this to pretend to be independent." Which... I guess? But seems like a lot of effort for no real purpose. To me, at least, the first five decisions are not enough to make a judgment call on this point either way. Let's see what happens over a longer time frame.2. The Oversight Board is just a way for Facebook and Zuckerberg not to take real responsibilityI don't see how this one is supportable. It's kind of a no-win situation either way. Every other company in the world that does content moderation has a final say on their decisions, because it's their website. Facebook is basically the first and only site so far to hand off those decisions to a 3rd party -- and it did so after a ton of people whined that Facebook had too much power. And the fact that this body is now pushing back on Facebook's decisions suggests that there's at least some initial evidence that the Board might force Zuckerberg to take more responsibility. Indeed, the policy recommendations (not just the decisions directly on content moderation) suggest that the Board is taking its role as being an independent watchdog over how Facebook operates somewhat seriously. But, again, it's perhaps too early to tell, and this will be a point worth watching.3. The Oversight Board has no real power, so it doesn't matter what they do.The thing is, while this may be technically true, I'm not sure it matters. If Facebook actually does follow through and agree to abide by the Board's rulings, and the Board continues the initial path it's set of being fairly critical of Facebook's practices, then for all intents and purposes it does have real power. Sometimes, the power comes just from the fact that Facebook may feel generally committed to following through, rather than through any kind of actual enforcement mechanism.4. The Oversight Board is only reviewing a tiny number of cases, so who cares?This is clearly true, but again, the question is how it will matter in the long run. At least from the initial set of decisions, it's clear that the Oversight Board is not just taking a look at the specific cases in front of it, but thinking through the larger principles at stake, and making recommendations back to Facebook about how to implement better policies. That could have a very big impact on how Facebook operates over time.As for my take on all of this? As mentioned up top, I think this is a worthwhile experiment, though I've long doubted it would have that big of an impact on Facebook itself. I see no reason to change my opinion on that yet, but I am surprised at the thoroughness of these initial decisions and how far they go in pushing back on certain Facebook policies. I guess I'd update my opinion to say I've moved from thinking the Oversight Board had a 20% chance of having a meaningful impact, to now it being maybe 25 to 30% likely. Some will cynically argue that this is all for show, and the first cases had to be like that. And perhaps that's true. I guess that's why no one is forced to set their opinion in stone just yet, and we'll have plenty of time to adjust as more decisions come out.

Five years or so ago, frustration at John Deere's draconian tractor DRM culminated in a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.Of course the problem isn't just restricted to John Deere. Apple, Microsoft, Sony, and countless other tech giants eager to monopolize repair have spent years bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own.Fast forward to 2021, and roughly fourteen different states are all considering pending right to repair legislation that would put power back in the hands of consumers and independent repair shops. Some states, like Montana, are considering different types of legislation that would cover both consumer hardware and agricultural equipment.COVID is also pouring some gasoline on this fire, highlighting how manufacturers frequently enjoy a stranglehold over tools, documentation, and replacement parts, which can literally put human lives at risk by causing repair delays:

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Former Senator Joe Lieberman was a ridiculous censorial problem when he was a Senator. Back in the early days of social media, when the first questions of content moderation were first gaining attention, Lieberman was perhaps the original moral panic Senator, demanding censorship of 1st Amendment protected content. It started back in 2008, when he sent an angry letter to YouTube, saying that they had to take down "terrorist content." YouTube reviewed a bunch of the links he sent, and removed only the ones that violated YouTube's policies. That made Lieberman mad and he sent a second letter demanding that the company take down "terrorist" videos. He also did the same thing to Twitter. Because of the political pressure, these companies became more aggressive, leading them to... take down a human rights watchdog that was documenting war crimes. Because sometimes "terrorist videos" are actually... "documenting war crimes."A smarter person might step back and realize that there's a lot of nuance here, and what seems "easy" may be a bit more complex. But not old Joe Lieberman. Instead, he ramped up his desire to censor. He demanded Amazon stop hosting Wikileaks, and ordered Google to add a "this blog is run by a terrorist" button to all Blogger blogs. He also tried to expand the Espionage Act to cover journalists who publish leaked information.So perhaps it's not surprising that when CBS News asked Lieberman to come on with Major Garrett and discuss Section 230 and content moderation, Lieberman immediately jumped to "they should get rid of 230" and censor more nonsense. Major Garrett kicks the conversation off with... a total misrepresentation of Section 230.

Way back in 2014 the FTC sued AT&T for selling "unlimited" wireless data plans with very real and annoying limits. The lawsuit noted that, starting in 2011, AT&T began selling "unlimited" plans that actually throttled upwards of 90 percent of your downstream speeds after using just two or three gigabytes of data. AT&T spent years trying to wiggle out of the lawsuit via a variety of legal gymnastics, including at one point trying to claim that the very same net neutrality and FCC Title II rules AT&T was attempting to kill, prevented the FTC from holding it accountable.In late 2019 AT&T agreed to a $60 million settlement with the FTC without actually admitting any wrongdoing. Consumers who were lied to and ripped off for years nabbed somewhere around $12 each. Another, separate California class action recently came to a close with AT&T agreeing to a $12 million settlement. There too, consumers are expected to get somewhere around $10 to $11 each because they likely would have seen even less after a full trial:

When it comes to copyright enforcement, there is always this tension between protection against true copying of expression of content or characters and the benefits of having wider attention paid to the original content. This tension is perhaps most distinctly exhibited when it comes to works and activities done and enjoyed by fans. Fan-fiction, fan-art, fan-made games: these all tend to ride the gray zone between cost and benefit to original creators such that the reactions to them by copyright holders tend to be all over the place. Some creators recognize that most of this expression is a net benefit, while others go the full protectionist route.Cosplay is in this same boat. As with the above examples, there is nuance when it comes to cosplay. Most cosplay is pure fandom, labors of love enjoyed by participants and viewers alike. In other cases, cosplayers can make serious money from cosplaying. And it's for the latter that the Japanese government appears to think new copyright laws are needed.

How does something horrific become an epidemic? Well, if you ignore any problem long enough, it's pretty much guaranteed to get worse.Early last year, the DOJ released its report [PDF] on New Jersey's Edna Mahan Correctional Facility. The facility houses around 400 female inmates and is overseen by a little over 400 employees. Years of complaints from inmates prompted the DOJ to open an investigation in 2018. It found a pattern of rights violations, pointing out that five corrections officers had been convicted of sexual abuse charges from October 2016 to November 2019, including these three:

The most important point we've repeatedly made about content moderation is that it's not simple, and there are always trade-offs — but this doesn't mean "do nothing" is a viable option. There are no perfect solutions, and that's why experimentation and innovation is important, especially when it comes to pressing moderation questions like those around abuse and harassment. This week we're joined by Tracy Chou, who is doing just this kind of innovation with her app Block Party, to talk about building new tools for fighting abuse and harassment online.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

If you haven't read it yet, I highly recommend Kash Hill's incredible NY Times story about a clearly disturbed individual, who admits to "suffering from severe mental health illnesses," who filled the web with horribly defamatory information about a random guy and everyone in his family. It turned out that the reason appeared to be that nearly 30 years ago, the guy's father had fired the woman from her job in a real estate office. The story is all too familiar to anyone who has experienced harassment online. One of the tactics used was posting completely made up information on a variety of "gripe sites," many of which do very little moderation, or will only take down information if you pay. These sites often fill up with garbage, and certain people have learned to abuse those sites. Indeed, there seem to be a few people who regularly attack everyone they feel has wronged them using such sites.The article focuses mainly on Ripoff Report, a site we've written about many times in the past, in part because of its various court cases that have often created good Section 230 law. That's not to say Ripoff Report is a good player in the space. Other stories have revealed some highly questionable behavior and the company's position regarding how it handles content moderation is one that I think is short sighted and extremely unhelpful. There are, also, other sites in the space with a wide variety of policies, some much better than Ripoff Report, some much worse.The article does mention Section 230, and suggests that it is somehow to blame for the problems experienced by the victims of the person in the story. However, I am perplexed about why and what it has to do with this story in any way. The abuser is Canadian. Most of the woman's victims are from Canada and the UK, not the US. The woman doing the abuse was identified and sued for defamation, and a Canadian court deemed her a vexatious litigant and ordered her to stop attacking people online. When it continued, she was held in contempt of court and sentenced to prison.And even the main site listed in the story, Ripoff Report, notes that it responded to lawyers from some of the victims and took down the stories at issue.So, we're talking about a non-US abuser and non-US victims, and a US website that actually took down the content. It did take more time than they had hoped, but the system still did work.Or, some might argue, the problem is Google, that shows these sites way up the listings on searches on your names. Except... that's not true either. As the article notes, Google has increasingly downranked these kinds of sites:

Another constitutional challenge to FOSTA has failed, at least for the time being. The bill no one in law enforcement thought would actually help combat sex trafficking became law in early 2018. Since then, it has had zero effect on sex trafficking. And the impetus for its creation -- the prosecution of Backpage execs -- proceeded right along without the law in place.FOSTA's constitutionality has been challenged before. Last summer, the DC Court of Appeals revived a challenge after the plaintiffs were shot down at the district level. The Appeals Court said the law was littered with broad language that could be construed to target legal actions and behavior. It particularly had a problem with the terms "promote" and "facilitate" when used in conjunction with the law's sex trafficking language.

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You may recall, last summer, there was a big dustup regarding a letter published in Harper's Magazine about cancel culture (though it didn't use that term). I pointed out the irony of a bunch of very famous writers whining about being silenced and even took a shot at what a much better letter could have said. Harper's even asked me to pen a response to the letter which it published (though, it only gave me a limited amount of space, and complained about some of what I originally submitted, which I -- at least -- found amusingly ironic).Since then these debates have continued to flare up, as people keep screaming "cancel culture" in many situations where it simply does not apply. There are some who argue that there is no such thing as "cancel culture," which possibly takes things too far. I do think what can be said is that there are some cases where someone loses their job for questionable reasons, often having to do with a bunch of people online overreacting. And it's reasonable to point out those cases and to highlight the unfair response. However, the focus on "cancel culture" and the willingness to expand that phrase to cover just about any consequences is very much being abused by the powerful to try to shield themselves from consequences.Two recent pieces help drive this home. The always insightful and brilliant Margaret Sullivan at the Washington Post has an excellent piece about how being held accountable is not "cancel culture." This article drove home a key point for me: even if there are cases of cancel culture, the people who are whining most loudly about it are really trying to use those few legitimate stories of overreaction as a whitewash shield to argue that they should never be held accountable for their own behavior or assholish behavior.As Sullivan points out, most of what people are complaining about as "cancel culture" is really people exercising their 1st Amendment rights to call out bad behavior and ridiculous arguments. And that's a good thing. We should want bad behavior and ridiculous arguments to be called out. And, yes, we should recognize that sometimes people overreact. And sometimes there's more nuance and the bad behavior maybe isn't bad, or the ridiculous arguments aren't so ridiculous. But often they are. And that's where people speaking out and debating these things makes sense. As Sullivan notes, having people push back on nonsense is a good thing. It's called responsibility:

You'd be hard pressed to find a sector that has benefited more from the Trump era than telecom. In the last four years, telecom monopolies not only received billions in tax cuts (AT&T nabbed an estimated $42 billion in tax breaks alone), they convinced the Trump administration to effectively neuter the FCC's consumer protection authority, a move arguably worth countless billions more. In both instances these perks were doled out under the auspices that this would drive hiring and network investment. In reality, not only did that not happen, but the opposite happened.Reports this week indicate that AT&T and Verizon alone have laid of 95,000 employees in just the last five years alone:

A Texas immigration lawyer is suing the DHS and CBP over one of its infamous border device searches. His attempt to keep the federal government from accessing privileged attorney-client communications was rebuffed by CBP officers who decided they'd just keep his phone until they were able to access the contents. This is especially problematic considering the lawyer, Adam Malik, is representing clients currently engaged in lawsuits and other legal actions against or involving both the DHS and CBP. (via ABA Journal)Another troubling aspect of this case is that Malik had already proved his non-terrorist bona fides to the federal government well before CBP officers decided he was in need of some enhanced screening. From the lawsuit [PDF]:

We still haven't seen an end to the fallout resulting from a botched (and bogus) drug raid in Houston that ended with two residents killed by police officers. It also ended with five officers wounded -- one of them paralyzed. The raid was predicated on false statements made by Officer Gerald Goines, who secured permission from a judge to perform a no-knock raid, claiming the residents were armed and selling heroin.While guns were recovered, no heroin was. Indeed, no evidence of drug dealing was recovered -- just personal amounts of marijuana and cocaine. The informant that supposedly made the heroin buy never existed and the supposed result of this controlled buy was actually heroin pulled from an officer's squad car. All of Goines' lies led to two deaths and five injured officers. Goines is currently facing a slew of charges, including two counts of felony murder.Other participants in the raid are facing charges as well. KHOU reports six more Houston PD officers have been indicted for their involvement in the raid or for other criminal acts they engaged in while working in the department's narcotics unit.

A few days ago, a friend asked if I'd ever heard of the "Digital Creators Coalition," an apparently new group that claimed to be representing independent artists. I was unfamiliar with it, and its website provided basically no information about who was actually behind it, beyond this vague statement on its "who we are" page:

During the runup to the presidential election, through the election, past the election, past the Electoral College vote, past the states' certification of votes, multiple recounts and investigations, all the way up until VP Mike Pence was due to certify the vote, Donald Trump and his squad of sycophants claimed -- without evidence -- the election was fraudulent.These claims -- buttressed by public statements, heated tweets, and multiple baseless lawsuits -- lit a fuse that triggered a January 6th explosion when Trump supporters stormed the Capitol building in a futile attempt to overturn the results of the presidential election.Roughly a week after the insurrection, Dominion Voting Systems -- accused of being a tool of the corrupt Venezuelan government -- sued one of the more batshit extensions of Trump's legal army, Sidney Powell. The defamation suit accused Powell of lying about pretty much everything related to Dominion.Unfortunately for Dominion, it is a public figure so it's going to have to prove deliberately false statements were made by people who knew the claims were false when they made them. Powell might be able to walk away from this suit, despite all of her false statements. Some were made in court which makes those claims immune from lawsuits. But others were made in public and those might end up costing her some money. Truth is the absolute defense to immunity but being a living, breathing caricature who embraces every galaxy brain conspiracy theory that floats by in the internet flotsam is also a defense. And that defense is "no one takes me seriously so it's unlikely any reasonable people took my wild-ass lying claims about Dominion seriously either." If Alex Jones can use it, so can Sidney Powell.Dominion's next target is Rudy Giuliani, someone who echoed a bunch of Powell's wild claims and continued to do so as the Trump campaign (and other pro-Trumpers) lost lawsuit after lawsuit attempting to overturn election results.Giuliani's escapades as Trump's legal rep have made it possible for him to make the same claim in his defense: that he's so devoid of credibility no reasonable person would take his claims seriously. But Dominion's lawsuit [PDF] makes a good case for a finding of actual malice by pointing out certain actions taken (or not taken) by Giuliani that strongly suggest he knew his public anti-Dominion statements were false.The opening paragraph spells it out succinctly:

Another day, another completely ridiculous, wrong, and painful op-ed in a major newspaper that gets all of the details about Section 230 wrong. And this one is particularly ridiculous because it's coming from a law professor. Professor Philip Hamburger wrote an op-ed for the WSJ that is so bad, so wrong, so clueless, that if I handed it in in one of his classes, I'd deserve a failing grade. The only thing that this piece gets is that, while I'd thought I'd seen every style of bad Section 230 takes, this one is creatively bad in new and more ridiculous ways than I'd seen before. It's titled: The Constitution Can Crack Section 230, which already seems like a weird way to kick off. Cracks... what?

There have been some very vocal calls for encryption backdoors by the heads of certain law enforcement agencies. And those making the most noise imply every other law enforcement agency that isn't clamoring for worse security supports the clamoring loudmouths demanding mandated backdoors.Maybe these other agencies do agree with "going dark" proselytizers like Chris Wray and Cy Vance. Maybe these agencies that never speak out are the silent majority. Then again, maybe they recognize the tradeoff for what it is and find other ways to obtain the evidence they need. But one thing is clear, cops are fans of encryption if it benefits them.Admissions made in a lawsuit brought by a fired Michigan State Police inspector show police officials have been using an encrypted messaging app with a self-destruct feature to engage in official business.

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There's an idea that pops up every so often among people who are upset about misinformation online but don't actually understand the realities of online communities and the dynamics of how it all works: it's the idea that "anonymity" is the root cause of many of the internet's problems. We've spent years debunking this, though it's been nearly a decade since there was a previous focus on this issue -- and it's now coming back.Unfortunately, part of the reason it's coming back is because a friend of Techdirt, Andy Kessler (who we've even published on Techdirt), wrote a piece for the Wall Street Journal calling for the end of anonymity online. I will note, that a large part of the article is correct: the part that accurately notes that Section 230 is not the problem and reforming or repealing it will do a lot more harm than good. That is exactly right.But then Andy goes off the rails and decides that getting rid of anonymity is the real solution.He's wrong, and we'll get into why in a moment. But, tragically, his piece has picked up some supporters in high places. Senator Ron Johnson, one of the key enablers of spreading disinformation in Congress (under his own name, of course), tweeted a link to the article, saying that perhaps we should end anonymity online:That says:

When Google Fiber launched back in 2010, it was heralded as a game changer for the broadband industry. Google Fiber, we were told, would revolutionize the industry by taking Silicon Valley money and disrupting the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; cities tripped over themselves offering all manner of perks to the company in the hopes of breaking free from the broadband duopoly logjam. And in markets where Google Fiber was deployed, prices dropped thanks to this added competition (fancy that!).The fun didn't last. In late 2016 Alphabet began getting cold feet about the high costs and slow return of the project, and effectively mothballed the entire thing -- without admitting that's what they were doing. The company blew through several CEOs in just a few months, laid off hundreds of employees, froze any real expansion, and cancelled countless installations for users who had been waiting years. And while Google made a lot of noise about how it would be shifting from fiber to wireless to possibly cut costs, those promises so far appear stuck in neutral as well.Now another Google broadband disruption play is meeting a similarly uninspiring end. Google Loon, Alphabet's attempt to use coordinated hot air balloons to provide supplemental broadband service to hard to reach areas, is being shuttered after nine years of development. While the company quieted many doubters who didn't think the project would work, it said it was never able to find a sustainable business model:

When Google Fiber launched back in 2010, it was heralded as a game changer for the broadband industry. Google Fiber, we were told, would revolutionize the industry by taking Silicon Valley money and disrupting the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; cities tripped over themselves offering all manner of perks to the company in the hopes of breaking free from the broadband duopoly logjam. And in markets where Google Fiber was deployed, prices dropped thanks to this added competition (fancy that!).The fun didn't last. In late 2016 Alphabet began getting cold feet about the high costs and slow return of the project, and effectively mothballed the entire thing -- without admitting that's what they were doing. The company blew through several CEOs in just a few months, laid off hundreds of employees, froze any real expansion, and cancelled countless installations for users who had been waiting years. And while Google made a lot of noise about how it would be shifting from fiber to wireless to possibly cut costs, those promises so far appear stuck in neutral as well.Now another Google broadband disruption play is meeting a similarly uninspiring end. Google Loon, Alphabet's attempt to use coordinated hot air balloons to provide supplemental broadband service to hard to reach areas, is being shuttered after nine years of development. While the company quieted many doubters who didn't think the project would work, it said it was never able to find a sustainable business model:

This week, both our winners on the insightful side come in response to Google threatening to pull out of Australia if the country goes ahead with demanding payments for linking to newspapers. Rekrul won first place with a question:

Sign up for the Public Domain Game Jam on itch.io »We're on the home stretch of our annual public domain game jam! If you plan to submit something but haven't signed up, make sure you do it before it's too late — and if you're just waiting to play the great games that come in, you can head on over now and check out some of the early bird submissions.Although only a handful of brave designers have decided to submit their entries before the deadline, we've already got a great-looking selection of games piling up for our judges to start playing on Monday. As expected, The Great Gatsby has been given a lot of attention: so far, we've got a platformer with beautiful pixel graphics, a stylish rhythm game, and not one but two tabletop roleplaying games, all based on the famous novel. But it's not all Gatsby stuff — there's also a competitive card game based on Smithsonian portraits, a game inspired by a 1925 jazz song, a game about Jewish surrealist painter Felix Nussbaum, and more.There are likely to be a lot more entries before the jam ends tomorrow night at midnight (that's still enough time to whip something up, by the way) so if you play to play them all, you might as well get a head start.A big thanks to all the designers who have already submitted their games, and all those with something in the works! Let's all start gaming like it's 1925.Sign up for the Public Domain Game Jam on itch.io »

Every once in a while, you come across some story about chatbots. These tend to range from fun stories about how someone makes a chatbot to make some interaction more efficient to some large company making a chatbot that turns out to be horrifically racist thanks to its interactions with the general public. Good times all around, in other words.But a recent patent granted to Microsoft is a whole different thing.

Summary: Manzoor Ahmed Pashteen is a human rights activist in Pakistan, calling attention to unfair treatment of the Pashtun ethnic group, of which he is a member. In 2018, days after he led a rally in support of the Pashtun people in front of the Mochi Gate in Lahore, his Twitter account was suspended.A number of human rights activists and other supporters of Pashteen quickly began to use Twitter to ask the company, and CEO Jack Dorsey, why Pashteen’s account was suspended.Decisions to be made by Twitter:

As the Iancu era at the U.S. Patent and Trademark Office comes to a close, one of the USPTO's initiatives has focused on promoting diversity in patenting. The newly established National Council on Expanding American Innovation, and the associated USPTO request for comments on a national strategy for expanding innovation, focus on having under-represented groups more involved in creating patentable inventions.That's a laudable goal. But we shouldn't be aiming just to have more under-represented groups receive patents. More patents doesn't necessarily mean more innovation, it just means more patents. Instead, we need to ensure that those groups are both provided the support to innovate and that their innovation is recognized.To do that, we have to change how we talk about innovation. In a recent article, Prof. Anjali Vats notes that the "stories that people tell about invention in the U.S. continue to focus on white men – the Benjamin Franklins, Thomas Edisons and Elon Musks – without affording women and people of color the same larger-than-life status." Often, those stories focus on lone individuals, not teams. Those failures lead to barriers to innovation by under-represented groups whose contributions may not fit that model.As one example, many—including USPTO Director Iancu—like to lionize Thomas Edison as the prototypical heroic inventor. They point to him as a role model. But Edison is a perfect example of the problems with the "heroic inventor" story. Edison employed a large staff who did much of the work of his inventions—without those "muckers", he'd have gotten much less done. And of course, Edison was neither the inventor of electric light nor the inventor of a practical light bulb. Alessandro Volta, the namesake of the word "voltage", generated light from electricity 80 years before Edison did. Humphrey Davy invented the electric arc light, which was in wide use in the 1800s, although it was impractical for home lighting.And while Edison devised a carbon filament bulb, his bulbs only burned for a few days before they burnt out. It was Lewis Latimer who devised a process for making a filament sufficiently useful to allow electric lighting to become widespread. Latimer also wrote the first technical book regarding electric lighting. He even drafted the drawings for Alexander Graham Bell's telephone patent—an application which beat Elisha Gray's competing application to the patent office by only a few hours.Latimer was African-American, the son of an enslaved person. His story isn't often mentioned alongside contemporaries like Edison or Bell when talking about American inventors, despite having been as or more responsible for the invention of electric light. Similar "hidden figures" include Katherine Johnson, a NASA engineer, and other women who worked as "computers" for the Army, for astronomical calculations, and to support the Works Progress Administration.While these stories have been popularized, how many more unrecognized innovators are out there whose contributions were never recognized because they didn't fit the model of "lone inventor creates idea and patents it"? How many more innovations could we have if that wasn't what was promoted as the primary model for innovation?Instead of focusing on promoting patenting activity and lionizing heroic inventor stories, let's try to promote innovation and recognize forms of innovation that don't fit neatly into the patent framework. Collaborative research, open-source and open-science models, and other such forms of innovation are at least as important as patents—let's give them at least as much priority.Originally posted to the Patent Progress blog

Sign up for the Public Domain Game Jam on itch.io »What are your plans this weekend? If you're like most of us living under pandemic lockdown, the answer is probably "not much" — but it could be "making a game using newly-public domain material!" All you have to do is sign up for Gaming Like It's 1925 and start exploring the wealth of works published in 1925 that have now run out of copyright protection and can serve as the basis for a great new analog or digital game. But don't delay — entries are due Sunday night at midnight!If you've never made a game before, that might sound like it's not enough time — but a two-day game jam is actually a great way to try your hand at game design. Entries can be as simple as a few rules for a roleplaying game typed into a text document, or you could make use of a tool like Twine or Story Synth that's easy to learn and provides everything you need to create a simple browser-playable game. The important thing isn't complexity or fancy assets — it's a clever idea and a vision for building something new based on old material, to show why a growing public domain benefits us all.Check out the game jam page for the full rules and some links to public domain works you could draw on, then join the jam and start working on your entry before midnight on Sunday, January 31st. Our judges will be playing the entries to select winners in six categories to receive some great Techdirt prizes (the winners of the 2020 jam are linked below, and you can read our judges' thoughts on them here):

Apparently every damn story has a content moderation angle these days. The still ongoing GameStonks! story keeps getting more and more fascinating in all sorts of ways. Yesterday, we noted as a side note, that Discord had shut down the r/WallStreetBets server that many of the subreddit users had used to communicate. Discord claimed -- somewhat unbelievably -- that it had done so at this very moment because of a long term "hate speech" problem on that server.But, then, a day later, Discord said it had re-enabled the server... but that the company itself was helping to moderate the server.

Although the main fight over the EU's Copyright Directive was lost back in March 2019, there are plenty of local battles underway. That's a consequence of the fact that an EU Directive has to be implemented by separate national laws in each of the region's 27 member states. Drawing up the local legislation is mostly straightforward, except for the controversial Article 17, which effectively brings in a requirement to filter all uploads. Trying to come up with a text that meets the contradictory obligations of the Directive is proving difficult. For example, although the law is supposed to stop unauthorized uploads, this must not be through "general monitoring", which is not permitted in the EU because of the e-Commerce Directive.As the various countries struggle to resolve these problems, it is no surprise that they are coming up with very different approaches. These are usefully summed up in a new post on the Kluwer Copyright blog. For example, France is implementing the Copyright Directive by decree, rather than via ordinary legislative procedures. As Techdirt reported, the French government is pushing through an extreme interpretation that ignores requirements for user protections. Germany, by contrast, is bringing in wide-ranging new law that contains a number of positive ideas:

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Steven Hill, the former policy director with the Center for Humane Technologies -- the non-profit that everyone seems to look to as some sort of knowledgeable source on "anti-Big Tech" talking points -- has come out with one of the most ridiculous op-eds regarding Section 230. And I say that as someone who seems to wade through a dozen or so terrible Section 230 op-eds every day. The title alone, should already make you nervous, but honestly this piece is so bad, so wrong, and so disconnected from reality, it completely undermines the Center for Humane Technology's credibility, even though this guy is no longer associated with them.The piece is titled: Biden should revoke Section 230 before we lose our democracy, which is just bizarre framing, but I'm open-minded enough to give any piece about Section 230 at least a chance to make its arguments.Of course, it starts off on the wrong foot since, you know, Biden literally cannot revoke Section 230. That's not how any of this works. You'd think that at least someone would point out that the President doesn't get to just revoke laws that Congress passed and were signed into law. That's just not how any of it works. But... maybe it's just a clueless editor at the Chicago Tribune and the article itself is better... Or maybe not.The 1st half of the article is basically one long "correlation / not causation" error. It talks about how we now have big internet companies and before we didn't -- and now we also have Trumpism, and before we didn't. Ergo, the theory goes, big tech is somehow responsible for Trumpism. There is not even any attempt to logically connect the two, it's just stated as if it's obvious:

A handful of municipalities in Georgia have filed a lawsuit (pdf) against Hulu, Netflix, and other streaming providers in a ham-fisted bid to saddle customers with cable franchise fees. Such franchise fees were common in the cable TV era. In large part because such cable providers had a physical presence in local municipalities. They utilized public rights of way, hung their coaxial cable on city-owned utility poles, often had local offices or broadcast hubs, and in some instances provided public access television.As a result, traditional cable companies struck local franchise agreements requiring they pay the local community for the right to access public property and resources. Since streaming providers (usually) have no physical presence in the states they're doing business, those fees didn't transfer over to the streaming industry. Enter these Georgia towns, which filed a lawsuit not only claiming that traditional cable companies haven't been paying the money they owe, but that streaming providers like Hulu and Netflix should also be paying up: