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As a bit of a reminder/disclaimer, Charles Harder was the main lawyer in the lawsuit against us, in which the plaintiff said directly that his intent was that we needed to be shut down. Of course, Harder's bigger claim to fame was his success in shutting down Gawker, thanks to a concerted effort by a billionaire who didn't like Gawker's reporting.Harder has, in fact, relished his reputation for threatening and suing news organizations that publish information his clients dislike. Hell, he just published a whole book in which the title itself champions the fact that he killed off Gawker. Over the years, we've seen Harder threaten and/or sue plenty of media organizations over completely ridiculous things. He sued the New York Times over an opinion piece on behalf of Donald Trump's campaign (and lost), he helped a cryptocurrency company sue Forbes for an article about how the company was structured, he tried (and failed) to get multiple books about Donald Trump blocked from publication -- including suing over the book by niece Mary Trump and threatening a suit over Steve Bannon's book. He also threatened the New York Times over its big Harvey Weinstein expose.In fact, nearly every aspect of Harder's claim to fame is built around his ability to threaten or sue media organizations into silence.And the impact of his lawsuits has been very real. There have been stories about the Gawker Effect creating a real chill on investigative reporting, especially into malfeasance. And I've certainly spoken about the chilling effects of the lawsuit that was filed against me.Given all of that, it's incredibly rich for Harder to now publish an op-ed decrying "cancel culture." And, yet, that's exactly what he's done. In a piece that originally appeared on InsideSources and is now popping up in actual newspaper op-eds, like the Jacksoville Journal-Courier, Harder argues that we need to stop trying to cancel people for speech. The whole thing would make me laugh if it didn't make me actually feel ill.

Over the last decade Russia has accelerated the government's quest to censor the internet. That was most conspicuous with the passage of a 2016 surveillance bill that not only mandated encryption backdoors, but effectively banned VPN providers from operating in the country unless they were willing to spy and censor at Putin's behest. Many VPN providers weren't keen on that, so they simply stopped doing business in the country.More recently, Russia has been engaged in a bit of a hissy fit over Twitter's unwillingness to censor things the Russian government doesn't like. And while Twitter has been trying to filter more illegal behavior and pornography at the government's behest, the company hasn't been censoring broader content at the rate Putin and pals prefer. So as punishment, Russia has taken to throttling user access to Twitter to a rather 1997-esque 128 kbps, or about the speed of an old IDSN line. Granted the ham-fisted gamesmanship Russia has been engaged in has already resulted in some notable collateral damage:

It's no secret that TorrentFreak, a mainstay news site covering copyright and filesharing issues, gets more than its fair share of errant DMCA takedowns and other wayward scrutiny. This is almost certainly a function of the site's chosen name, though the sheer volume of mistaken targeting of the site also serves as a useful beacon for just how bad policing copyright has become. If you can't get past a news site having the word "torrent" in its name, then we should probably all admit we're operating at a very silly level of IP enforcement.And yet it keeps happening. Most recently, TorrentFreak reported on a request made to Google to delist a post the site did on how popular The Mandalorian was with pirates.

Summary: NASA's historic landing of a mobile rover on the surface of Mars created many newsworthy moments. Unfortunately, it also generated some embarrassing takedowns of NASA's own footage by YouTube's copyright flagging system, ContentID.NASA uploaded its own footage of the landing -- footage that was public domain given that it was a work created by the U.S. government. US copyright law says that any work created by the US government cannot be granted a copyright. It is, instead, in the public domain, and can be used by anyone without restriction. Unfortunately, the use of this public domain footage in news broadcasts created by Scripps (owner of multiple TV stations as well as a significant ABC stakeholder) put a chain of events in motion that ultimately saw NASA's footage taken down by YouTube.The problem was YouTube's ContentID. Once Scripps uploaded its footage, ContentID bots began crawling the site seeking matches. ContentID is structured in such a way that it believes that if content is uploaded by a private entity, that entity has a legitimate copyright over it -- even if the content is in the public domain, shareable freely by all. Shortly thereafter, NASA footage began disappearing while Scripps' broadcasts utilizing NASA footage stayed live.This unfortunate outcome is common enough NASA reps are used to having to contact YouTube to get their own public domain uploads restored.Decisions to be made by YouTube:

It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."

The future Digital Services Act (DSA), dealing with intermediary liability in the EU, is likely to be one of the region's most important new laws for the online world. At the moment, the DSA exists only as a proposal from the European Commission. In due course, the European Parliament and the EU's Member States will come up with their own texts, and the three versions will ultimately be reconciled to produce legislation that will apply across the whole of the EU. As Techdirt reported last month, the Commission's ideas are something of a mess, and the hope has to be that the text will improve as the various arms of the EU start to work on it over the coming months.The French government, however, is unwilling to wait before it can start imposing intermediary liability on the US Internet giants it seems to hate so much. It has decided to bring in key parts of the DSA immediately -- even though it doesn't formally exist -- using what it calls a "pretranscription" of the proposed EU law. Next Inpact has the details (original in French), but what matters most is the way the "pretranscription" of the DSA clashes with an important existing EU law, the e-Commerce Directive. The European Commission explains:

An impressive trove of public records obtained by BuzzFeed shows just how pervasive facial recognition tech is. Law enforcement agencies are embracing the tech, often with a minimum of accountability or oversight. That's how toxic tech purveyors like Clearview -- whose software relies on a multi-billion image database scraped from the web -- get their foot in the door to secure government contracts.Despite being used for years, facial recognition tech has yet to prove it's capable of recognizing the right faces more often than the wrong ones. The accuracy gets even worse when it's deployed to recognize faces of women and minorities -- and given law enforcement's history of disproportionate enforcement -- it will be minorities harmed by the inaccurate tech more often than not.What BuzzFeed has done with these Clearview records is compile a searchable database that allows readers to see if their local agencies have tried out the tech. Clearview's tech has yet to be subjected to outside review and its method of obtaining images -- scraping them from public posts on the web -- leaves a lot to be desired in terms of accuracy. (Unfortunately, as the EFF's Dave Maas points out, this doesn't mean BuzzFeed has made the dataset public -- only its interpretation of the data. But we'll take what we can get.)The upshot? Lots and lots of experimentation. The downside? Very little oversight or explicit permission. According to the information BuzzFeed obtained, more than 335 US law enforcement agencies have at least tried out Clearview's facial recognition AI, and many of those searches had nothing to do with investigations.Several of the responding agencies appear to be paying little attention to the actions of their employees:

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What is it with state legislators not having anyone around them who can explain to them how Section 230 works, leading them to push incredibly stupid state bills? We've written about both Republicans and Democrats pushing bills to modify Section 230, ignoring how 230 likely pre-empts those attempts (if the 1st Amendment doesn't already).Many of these bills misunderstand Section 230, the 1st Amendment, or how content moderation works. Though, many of them misunderstand the law in fairly predictable ways. Last week three state Senators in North Carolina -- Senators Ted Alexander, Kevin Corbin, and Todd Johnson -- surprised me. Oh no, it's not that they were some state elected officials who actually bothered to understand Section 230, because trust me, they did not. But they surprised me in that they misread Section 230 in a novel and completely ridiculous way that I'd not seen before. It's so bad that it causes me to question the great state of North Carolina: how do you elect people this bad?The bill has all the trappings of many of the dumb Republican state 230 bills that think (incorrectly) that they can compel websites to host speech (something that is not allowed under the 1st Amendment). But this one takes it up a level. The bill is officially entitled: An Act to Enact the Stop Social Media Censorship Act to Prohibit Certain Social Media Websites from Censoring Certain Political or Religious Speech. That is already quite a mouthful. First it's act to enable another act, which says that it will stop to prohibit? I mean, c'mon guys.But here's where things get just... wrong. The authors of the bill claim (wildly incorrectly) that Section 230 has a "state law exemption" that allows them to "cure abuses of Section 230." Here's what the bill says:

Economists repeatedly warned that the biggest downside of the $26 billion Sprint T-Mobile merger was the fact that the deal would dramatically reduce overall competition in the U.S. wireless industry. Data from around the globe clearly shows that the elimination of one of just four major competitors sooner or later results in layoffs and higher prices due to less competition. It's not debatable. Given U.S. consumers already pay some of the highest prices for mobile data in the developed world, most objective experts recommended that the deal be blocked.It wasn't. Instead, the Trump FCC rubber stamped the deal before even seeing impact studies. And the Trump DOJ not only ignored the recommendations of its staff, but former Trump DOJ "antitrust" boss Makan Delrahim personally helped guide the deal's approval process via personal phone and email accounts. Both agencies, the vocal chorus of telecom-linked industry allies, and many media outlets all behaved as if all of this was perfectly legitimate and not grotesquely corrupt.At the heart of the DOJ's approval was a flimsy proposal that involved giving Dish Network some T-Mobile spectrum in the hopes that, over seven years, they'd be able to build out a replacement fourth carrier. As we noted at the time, there was very little chance this plan was ever going to work. In part because the remaining three wireless carriers (T-Mobile, Verizon, AT&T) have every incentive to fight against a major fourth wireless competitor emerging from this mess. But also because Dish has a long history of spectrum hoarding and empty promises in wireless (just ask T-Mobile circa 2019 or so).And there have been several hints that we're already stumbling along this doomed trajectory. Including the 6,000 layoffs (so far) that the merging companies promised wouldn't happen if regulators approved the deal.Last week, for example, Dish Network complained to the FCC that T-Mobile wasn't being particularly cooperative on a number of fronts, including their supposed spectrum and network sharing arrangements. To help build this "new" fourth wireless network, T-Mobile gave prepaid mobile brand Boost Mobile to Dish. But Dish is annoyed that the Sprint CDMA network, which is currently in use by many of these customers, is being shut down prematurely, making it harder for Dish to get an operational foothold:

Back in February of 2020, we wrote about several odd attempts by Activision to use the DMCA takedown process to try to bury leaks of content in its Call of Duty game franchise. It all started with the company attempting to first take down Reddit posts that showed leaked cover art for Call of Duty: Warzone, before Activision then attempted to have Reddit unmask the poster of the image in an attempt to track down where the leak came from. While Activision certainly isn't the first company that has attempted to bury leaks using DMCA notices, it was a fairly high profile attempt, which, of course, just meant that the Streisand Effect took over and suddenly tons of people were seeing the image in media outlets reporting on the matter, such as at Techdirt.One would think the lesson learned from that episode would be that trying to unboil an egg like this through the DMCA process was futile. Instead, it seems that Activision thought the lesson was that it should go after media outlets. Recently, content for an upcoming map addition to Warzone leaked and VideoGamesChronicle (VGC) reported on it.

Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he's a lawyer in every jurisdiction he hasn't been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.Own the libs, he may. But federal courts refused to be owned. And Klayman -- who I will freely admit was at least willing to mount a solid challenge to NSA surveillance -- will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman's litigational escapades.So, how owned are the libs? Let's ask the court [PDF]. (via Reason)

We've got another podcast cross-post for you this week! Mike recently joined the Cato Institute Daily Podcast to discuss the PACT Act — the more "serious" proposal for Section 230 reform that is still riddled with problems that will do damage to the entire internet. Listen to the full conversation with Mike and Cato's Will Duffield on this week's episode.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.

What is it with the NY Times publishing incredibly ridiculously wrong and confused articles and op-eds about Section 230? It's gotten to the point that you have to think that they're doing it on purpose. I've covered the NY Times getting 230 wrong (often in totally embarrassing ways) over and over and over and over and over again. And those are just examples from the past two years.You'd think that maybe -- just maybe -- someone at the NY Times would now take the time to more carefully review any of their pieces on Section 230. But, apparently that's not in the cards for the NY Times. The latest entrant is Timothy Egan, a long term journalist and NY Times opinion writer, who doesn't seem to have any actual knowledge or experience regarding this topic. But apparently at the NY Times that makes you qualified to make grand pronouncements based on your feelings. The title of Egan's piece suggests that maybe it's going to present an interesting argument regarding free speech: I Used to Think the Remedy for Bad Speech Was More Speech. Not Anymore. I mostly disagree with this line, but there have been some interesting, and often thought-provoking arguments regarding this over the last few years.But Egan's is a weirdly facile argument that suggests he's never had a chance to explore any of the deeper issues here, nor engage with any of the widespread scholarship on the topic. It presents the argument in a jumbled confusing mess... and then blames Section 230. All of it is wrong. He tries to lump in gun violence into this argument in a way that... I don't understand at all:

I thought we had put this sort of idiocy behind us, but I see it's back again. In 2011, some German politicians suggested the country's youths be required to obtain some sort of internet driver's license following a party that got out of hand after a private Facebook invite was accidentally made public. Somehow, obtaining an ID to use social media services would prevent this from happening in the future, but officials were extremely light on details.Five years later, our own DHS came up with pretty much the same idea. The DHS's attaché to the European Union suggested the online presence of terrorists and child pornographers demanded an across-the-board reduction in privacy for everyone. The only difference here was the analogy: rather than a driver's license to use the internet, all internet "travelers" would have to display some form of internet "license plate," making them readily identifiable to the government.Two years later the idea resurfaced again, with the UK security minister pretty much repeating the DHS's suggestion from 2016: an internet driver's license that would allow law enforcement and other government agencies to readily identify anyone online, like predators grooming children in chat rooms or perpetrators of harassment.But that was the last decade. Surely, we've seen the folly of demanding ID to use the internet, what with the serious complications it can cause for plenty of people who aren't engaged in criminal activity. Anonymity protects more than just the worst internet denizens. If this idea has had a decade to stick and still hasn't, perhaps it's time to finally let it go… oh never mind. Just last month, Senator John Kennedy announced his plan to introduce a online anonymity ban. If you need a list of reasons why this is a bad idea, Mike Masnick helpfully included a very long one in this post.Less than two months later, the Australian government is pitching its own anonymity ban.

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Last week we noted that there was some fairly mixed up pressure mounting on UK politicians to block encryption from some confused charities which (falsely) thought that ending encryption would somehow protect children. We also noted that many of the politicians pushing to end encryption... were using encrypted messaging themselves in an effort to dodge public records requests.And now more news is coming that the UK government is getting serious about ending encryption. UK Home Secretary Priti Patel -- who has been pushing to end encryption for a while now -- seems to be using the misguided statement from the charity mentioned above, the National Society for the Prevention of Cruelty to Children (NSPCC), as an excuse to bring about the end of true end-to-end encryption in the UK:

For a long time now, we've explained how broadband usage caps are bullshit. They serve no technical purpose on the network, and aren't genuinely helpful in managing congestion. Their real role is several fold: one, they let ISPs charge US consumers (who already pay some of the highest prices in the developed world) even higher rates; two, they let ISPs falsely advertise a lower price than they actually charge; and three, they can be abused anticompetitively (exempting an ISP's own streaming content from caps while still penalizing a competitor like Netflix).Despite this, regulators historically haven't much cared, even during a pandemic showcasing how affordable broadband is essential for survival. And ISPs keep slowly expanding the adoption of such caps across the states in the hopes nobody will notice (think of the boiling frog metaphor with you as the frog).That includes Colorado-based Wide Open West (WOW), which recently announced it would be implementing new usage caps and overage fees for its subscribers starting June 1, 2021. Utterly tone deaf to the fact there's a pandemic and economic crisis going on, the ISP attempts to soften the blow by pretending that costly, confusing broadband caps and overage fees are akin to delicious pizza:

The DEA's love for taking cash from travelers has gotten it sued. Again. In August 2019, DEA agents -- working with TSA agents -- took more than $80,000 from Rebecca Brown, who was carrying her father's (Terry Rolin) savings through an airport on her way home to put it in a bank account he could use to pay for dental work and truck repairs.Working under the assumption that the mere existence of cash is illegal, the DEA and TSA lifted the cash from Rebecca Brown, claiming it was "suspicious." A lawsuit followed in January 2020. Shortly after the filing of the lawsuit, the DEA agreed to return the $82,000 it stole from the retiree and his daughter.The lawsuit, however, continues. The Institute for Justice is representing multiple plaintiffs who've had their cash taken by the TSA and DEA. This return of funds helps Rebecca and her father, but it doesn't stop the DEA and TSA from continuing to declare nearly any amount of cash "suspicious" before taking it from travelers.Earlier this year, the magistrate judge [PDF] taking the first crack at the case recommended the agencies not be allowed to exit the lawsuit. The government argued the plaintiffs had no standing because traveling with cash is a personal choice -- one that can be made at any time to give rise to claims of possible future injury. Yes, it's a stupid argument. And here it is:

If it seems like the topic of preserving antiquated video games as art keeps coming up, that's because it's very much starting to become a popular topic in the gaming industry and among the gaming public. The headwinds facing the proper preservation of this ever-growing subsect of culture are fairly clear. The very tools that have been used by fans to keep these older games alive and playable have too often been viewed as a threat to some gaming companies. As with all things in life, copyright is also getting in the way, as are some industry groups coming out against vile threats like museums and curation groups looking to keep old games alive for the public. Even preserving old game manuals is a prospect that only survives because of fair use.One recent suggestion we discussed was to make it part of the the game development culture to publish the source code for any PC game publicly. If this sounds like a bonkers idea that would risk a game developer all of its income, well, Doom did this, so no you're wrong. But, as we also discussed recently when Sony officially announced it was ceasing support of the PlayStation Store for PSP, Vita, and PS3 owners, this suggested cure does zero for console games.Well, I can't say for sure that whoever is crafting PR and messaging for Microsoft's Xbox is a Techdirt reader, but you sure might think so if you see how they're crafting the messaging around their big backwards-compatibility push.

A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:

A little over a week ago, we wrote about how Senator Elizabeth Warren clearly went over the line in threatening to punish Amazon for its speech through the use of antitrust laws. As we noted (pretty clearly, though many ignored it) at the time, there may be plenty of other reasons to use antitrust laws against Amazon, but no government official should ever even jokingly suggest that he or she would use the power of the government (via antitrust) to punish an entity for speech.In response, many Warren supporters got incredibly mad at me, insisting that because (1) Amazon is big and (2) Warren has supported this position before, then it's perfectly fine for her to have said what she did. It was not.On Friday, we got to see the same thing from the other side of the aisle. After Major League Baseball announced that it would move the All-Star Game out of Atlanta in protest of Georgia's new voting law, Rep. Jeff Duncan from South Carolina, stated out loud on Twitter that he intended to punish the company by drafting legislation to remove MLB's somewhat infamous antitrust exemption.As we said with Warren, there may be very good reasons to remove MLB's antitrust exemption. In fact, I'd argue there are compelling reasons to do so. But, announcing plans to do so as punishment for MLB's clear protest over Georgia's voting law is pretty clearly an affront to the 1st Amendment. Rep. Duncan is stating directly that he wants to punish a company for protesting a law that he agrees with. This creates a real chilling effect. It may not chill MLB directly, but it likely would chill many other companies from speaking out for fear of retaliation from Duncan and his colleagues in Congress.It was wrong when Senator Warren did it, and it's just as wrong with Rep. Duncan does it. It's also wrong for Senators Ted Cruz and Mike Lee to do it, jumping on Duncan's new bandwagon.Punishing companies using antitrust laws (even if there are good underlying reasons to explore those antitrust issues) for their expression should never be supported, cheered on, or allowed. Just as we called on Warren to take back what she said, we now are saying Duncan, too, should take back his direct threat of punishment for speech. Unfortunately, since everything in politics these days seems to be it's okay to punish "enemies" and to support "friends" this will never happen. But it sure would be nice if we had politicians with principles who knew that it's wrong to punish anyone for speech, even if you disagree with their speech (and agree that the "punishment" is warranted for other reasons).

"Training and expertise." Let's talk about it.This boilerplate phrase shows up in search warrants and other law enforcement paperwork -- something used a preemptive defense for whatever rights violations might occur subsequent to these sworn statements. Using "training and expertise" as the foundation for a defense against lawsuits and accusations of bias is handy: it shows the officer was being "reasonable" and only engaged in a roadside fishing expedition or hurled a flashbang grenade into a toddler's crib because all of this "training" led officers to believe criminals often engage in [Action X], thus justifying law enforcement [Action Y].But this blanket assertion is as useless and full of shit as this Tenth Circuit Appeals Court decision granting qualified immunity to officers who detained someone for recording them while they assaulted an arrestee. (h/t Brad Heath)Remember, the "training" is important. When raising a qualified immunity defense, it's always helpful to point out you couldn't possibly have known better because you were "trained" to react to certain stimuli with certain actions. The "training" (along with the years of "expertise") sets the stage. A cop is only as good as their training. And if the training left something crucial out, how is a cop to know the rights violations they engaged in were rights violations? It's not like we expect cops to be legal experts, despite the fact their job is literally enforcing the law.So, let's get to the legal contortions [PDF] the Tenth Circuit deploys to excuse cops who should not have been allowed to claim they didn't know better when they infringed on a citizen's First Amendment rights.Here's how it starts:

Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He's done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he's done it again.Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination -- including blocking individuals for speech they disagree with.A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a "public forum" and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official's statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.And, basically, the argument has stayed with very confused and clueless people... until today, when Justice Thomas decided to put it front and center. It's hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it's coming from a Supreme Court Justice is just crazy. Let's break this down bit by bit.

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It's taken over a decade, but the Supreme Court has finally said that Google's copying of the Sun Java API for Android was clearly fair use in a 6-2 ruling (Barrett did not take part since she was not on the Court when the case was heard). The background of this case is actually kind of important to understanding what just happened, so here's a quick(ish) recap.As you'll probably know, this case began in 2010 when Oracle, which had just taken over Sun, sued Google for patent infringement. The patent parts were quickly tossed out and what remained was what referred to as a "sideshow" to the main event: a question about whether APIs could be covered by copyright. Pretty much all historical evidence, including an important Supreme Court ruling from the 1990s, said no, interfaces are not covered by copyright.Oracle and friends then spent the next decade deliberately gaslighting basically everyone who doesn't understand what an API is, and insisting that it's the same as executable code. The district court, under Judge William Alsup, who somewhat famously taught himself Java to better understand the issues in the case (he already knew how to code and was a hobbyist programmer), correctly found that APIs are not subject to copyright as they represent a "system or method of operation" which is explicitly not covered by copyright, as per Section 102(b) of the Copyright Act.Rather than go to the 9th Circuit (as it should have) the case went to the Federal Circuit, which hears all patent appeals. That was because the case began as a patent case, even though it no longer was. CAFC judges are somewhat infamous for never finding a patent issue they couldn't screw up, and decided to extend that to copyright. In the ruling overturning the lower court, they made it clear that because they were code illiterate they could not understand the difference between executing code and an API, even though it's like the difference between a novel and a dictionary.The case went back to the district court, where the jury this time sided with Google, this time saying that the use of the code was covered under fair use. That whole trial was a little weird, because reading between the lines, you could see that nearly all the arguments for why copying an API was fair use were really about why an API shouldn't be covered by copyright at all (as per Alsup's original ruling) and then squeezing that square peg into the round hole of fair use to make it work. Once again, however, CAFC got flummoxed by an API looking like code and overturned -- which is quite crazy because CAFC had, in its first ruling, insisted that the jury should decide this issue (as a matter of fact) and then when the jury said "fair use" CAFC suddenly decided that it was a matter of law that it could overrule.Finally, we get to the Supreme Court. From oral arguments, it wasn't clear where the court was leaning -- with some good questions and some crazy questions. But with today's ruling, it's clear that the smarter questioners won out. The majority opinion was written by Justice Breyer, who has always been the best Justice on copyright issues, and had the support of Justices Roberts, Kagan, Gorsuch, Kavanaugh, and Sotomayor.Breyer starts out by noting (thankfully, unlike the CAFC judges) that it's important to understand just what an API actually is.

So if you've read Techdirt for any amount of time, you should be pretty well clued in to the fact that US telecom is a heavily monopolized, feebly regulated mess. Regional cable giants like Comcast and Charter absolutely dominate the market, resulting in 83 million Americans being stuck under a monopoly (see this ILSR report). The result of regional monopolization and captured, feckless regulators is obvious and has been for a good thirty years: high prices, comically bad customer service, spotty coverage, and slow speeds. It's not really a debate, though some telecom-allied policy folks like to pretend otherwise.Yet every time broadband and the digital divide is trending in headlines, the cause of US broadband dysfunction simply isn't mentioned. For example, as the Biden administration released its new broadband plan this week, numerous news outlets once again dipped their toe into trying to cover the digital divide. And time after time after time, news outlets explain that the digital divide exists, but they somehow never inform readers why. When the subject is covered it's just some thing that appeared one day, like Godzilla out of the ocean.Over at USA Today, for example, the problem was framed like this:

This week, our first place winner on the insightful side is David with a response to Georgia's attempts to punish Delta for the CEO's statement about voting laws:

Five Years AgoThis week in 2016, while forensic experts were exploring the DOJ's recently announced ability to get into Sayed Farook's iPhone, the DOJ was saying that it only applies to that specific model and sticking by its request for Apple to help it with other devices — all while refusing to tell Apple how it did it. Meanwhile, the Copyright Office was seeking comments on the DMCA notice and takedown provisions, and given the huge problems and spate of automated takedowns, we obviously had some thoughts to submit.Ten Years AgoThis week in 2011, we were debunking the claim that bad things happen when works fall into the public domain, writing about how greater IP enforcement doesn't work, and pointing out how sometimes it's best to just let people copy. Another judge rejected the idea that the DMCA requires a proactive approach from service providers, while it turned out that a judge who gave approval to the lumping together of multiple unrelated copyright claims was a former RIAA lobbyist. This was also the week that we saw a very worrying ruling on fair use (which would later be overturned in an important appeals court decision that has recently become very relevant again) when a judge said Richard Prince's appropriation art is infringing.Fifteen Years AgoThis week in 2006, a new German law was set to give casual file sharers significant jailtime, while TorrentSpy was fighting the MPAA's attempts to reinterpret the Supreme Court's opinions on file sharing. The DRM makers were getting ever more elaborate even as more and more people were pointing out that copy protection doesn't work. YouTube was seeking to shake its reputation as a piracy haven with legit partnerships, and a ten-minute video limit that is hard to imagine today. This was also the week that Apple's lawyers, in their trademark fight with the record company of the same name, brought out the now-famous "moron in a hurry" test.

A few days ago, we discussed the problem of video game preservation as a matter of art when developers, publishers, or platforms shut down certain services. The point of the post was fairly wide-reaching, with the focus being on the idea that game developers in the PC space should embrace the habit of releasing their source codes for games and let the gamer ecosystem take over. While that's an idea I find extremely interesting, it doesn't really apply to the console gaming space. And it was rumors of the shutdown of certain Sony PlayStation stores that kickstarted the whole conversation.Well, that rumored shutdown is now reality. And it's roughly half as bad for the purposes of game preservation as was expected.

Summary: Twitter allows parody accounts to remain live (often over the protests of those parodied), provided they follow a narrow set of rules -- rules apparently intended to make sure everyone's in on the joke.Here's everything Twitter users agree to do when creating a parody account:

Punishing people or companies for their speech is never something any politician should ever be engaged in. It's why we called out Elizabeth Warren recently. And now we'll call out Republican legislators in Georgia, who tried (but failed) to punish Delta in direct response to its CEO's comments. The details honestly don't matter here, because all that matters is "politicians looking to punish speech" but we'll give the basic background.As you may have heard in the news, a week ago, Georgia passed a big new voting bill that has been quite controversial. In short, like many recent bills, in the name of "election integrity" the law is likely to make it more difficult for some people to vote. Once again, there remains vanishingly little evidence of voter fraud in elections, and bills like this one generally appear to be a fig leaf for trying to disenfranchise voters who are more likely to vote for Democrats.Initially Delta put out a statement that applauded some of the provisions in the bill (the parts that did expand some early and absentee voting). But praising those aspects of the bill was seen as approving the entire bill, which angered lots of people -- leading to calls to boycott Delta. It didn't then take long for Delta's CEO to come out with a surprisingly harsh condemnation of the law, which seemed like a pretty sharp turnaround from the original statement praising pieces of the law.In response to that, Republican lawmakers in Georgia set out to take away certain tax breaks for Delta. Now, there may be perfectly good reasons to remove such tax breaks, but doing so directly in response to the CEO's statement, is not how any of this is supposed to work. But, the legislators in question seemed so sure that this was the right culture warrior stance to take that they didn't even try to hide the reasoning behind some made up argument. They just out and out admitted that this was punishment over speech:

Last month, the DOJ announced it had secured indictments against an encrypted device maker, claiming the company had violated all sorts of laws by selling these to criminals. This closely mirrored the DOJ's earlier prosecution of Phantom Secure, another encrypted device maker it accused of aiding and abetting criminal enterprises.Sky Global was the most recent target. Both prosecutions seem a bit performative though. The FBI -- which participated in both investigations -- has been making the case for years that encryption benefits criminals far more than it benefits non-criminals. The FBI isn't much for subtlety. It doesn't hint that it believes secure communications are something only criminals need. It comes right out and says that in Congressional testimony and any place that allows its directors to speak.But devices with more secure options aren't just the playthings of criminals. The desire for more secure communications dates back to the days of burner phones. Sure, criminals loved burners. But so did journalists and their sources, as well as dissidents, government critics, and anyone who desired to keep their communications free of malicious interference and interception.Encryption is the target. The FBI has made this clear. Anyone paying attention can see this. The ongoing prosecution of Sky Global -- a company offering encrypted devices and an encrypted messaging service it rolled itself -- has inadvertently exposed how little encryption actually matters when it comes to criminal investigations.Sky Global's takedown involved a phishing attack that resulted in compromised devices and exposed communications. The takedown of EncroChat -- another network/service provider accused of hooking up criminals with encrypted devices/communications -- made encryption seem like no big deal.The investigation -- which spanned several countries -- culminated in more than 1,000 arrests. The communications platform utilized the Signal protocol, which is freely available to be utilized by anyone with a desire for more secure communications. At the time the arrests took place, officials made it clear Signal's protocol had not been compromised. From Joseph Cox's report on EncroChat's takedown:

Lawyer Steven Biss has built up quite a reputation for himself over the past few years, especially in filing highly questionable, obviously bogus SLAPP suits on behalf of Rep. Devin Nunes and a rotating cast of characters in and around Trumpist orbits. For example, he just recently was the lawyer for Jack Flynn, the brother of disgraced (briefly) former National Security Advisor Michael Flynn, in suing CNN for pointing out that the Flynns had repeated some standard QAnon conspiracy nonsense in a video recorded at a family barbecue, and posted online with some QAnon hashtags. Jack was in the video which was then featured in a CNN story about QAnon. The crux of the defamation claim is this:

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Sure, we all love secure communications. And government officials shouldn't be afraid of using encrypted communication options. But they need to remember their obligations to the public. Security can often be converted to obscurity. And yet, government officials migrate towards encrypted messaging options, but not for security reasons. Instead, they choose the same options they decry in public. Encryption is for criminals they claim, even as they avail themselves of the "criminal" option to "protect" themselves from the public they serve.Lawmakers continue to demand "lawful access" to encrypted/fleeting communications. And they do this while utilizing the same services. Whatever it takes to keep the general public from viewing the sausage-making process. It's not just a US thing. Our counterparts in the UK are just as hypocritical, as the BBC reports.

Some 750 US communities have built some kind of locally owned and operated broadband network, usually in response to broadband market failure. Data has repeatedly shown that these networks usually not only offer faster, better service than the private sector, they frequently prompt apathetic local monopolies to actually try harder. That's not to say community broadband is a panacea for all US markets, but it's certainly an important part of the puzzle that is fixing the US' mediocre and expensive broadband access problem.Yet during the Trump era, community broadband was treated like some kind of infectious disease.FCC Commissioners could usually be found falsely trying to claim such networks posed a dire threat to free speech. More recently, the GOP tried to pass a bill that would have banned such networks entirely (during a pandemic no less). While this opposition is usually framed as a good faith concern about taxpayers (a concern that never manifests when an incumbent like AT&T gets billions in exchange for absolutely nothing), the reality is such folks really just don't like anything that interferes with the God-given revenues of deep-pocketed campaign contributors like Comcast, AT&T, and Verizon.Enter the Biden administration's new broadband plan, which pledges to expand "future proof" (read: fiber) broadband access to the entirety of America within the next eight years. While notably vague on anything detailing how they'll actually accomplish or pay for this, the outline indicates the proposal, part of a much broader $2 trillion infrastructure initiative, specifically embraces community broadband as a cornerstone of these efforts:

Bail can no longer be used to keep still-presumed-innocent people locked up in California. In a unanimous decision [PDF], the state's Supreme Court has declared keeping people locked up just because they can't afford bail is unconstitutional.The decision doesn't entirely eliminate bail -- it can still be used in some cases -- but it cannot be the default operating mode for handling arrestees. The court starts the opinion by pointing out there's a big gap between principle and practice when it comes to bail. The state has a compelling interest to use bail to insure trial appearances and provide public safety. That point isn't being argued.What's actually happening is the state is regularly depriving arrestees of their freedom by demanding cash bail in nearly every case, whether or not it addresses these compelling interests.

Sega has something of a flip-floppy history when it comes to how restrictive the company chooses to be with intellectual property generally and DMCA takedowns more specifically. The company notably went DMCA happy back in 2012, for instance, over a bunch of fan videos on YouTube for Shining Force, all because it had a planned release for a PSP version of the title. In 2013, the company actually half-apologized for doing so, promising to be more lenient with what it allows, though there were caveats expressed as well. Fast forward to 2016 and Sega quite gleefully poked some fun at its rival, Nintendo, for its DMCA blitzes, instead encouraging fans to make and create cool and fun stuff with some of its IP.Well, here we are in 2021, and Sega once again is in the news, in this case for a DMCA takedown sent to the SteamDB site.

Qualified immunity is pure judicial cancer. This fact cannot be ignored. What began as a limited defense for decisions made in the heat of the moment has become the de facto response to civil rights lawsuits. The Supreme Court -- which conjured this new Section 1983 ejection seat out of thin air -- has only made it worse over the past few decades.Qualified immunity is more bulletproof than the Kevlar vests worn by those who summon its protections most frequently. Efforts have been made to dial this back, but so far, we've yet to see them come to fruition.Attempts to remove qualified immunity have faced massive amounts of opposition from some of the most powerful entities in the United States: law enforcement agencies and their unions. Despite this, efforts continue to be made to rein in something that has pretty much become a permission slip for rights violations.The good news (via MagentaRocks) is that one ongoing effort to end immunity targets the largest law enforcement agency in the nation: the New York City Police Department. This package of reforms offers up some other useful changes, like requiring NYPD officers to live in the city and mandating quarterly reports on vehicle stops, broken down by ethnicity, race, and age. It also would strip the police commissioner of final say on cases recommended for discipline by the Civilian Complaint Review Board. This would prevent CCRB recommendations from being overturned by the NYPD, something that has happened with alarming frequency in the past.But here's the big news: the end of qualified immunity for NYPD officers.

You might recall that pre-merger T-Mobile used to make fun of the wireless sector's repeated failures in the TV space, such as Verizon's massive Go90 face plant. Of course, at the same time, T-Mobile was busy planning its own streaming TV efforts. Launched just last fall, T-Mobile's TVision TV service was supposed to truly disrupt the stodgy TV sector (something already happening at the hands of countless platforms). T-Mobile CEO Mike Sievert explained it like this last October:

The modern smartphone is a technological wonder, cramming into its compact form factor multiple functions -- phone, pager, computer, camera, calculator, diary, multimedia player, radio, TV, clock, maps, GPS, voice recorder, eBook reader, gaming device, WiFi hotspot, flashlight etc. etc. -- that required over a dozen separate devices a couple of decades ago. No wonder, then, that most people want one, and would like to buy a model that offers all these features. However, in many parts of the world, the price of a good smartphone represents a big chunk of their annual wages. The obvious solution is to take out a loan, but that typically requires a credit rating, and many people in those countries lack a credit history, and may not have a bank account. To get around that problem, companies have come up with a new kind of smart loan for the "unbanked", as they are known. A fascinating article on the Rest of the World site, about the Indian Datacultr app, explains how the system works:

Never let a good crisis go to waste. The federal government is always on the lookout for expansion opportunities and a bad actor known colloquially as "Current Events" keeps handing the government what it's looking for.On January 6th, a bunch of Trump fans, who thought it was possible to overturn certified election results, raided the Capitol building. Five people, including a Capitol police officer, died during the attack. This horrific event was turned into a chance to increase domestic surveillance by the incoming president, who threatened Americans with the sort of good time they've been afflicted with since October 26, 2001.Domestic terrorism legislation was an administration "priority," something that would free investigative and intelligence agencies to turn their surveillance programs inward and more directly target US citizens.The blockbuster breach of widely-used SolarWinds network software affected dozens of federal agencies and millions of users around the world. In response to this travesty, the director of the NSA and its military counterpart CYBERCOM (Cyber Command) floated the idea of allowing the NSA (and others) to gaze inwardly at the country's moving (computer) parts. Here's Spencer Ackerman, writing for The Daily Beast:

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The exponential growth of facial recognition tech over the past decade is cause for concern. The tech is unproven and caters to pre-existing biases. The biggest beneficiaries of the tech explosion are the usual suspects: white guys over the age of 35. Cops claim it's a godsend -- a tool that gives them what they need to close cases, even when it's usually just doing what they've always done: deciding any minority "fits the description."A late entrant to the facial recognition games drew a lot of heat. Clearview gives its government customers (along with billionaires, retailers, and… um… gyms) access to billions of images, every one of them scraped from public posts at hundreds of websites and social media platforms. The legality of the scraping is still unsettled, but the company's desire to turn online posts into fodder for misidentifications that can lead to wrongful incarceration is truly disturbing.But it's not just the public sector taking advantage of AI "advances." Facial recognition is a game even amateurs can play. Online tools allow the Wikipedia Browns of the world to misidentify people just as often as the pros do. Ryan Reilly and Jesselyn Cook of Huffington Post detail the online sleuthing done by internet denizens following the January 6 insurrection attempt. Here's how the possible ID of two Capitol raid participants went down:

One consistent point of pride for the Trump FCC, like many Trump agencies, was its active disdain for real world data. It didn't matter how much data showed that US broadband was expensive and spotty due to monopolization (and there's a lot of data clearly proving that point), the Trump FCC didn't care. It didn't matter that surveys showed that net neutrality was popular among consumers. Guys like Ajit Pai believed that the US broadband sector was perfectly healthy and competitive and you make things even more wonderful by gutting already fairly feckless regulatory oversight even further.In short, some people have an ideology and refuse to accept any data that challenges it, no matter how clear it is. The Ajit Pai Donald Trump FCC was the poster child for this mindset. Yeah, it can be hard for anybody to be open to changing your opinions in the face of new or shifting data, but the Trump FCC didn't try. Like, ever. It blacklisted all reporters that even remotely criticized policy. It actively embraced bogus data from lobbyists. It routinely and knowingly spread absolute, disproven falsehoods. It wasn't interested in real world data. It simply wasn't.It's not entirely clear yet what the Biden FCC is going to look and behave like, as the Biden camp still hasn't yet fully staffed the agency with a third Commissioner and possible permanent boss (kind of a problem during a pandemic busy highlighting how essential broadband is to... everything). But there are indications it's going to at least listen to the data and objective experts instead of just, you know, making shit up completely.Whereas the Pai FCC basically killed a program that used real world data collected from real consumer routers to measure consumer broadband experience (again, because it revealed truths that clashed with Pai's ideology), the new FCC says it's making real world consumer experiences a priority again. That includes a new portal and a new form US broadband users can use to explain their experiences with customer service, prices, speeds, availability, and other sticking points in a highly monopolized business sector.That data will then, purportedly, be used to actively inform policymaking (crazy!):

The repeal of a law that shielded New York police misconduct records from public view has prompted a delayed deluge of records -- one temporarily slowed by the expected litigation from police and police reps who wished to put this transparency genie back in the bottle.The records confirmed what has always been suspected: the NYPD doesn't like to discipline its officers and the Civilian Complaint Review Board is pretty much powerless when it comes to police accountability. ProPublica -- one of the early publishers of NYPD misconduct records -- has obtained more information from the CCRB. This batch of info -- aided by the CCRB's own publication of misconduct data -- shows it hasn't done much to handle the influx of complaints following the NYPD's response to a number of Black Lives Matter protests.

Summary: For years, Google and YouTube have included a trusted flagger program by which certain entities that have shown they “are particularly effective at notifying YouTube” of content violations are given more powerful tools with which to do so.This is used often in the copyright context, and companies with a good history may be given access to things like bulk flagging tools and priority review of flagged content. One such trusted flagger for copyright was a company called Topple Track, which offered an automated service for musicians, searching the internet for infringing works and dashing off automated DMCA notices.In May of 2015, digital music distribution company Symphonic purchased Topple Track, but appeared to keep the service running under its own brand.In the summer of 2018, some people noticed that Topple Track’s automated DMCA notices appeared to go a bit haywire, sending DMCA notices for all kinds of perfectly legitimate content. Among those targeted with DMCA notices were the Electronic Frontier Foundation (EFF), the American Bar Association, NYU’s Law Review, the Crunchbase article about the company MP3Tunes and many, many more -- including many artists’ own web stores. EFF’s summary of the wild takedowns gives a sample

Another day, another state house deciding that it needs to jump into the business of content moderation. This time it's California, and this bill (1) is not nearly as insane as many other states and (2) appears to be coming from well meaning people with good intentions. It doesn't make it a good bill, however. It was announced this week in a somewhat odd press release from Assembly Majority Whip Jesse Gabriel, who declares it to be "groundbreaking" as well as a "bipartisan effort to hold social media companies accountable for online hate and disinformation."Needless to say, the bill is neither groundbreaking, nor would it do much of anything to hold social media companies accountable for online hate and disinformation. Also, bizarrely, the press release does not link to the bill. That's just dumb. However, I will link to it, even though I'm not any of the elected officials supposedly pushing this bill that they do not want to link to. And then if you look at the bill, you can see it was actually introduced... back in early February, so it's not clear why they waited until now to do the press release.The press release makes a lot of blustery claims that the bill cannot live up to (perhaps why they didn't link). Also, there's a key part in all of this that goes unstated: whether we like it or not, everything that the press release and this bill are complaining about -- hate speech, disinformation, extremism, and even a lot of harassment -- are still protected under the 1st Amendment. So, realistically there is not much that any bill on those topics can do without running afoul of the 1st Amendment. To be clear, this is not saying that any of those things are good or should be hosted on mainstream websites. Nor is it saying that the big social media companies shouldn't be constantly improving their moderation practices to deal with those things. It's just noting the reality of the 1st Amendment, and how this bill appears to mainly be upset about those 1st Amendment realities.As for the actual bill, it is pretty limited. It only applies to "social media companies" that have over $100 million in revenue in the previous year:

In early March, Senators pushed the Biden FCC to update our fairly pathetic definition of broadband, which is currently anything 25 Mbps downstream, 3 Mbps upstream. The Senators proposed something closer to 100 Mbps in both directions, a definition mirrored in a new broadband bill recently introduced in the House.As they've done every single time anybody has tried to improve the US definition of broadband, ISPs have started to fight back against any changes. After all, when you increase the definition of broadband, you only further advertise the fact that monopolization has resulted in spotty coverage and slow broadband speeds across most of US. As a result there's virtually no real competition at speeds of 100 Mbps or above in the United States.Enter AT&T, which, in a blog post last week, argued both against subsidizing ultra-fast fiber deployments across the US, while also trying to argue that 10 Mbps upload speeds are good enough for Americans: