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Don't misread the title of this post to think there's only one thing wrong with the DOJ's antitrust complaint against Google. There's plenty. But on the list is this particular self-defeating argument included in the complaint -- the complaint where the DOJ basically has but one job: show that Google is a monopoly.To understand it, we need to first understand the idea of "trademark genericide." That's what happens when your brand name is, well, just too good and people start using your branding as the default word to describe the product or service in general. Famous examples include "Band-Aid," "Thermos," "Xerox," and plenty of other words we're all used to using in lower-case form to describe things that aren't actually produced by the companies that had those trademarks.The issue here is not actually whether Google has lost its trademark rights due to genericide, which is a technical question particular to the operation of trademark law and not relevant to the issues raised here. The DOJ isn't actually arguing that Google has anyway. But what it is arguing is that the same basic dynamic has occurred, where the branded name has become a widely adopted synonym to describe other people's similar goods and services. However, in doing so, it has blown up its own argument because that means there are other similar goods and services. Which means that Google is not a monopoly.Look at what it argued (emphasis added):

We've already discussed at length how the FCC's support of Trump's dumb attack on social media and Section 230 is some of the most blistering hypocrisy we've ever seen (and we've seen a lot). This was, you'll recall, an agency that whined like a toddler for five straight years about how some fairly modest rules holding telecom monopolies accountable was somehow "government run amok," yet has now pivoted gracelessly into supporting Trump's dumb, likely unconstitutional effort to have the FCC police social media -- despite having little to no authority to actually do so.It's been amusing to watch folks like FCC boss Ajit Pai sheepishly avoid really addressing that his colleague Mike O'Rielly was fired by Trump simply for very timidly pointing this out. It's also been amusing to watch Pai, who I guarantee knows that Trump's EO is an idiotic mess, pretend that's not the case as he pushes the NTIA request to "re-examine Section 230" through the bureaucratic grist mill just to generate some bad faith election headlines and please "dear leader."That's supported by this recent Washington Post article that makes it clear top FCC brass knows this idea is garbage but is moving forward anyway because we wouldn't want to make the idiot king mad:

Donald Trump's lurid myths about bad hombres crossing the border to wreak havoc in the United States have failed to be ushered into existence by CBP and ICE. Try as they might, the two agencies have done little more than process a bunch of bog-standard illegal entries. And... um... target college students here legally. Numbers were fudged, but it has proven to be an exercise in futility. This attempt to villainize immigrants has been abandoned by both Trump and these DHS components.Trump's new favorite enemy-of-America is "antifa." The president seems to believe antifa is a hierarchical organization capable of being crippled by intelligence gathering, strategic arrests, and the occasional extrajudicial killing. He's wrong about this as well. But that's not stopping the DHS and its protest-centered task forces from doing everything they can to prove some massive anti-facist conspiracy exists. This includes flying in FBI analysts and their tech to "exploit" data taken from arrestees' phones in hopes of finding some link between ongoing protests and Big Leftist.All the money being spent in hopes of toppling an idea and prosecuting federal crimes isn't really accomplishing either of those tasks. As the AP reports, the feds aren't having any luck massaging Trump's antifa fever dreams into coherent shape. Nor are they really finding much federal crime to prosecute.

I've tried with Nintendo. For some years now, I have both complained about how strict and hamfisted the company is when it comes to allowing fans to express their fandom in the form of fan-created games and content, as well as offered the company advice as to how it could be just a little more cool about all of this. The frustration really starts to boil over when you realize just how much cool content the world could have if Nintendo could figure out some way not to be as protectionist as possible and instead seek out ways to work with fans to allow for this sort of thing. To be clear, as I have said in the past, Nintendo certainly can act this way when it comes to how it treats its fans, but it doesn't have to act this way.But, when you jump at every fan-made work like a toddler on meth jumps at their own shadow, I suppose you just can't help yourself. The most recent evidence that Nintendo isn't changing course comes in the form of a fan-created Zelda game put up on GitHub that Nintendo swiftly got taken down.

Over the last year or so there's been a concerted effort by patent maximalists to try to shred a long line of very good Supreme Court rulings that finally (after two decades) limited just some of the destructive nature of patent trolling. There was an attempt in Congress to literally reject all of those key Supreme Court cases, and bring back Congress's full support for patent trolling. The current head of the patent office has been spewing a bunch of similar nonsense as well, and seems to have no recognition that patents that are too broad hinder, rather than help innovation. And now we have Judge Randall Rader, who ran the federal patent court, the Court of Appeals for the Federal Circuit (CAFC), for many years before stepping down due to an ethics scandal.That ethics scandal? Being way too chummy with patent lawyers who practice before him. As we've noted over the years, part of the problem with the setup of CAFC -- a special appeals court for all patent appeals cases to go to -- was that the judges on it tended over time to buy into patent maximalism, because they basically only spoke to patent lawyers.Judge Rader has now decided to pop back up again to argue that we need more bad and broad patents in order to enable more patent trolls. Or America won't be able to compete. Or some such nonsense.

The origins of Techdirt lie in a newsletter that Mike started over 20 years ago, and in all that time, the business models for online journalism have never stopped evolving and changing, especially when it comes to independent reporting. Now, newsletters are making a comeback with a new model, driven especially by writers flocking to the Substack platform. One such person is technology journalist Casey Newton with his new Platformer newsletter, and this week Casey joins the podcast to discuss his experience and what it can teach us about the future of independent journalism 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.

Last month we noted how Bill Barr was rushing DOJ staffers (much to their chagrin) to launch his "antitrust inquiry" into Google. Why? Three reasons. One, it helps Trump allies and Google adversaries like "big telecom," Oracle, and Rupert Murdoch. Two, it helps put the utterly false narrative of "social media unfairly censors Conservatives" into headlines during an election. And three, it creates leverage over companies that have finally just begun to take online hate speech and disinformation (a cornerstone of Trumpism) seriously. Genuine concerns about "monopoly power" are the last thing on these folks' minds.Right on cue, Bill Barr this morning announced that the Department of Justice is suing Google, claiming that the company's anticompetitive practices in arenas such as search "have had harmful effects on competition and consumers." The initial press release compares Google's dominance to historical natural monopolies of note, such as 80's era AT&T:

If you asked most people what the Cambridge Analytica scandal was about, many would insist that it involved the company illegally sucking up all sorts of data from Facebook and using that to nefariously micro-target people with ads or information in a way that supported Donald Trump or suppressed the interest in voting for Hillary Clinton. As we pointed out years ago, it seemed like everyone was very much misinterpreting what happened with Cambridge Analytica.The reality is now coming out, but so many people are so bought into the original myth story that I doubt it will get much attention. First off, over in the UK, government investigators have now admitted that Cambridge Analytica didn't really do anything special or have any access to data that lots of others had:

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We've said it before, many times: there is no such thing as a publisher/platform distinction in Section 230. But in those posts we also said other things about how Section 230 works, and perhaps doing so obscured that basic point. So just in case we'll say it again here, simply and clearly: there is no such thing as a publisher/platform distinction in Section 230. The idea that anyone could gain or lose the immunity the statute provides depending on which one they are is completely and utterly wrong.In fact, the word "platform" does not even show up in the statute. Instead the statute uses the term "interactive computer service provider." The idea of a "service provider" is a meaningful one, because the whole point of Section 230 is to make sure that the people who provide the services that facilitate others' use of the Internet are protected in order for them to be able to continue to provide those services. We give them immunity from the legal consequences of how people use those services because without it they wouldn't be able to – it would simply be too risky.But saying "interactive computer service provider" is a mouthful, and it also can get a little confusing because we sometimes say "internet service provider" to mean just a certain kind of interactive computer service provider, when Section 230 is not nearly so specific. Section 230 applies to all kinds of service providers, from ISPs to email services, from search engines to social media providers, from the dial-up services we knew in the 1990s back when Section 230 was passed to whatever new services have yet to be invented. There is no limit to the kinds of services Section 230 applies to. It simply applies to anyone and everyone, including individual people, who are somehow providing someone else the ability to use online computing. (See Section 230(f)(2).)So for shorthand people have started to colloquially refer to protected service providers as "platforms." Because statutes are technical creatures it is not generally a good idea to use shorthand terms in place of the precise ones used by the statutes; often too much important meaning can be lost in the translation. But in this case "platform" is a tolerable synonym for most of our policy discussions because it still captures the essential idea: a Section 230-protected "platform" is the service that enables someone else to use the Internet.Which brings us to the term "publisher," which does appear in the statute. In particular it appears in the critically important provision at Section 230(c)(1), which does most of the work making Section 230 work:

You might recall how the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high-paying jobs to the state. Initially, the state promised Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. The amount of political hype the deal generated was utterly legendary, helping market Trump as a savvy dealmaker who'd be restoring technological greatness to the American Midwest.Of course experts repeatedly warned that the deal was too good to be true, and likely would never recoup the taxpayer cost as structured. Those warnings were ignored. And unsurprisingly, as the subsidy grew fatter, the promised factory began to shrink further and further, to the point where it's incredibly unlikely much of anything will be built at all. All now cold comfort to taxpayers who have already doled out a small fortune, or the local residents who had to move thanks to a factory that will likely never exist.Last week, reports emerged that Wisconsin finally appears to be waking up to the scam, and would finally be blocking any more taxpayer subsidies from lining the company's pockets. This week, The Verge (which has done a phenomenal job tracking this bottomless grift from the get-go) penned a great breakdown of the scam, which Trump initially called "the eighth wonder of the world." Ultimately the project isn't much of a project, much less a wonder of any real note:

A seldom used mandate from France's 2006 anti-terrorism law is being wielded rather conspicuously in a single French city to lock up small business owners.

For the moment, police officers in Vallejo, California aren't allowed to use their cell site simulator. A tentative ruling [PDF] issued by a judge says the city violated the law by approving the purchase of a Stingray device without instituting a privacy policy governing its use -- a policy explicitly approved by the city council and subjected to public scrutiny prior to adoption.The case challenging the new device's purchase and use was brought by Oakland Privacy. Matthew Gauriglia of the EFF breaks down the multiple ways the city and its PD skirted their obligations to Vallejo residents.

Esports continues to march down the path toward greater adoption. As we've detailed over many posts, esports had already become a cultural thing heading into 2020. But if anyone expected a regression back to IRL sports, the COVID-19 pandemic essentially cemented the cultural adoption of competitive video gaming. With even greater adoption by IRL professional sports leagues, and with many widely used social media platforms getting in the game and accelerating all of this, esports have continued to hit impressive milemarkers that showcase just how big this is all becoming.It's not slowing down. Signs of that acceleration can be seen first in a glitzy advertisement Nike has put out as it too jumps further into esports gaming.

People throw around a variety of terms that sometimes need to have more specific meanings. When talking about physical goods, when people talk about "knockoffs" or "counterfeits" they're usually referring to a trademark issue. And, in some sense, this is what trademark is supposed to be about. For many years we've argued that trademark should not be lumped in with patents and copyrights, as the concept, purpose, intent, and even Constitutional underpinnings are entirely different. It's extremely frustrating to see people lump in patents, copyrights, and trademarks as "intellectual property" as if they were all similar. They are not. And trademarks are especially different.Indeed, we've always said that (unlike with the other two) trademarks are mostly a consumer protection law, so that you know who is actually making the things you're buying, and you know the origin of it. That is, we let Coke have a trademark on the Coca-Cola branding so that consumers don't get tricked into buying something that isn't Coke, while believing it is. This is why a key part of trademark law has always been the "likelihood of confusion." If there's no likelihood of confusion, than there isn't a trademark violation.But here's an interesting question: if someone is making a counterfeit product... is it still violating trademark laws against counterfeiting if buyers know it's counterfeit? A recent 9th Circuit Court ruling suggests... perhaps not. The case is not about this issue directly, but is about two separate companies who each (independently it appears) came up with products called "Eye Dew." One, Arcona, created an eye cream that in a tall cylindrical silver bottle. Arcona registered a trademark on the name. Around the same time (or even possibly a bit earlier), a different company, Farmacy Beauty, developed its own eye cream, also named EYE DEW. The packaging of the two products looks very, very different:

We've got another cross-post episode for you this week, featuring Mike's recent appearance on Robert Amsterdam's Departures podcast. The conversation touches on many aspects of internet regulation, Section 230, and related issues — but the main focus of discussion is one big mess: Trump's executive order about TikTok, and what it means for innovation.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.

I'm not quite sure what has gotten into Supreme Court Justice Clarence Thomas lately, but he's been on quite a roll in terms of deciding he wants to toss out all sorts of well-settled precedents (including, in at least one case, his very own precedent). What's alarming, though, is that he seems particularly focused on hacking away at free speech and the 1st Amendment. Back in 2016, when people were discussing whether or Donald Trump could "open up" libel laws, lawyer Ken White noted that there was no real appetite among judges to attack free speech.However, it certainly looks like Thomas has that appetite, and is trying to inspire others.It started a year and a half ago, when he (basically out of nowhere) suggested that NYT v. Sullivan was no longer good law. That's the case that set up the well-established and well-recognized standards for defamation of a public figure. It's a key 1st Amendment case, because it sets the bar quite high in an effort to protect free speech about public figures -- saying that it can only be defamation if the speaker saying it knows that the statement is false, or says it with "reckless disregard" for whether or not it is false. While this makes it difficult for a public figure to win a defamation lawsuit, that's the point. If you believe in the 1st Amendment, then that standard needs to be quite high.Today, Thomas decided to also suggest he believes that Section 230's 1st Amendment protecting elements have been interpreted too broadly, and suggests that he'd like to overturn nearly 25 years of "settled" law about how broadly 230 should be applied. He did this as part of the Court rejecting the petition in the Malwarebytes case. We'll have more on this case later, but as we've written in the past, it involves a troubling interpretation that says if moderation is used in a way deemed anti-competitive, 230 does not protect that moderation.Thomas agrees with the decision to reject hearing that case, but then decides to signal his desire to basically undermine the original Section 230 ruling in Zeran v. AOL that set the bar, by noting that Section 230 provided a very broad immunity. That ruling was in the 4th Circuit, but basically every other appeals court that has ruled on 230 has adopted the Zeran standard. There is no circuit split, and the the Supreme Court has never directly examined the issue. Thomas suggests they should.To be clear, while there are dozens (or perhaps more than that) of kooky and crazy interpretations out there of Section 230, Thomas's critique of the interpretation is much more measured. That doesn't mean that it's correct. Indeed, I think it's wrong on multiple accounts. But it's not wrong in the completely nonsense sort of ways that so much 230 analysis is these days. First, he discusses what 230 is and how it came about, including a discussion about historical distributor liability (much of which we discussed in our recent Greenhouse post about online liability before 230).In short, pre-230, there was publisher liability and distributor liability -- which were two separate concepts. Under distributor liability, you could be held liable if you had knowledge of illegal products that you were distributing. The Zeran ruling more or less said that the concept of distributor liability is gone on the internet. It ruled that Section 230 created a broad immunity for internet distributors. For what it's worth, the authors of Section 230, Chris Cox and Ron Wyden, have long said that this was the correct interpretation of the law they wrote.The key argument that Thomas makes is that Section 230 was not designed to completely eliminate the concept of "distributor liability." He argues that a strict reading of 230 would retain a separate form of distributor liability, and that Zeran went too far:

The world's law enforcement agencies are back at it, advocating for the demise of end-to-end encryption. The last time they all got together like this, they were complaining to Facebook for thinking about adding encryption to its Messenger service.Because Facebook does so well reporting child porn to the proper authorities, the proper authorities have gathered to decry its decision to encrypt this service, claiming it would result in a lot of unobserved child porn being passed between users. With Facebook unable to eavesdrop on messages, the images and videos can be shared unnoticed.And, again, the international law enforcement community is asking for weaker encryption… and namechecking Facebook as the cause of and potential solution to all the world's child porn problems. The new "international statement" opens up with a united declaration that everyone loves encryption, before getting to the long list of "buts."

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Hunting down suspects these days doesn't require canvassing the area of a crime scene for witnesses and suspects. All it takes is a warrant. But these are not your regular warrants. To start with, there's no suspect to target and no property of theirs to search. These "reverse" warrants work the way you'd expect them to: backwards. Law enforcement agencies approach companies like Google with demands for the information on everyone in areas near crime scenes and work backwards from the data dump to find suspects.It doesn't always work. Sometimes they get the wrong person. Other times, investigators are shot down by judges who recognize it's impossible to generate probable cause for the search of everyone in a certain area at a certain time. Reverse warrants for location data and devices turn everyone into a suspect when investigators seek this information.But reverse warrants aren't just for location data, as c|net reports. A warrant first spotted by Robert Snell of the Detroit News sought something else: everyone who performed a Google search for a certain home address.

We've noted for fifteen-plus years how entrenched telecom monopolies literally write state telecom laws that ban towns and cities from building their own broadband networks. Even in cases where incumbent monopolies refuse to deploy service. This has gone hand-in-hand with endless (and false) claims that community-run broadband networks are are some kind of vile socialist boondoggle. In reality, data shows these home-grown networks routinely offer faster, cheaper, and better service, in large part because they're run by folks with an active, vested interest in (and direct accountability to) the communities they operate in.That's not to say community-run broadband networks are some mystical panacea, or the answer to the broadband problem in all markets. But it is a successful niche solution for areas out of reach of broadband, and it can help drive competition to markets neglected by incumbents like AT&T, Verizon, or Comcast. As COVID and remote learning/working further highlights the sorry state of U.S. broadband, it's been interesting to watch a steady shift in awareness that just maybe letting giant telecom monopolies write state law to stifle creative broadband alternatives wasn't a good idea.Fixing the "broadband digital divide" will require a huge array of different options. Case in point: Springfield, Missouri is building a fiber optic network for the city, and struck a public/private partnership with CenturyLink which will then lease access on the network. The result: better, faster, cheaper service.

For about a decade now we've been questioning why the government is allowed to seize domains over claims of illegal behavior happening on a website. It seems to us that seizing a website is the equivalent of seizing a printing press or books -- both of which would be deemed clear 1st Amendment violations. Unfortunately, even when those seizures have proven to be for made up reasons, no one has been able to challenge the underlying ability of the government to seize domains. And now it seems to happen all the time. And even if you believe the websites in question are doing something bad, seizing the websites is problematic.The latest such case is the Justice Department announcing that it had seized a bunch of domains pushing disinformation on behalf of Iran's Islamic Revolutionary Guard Corps.

Summary:Facebook has struggled to moderate "hate speech" over the years, resulting in it receiving steady criticism not only from users, but from government officials around the world. Part of this struggle is due to the nature of the term "hate speech" itself, which is often vaguely-defined. These definitions can vary from country to country, adding to the confusion and general difficulty of moderating user content.Facebook's application of local laws to moderate "hate speech" has resulted in collateral damage and the silencing of voices that such laws are meant to protect. In the United States, there is no law against "hate speech," but Facebook is still trying to limit the amount of abusive content on its site as advertisers flee and politicians continue to apply pressure.Facebook moderators use a set of internal guidelines to determine what is or isn't hate speech. Unfortunately for many users, the guidelines -- which they never saw before ProPublica published them -- result in some unexpected moderation decisions.Users wondered why hate speech targeting Black children was allowed while similar speech targeting, for instance, white men wasn't. The internal guidelines explained the factors considered by moderators, which led exactly to these seemingly-inexplicable content removals.According to Facebook's internal guidelines, these categories are "protected," which means moderators will remove "hateful" content targeting anything on this list.

A law enforcement agency looking to dodge oversight has a few options. First, there's the 1033 program, which allows agencies to pick up useful things like guns, bullets, armored vehicles, grenade launchers… and… um… filing cabinets, I guess. Going this route means spending federal money rather than local money. So, if you're not spending local tax dollars, you really don't need to ask permission.Another accountability dodge is the discretionary spending allowed by civil asset forfeiture. Law enforcement agencies directly profit from property seized and are given a lot of latitude on spending those dollars. City/county oversight is rarely involved. Very few localities have implemented strict reporting on seizures so the money flows from victims through cop shops and into the hands of cop tech purveyors.There's a third option: use private money. Donors with deep pockets and minimal concerns about the people they're bypassing pay for surveillance tech and other law enforcement goodies. Again, because no public money is involved, the public is left out of the equation. This happened in Baltimore, where a Texas philanthropist purchased an aerial surveillance system capable of covering the entire city. No one was told about it until after it went up in the air.The same thing is happening elsewhere. Lots of private companies and individuals are buying stuff for police departments, allowing them to circumvent accountability measures. Some of these "private" concerns should be considered public, considering their narrow focus. As ProPublica reported in 2014, the Los Angeles Police Foundation -- a "private" charity -- asked for $200,000 from Target Corp. to buy the Los Angeles Police Department data analytics software from Palantir. It also purchased several automatic license plate readers for the department. No public oversight was involved since it was "private" money.Joseph Cox reports on more of this public/private bullshit for Motherboard. Another "private" charity -- the San Diego Police Foundation -- has gifted local cops with a high tech phone cracking tool.

Say it with me now: not every last thing needs to be connected to the internet. If we've learned anything through the myriad of posts we have done on the internet of broken things, it's that far too many devices that need not be internet-connected are instead wide open to security flaws and connectivity-related flaws and outages. Pet feeders, so-called smart locks, healthcare devices: all examples of things that have been broken or broken into thanks to their being connected to the internet in wildly insecure manners.But what if I told you that a lack of basic security could result in a device you bought potentially forcing you to have someone come at your penis with an angle grinder? Well, if you bought a Cell Mate chastity lock, you should damn well be concerned.

Once again this week, the President decided to attack Section 230 because social media companies decided to highlight that he was posting dangerous misinformation (this time about the relative dangers of COVID-19, which he was downplaying). Yet, for reasons I do not understand, the President never seems to address copyright law, even though that law is what is actually forcing his and his campaign's content to be legally removed from social media.Over the last few months we've highlighted multiple times that Trump and his campaign have had posts removed from social media due to DMCA 512 takedown notices. And it happened again this week after Twitter removed a tweet from the Trump campaign on copyright grounds.The tweet in question made use of a video clip showing the San Francisco 49ers wide receiver Brandon Aiyuk scoring a touchdown from last Sunday's 49ers/Eagles game. The clip (somewhat ridiculously) superimposed Trump's head over Aiyuks, and put the well known graphic of the coronavirus on Eagle's defender Marcus Epps (whom Aiyuk leapt over in getting to the end zone). The message of the video (stupidly) is that Trump was somehow able to "avoid" the coronavirus (which, I should remind you, he did not). The video is stupid on multiple levels, including the the sickening and despicable implication that those who died from COVID-19 are somehow just not strong enough.However, I think there's a pretty strong argument that the video would be protected as fair use -- and that the takedown issued by the copyright holder (likely the NFL) was not a legitimate takedown. In fact, it's possible that the NFL issued the takedown for political reasons, as there's no argument that this somehow harmed the NFL directly. It's a short clip. It's used in a transformative (if stupid) way.In other words, this is an actual example of the law being used for censorship. Unlike Section 230. And yet, we don't see Trump or his supporters calling for that aspect of copyright law to be fixed. Indeed, copyright law is even worse, because if the Trump campaign keeps getting copyright strikes like this, the law says that Twitter must shut down his account for repeat infringements. Will Trump and his supporters finally see that the real problem for censorship is copyright?Instead they're asking to take away Section 230, which (at best) would create a situation more like copyright in which the legal incentive is much stronger towards pulling down such content. It remains incredible to me that in all of these discussions about social media and "censorship" everyone is focused on the law that protects speech online, rather than the law that forces websites to pull down legal content.

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I am perplexed. US district court judge Alfred Covello seems to have a very strange understanding of the 1st Amendment. As first noted in the Hartford Courant (who didn't link to the ruling) Covello has ruled that holding up a sign telling drivers that there are police ahead is not protected speech under the 1st Amendment. Because I'm not the Hartford Courant, you can read the whole ruling yourself.First off, let's be clear: Covello is wrong, and hopefully the ACLU (which is handling this case) will appeal. Plenty of other courts have ruled otherwise, including that merely flashing your headlights to oncoming cars is a form of protected speech, which seems way less expressive than holding up a printed sign saying that police are up ahead.To put an even finer point on this: by holding up a sign warning drivers that police are up ahead, the plaintiff in this case, Michael Friend, was actually encouraging drivers to obey the law. Which seems like a good thing. Except that the police didn't like him telling people to obey the law, because they make money from people not obeying the law. Either way, holding up a sign about what government employees are doing is quintessential protected free speech.Covello's reasoning is... bizarre.

AT&T has announced the company has stopped selling DSL lines completely as of October 1. It's not particularly surprising. AT&T has long history of refusing to seriously upgrade its network to fiber despite untold billions in state and federal subsidies and tax breaks. Many of these DSL connections were far from meeting the FCC definition of broadband (25 Mbps down, 4 Mbps up). For its part, AT&T says its focus moving forward will be on 5G wireless and fiber:

A week or so ago, the head of the US Patent and Trademark Office, Andrei Iancu, who has been an extreme patent maximalist over the years, insisted that there was simply no evidence that patents hold back COVID treatments. This is a debate we've been having over the past few months. We've seen some aggressive actions by patent holders, and the usual crew of patent system supporters claiming, without evidence that no one would create a vaccine without much longer patent terms.Iancu was questioned about how patents might hold back life-saving innovation and he brushed it off like this was a crazy question:

It's common knowledge now that the Chinese government heavily censors the access its population has to the internet and information writ large. It's been a decade since China first proffered that its Great Firewall of China was not actually censorship, but was merely a method for "safeguarding" its citizens. Safeguarding them, it seems, primarily from any international criticism of the Chinese regime itself, which sure seems like it's more about safeguarding the government, rather than the citizens. In the subsequent decade, whatever skin China had to weather criticism further sloughed away such that the government is now not only actively pressuring groups and companies within Chinese borders, but actively attempting to affect its censorship outside those borders as well.Whatever else we might want to say about Chinese censorship, it most certainly is not subtle. This was on full display when the government essentially pulled the plug on streams for the American Vice Presidential debate precisely during a segment discussing China's actions on COVID-19.

Five Years AgoThis week in 2015, while many sites were going to war with ad blockers, we unveiled the ability to turn off ads on Techdirt in your user settings. Various emerging info revealed sketchy behavior by the Secret Service, the State Department's success in planting anti-Wikileaks questions in the 60 Minutes interview with Julian Assange, and the surveillance failures of the Postal Service. Rightscorp was telling its copyright-trolling targets that they need to hand their computers over to police, PETA was defending its supposed right to represent the selfie-taking monkey, and — though it seems minor compared to what's going on right now — we talked about the increasing number of attacks on Section 230.Ten Years AgoThis week in 2010, Citibank was abusing the DMCA to try to hide its comments on Obama's bank reform policy, a city council was claiming copyright infringement over one councilor countersuing Righthaven. Meanwhile, Congress was pushing the COICA anti-infringement bill, and we took a look at all the technologies it would have blocked in the past, then all the current technology it was likely to interfere with, while Tim Berners-Lee stepped up as an opponent to the bill (and the RIAA, of course, stepped up as a hysterical supporter) — and by the end of the week, the bill was shelved.Fifteen Years AgoThis week in 2005, the ever-changing world of mobile phone etiquette was grappling with Bluetooth headsets while some restaurants were splitting into phone and no-phone sections. The pessimism about cameraphones was faltering as a new music video was shot entirely with a phone, and some early battles over transit map apps were popping up, while Motorola's CEO was whining about the iPod Nano and Seagate's CEO was making the case for hard drives over flash memory — while SanDisk made a much-anticipated announcement about flash storage that turned out to be... new copy protection technology. Professors were following in the shoes of doctors and freaking out about online reviews, Warner Music was foolishly overestimating its power in negotiations with Apple, and Sony was repeating its past ways by trying to block developers from hacking the PSP.

The last time we discussed Hugo Boss, the famed upscale clothier based out of Germany, it was when the company sent a C&D notice to Boss Brewing, which makes beer. While there can be no doubt that Boss Brewing would have won any dispute on the merits, given that the two entities are simply not playing in the same marketplace and there was zero chance of any kind of public confusion in commerce, Hugo Boss got its pint of blood by getting the brewery to change the name of two of its beers in a barely perceptible way.In other words, there was no real or potential harm done to Hugo Boss over the target of its dispute, but these sort of trademark actions are more reflex than logic.And here we go again, with Hugo Boss sending another notice to an artist who decided to trademark a phrase he uses to conclude his art lessons with for use on merch.

Summary:Talkspace is a well known app that connects licensed therapists with clients, usually by text. Like many other services online, it acts as a form of “marketplace” for therapists and those in the market for therapy. While there are ways to connect with those therapists by voice or video, the most common form of interaction is by text messages via the Talkspace app.A recent NY Times profile detailed many concerns about the platform, including claims that it generated fake reviews, lied about events like the 2016 election leading to an increase in usage, and that there were conflicts between growing usage and providing the best mental health care for customers. It also detailed how Talkspace and similar apps face significant content moderation challenges as well -- some unique to the type of content that the company manages.Considering that so much of Talkspace’s usage includes text based communications, there are questions concerning how Talkspace handles that information and how it protects that information.The article also reveals that the company would sometimes review therapy sessions and act on the information learned. While the company claims it only does this to make sure that therapists are doing a good job, the article suggests it is often used for marketing purposes as well.

We've detailed for a while now how both Republicans and Democrats are mad online about how the internet works -- though often for reasons that directly conflict with each other. We've also highlighted how Donald Trump and his administration are actively encouraging Republicans to focus all of their legislative and grandstanding firepower on attacking the internet.What I cannot understand is... why are the Democrats helping?In a Senate Commerce Committee hearing on Thursday, Democrats initially seemed to recognize that plans to subpoena various internet CEOs (AGAIN) were little more than a dog and pony show for Republicans working on their Trump-directed culture war against the internet. Senators Cantwell and Blumenthal both stated that they knew this was all a grandstanding ruse to pressure social media companies to leave up their misinformation and propaganda:

Orange County (CA) sheriff's deputies are the worst at law stuff. If the goal was to hire the stupidest, most plausibly-deniable candidates, the OCSD has hit the mark.Deputies for this department have managed to achieve the impossible: turn local prosecutors against them by continuously mishandling evidence. Evidence must be managed carefully since it's the thing prosecutors use to secure convictions. In the hands of deputies, evidence is just something that must be handled, however haphazardly, at whatever point they get around to it.Since they can't handle the job of correctly booking evidence, deputies have been faking reports, claiming evidence is booked in when it actually isn't to avoid getting reprimanded for taking too long to process seized property. One deputy, Bryce Simpson, never did the job correctly. In 74 cases audited, 56 had no evidence booked at all and the other 18 only had some of the evidence booked.Now, Deputy Bryce Simpson -- along with Deputy Joseph Atkinson Jr. -- are being given a pass by the special prosecutor presiding over the grand jury convened to decide whether these two slackers/liars should face criminal charges. According to the prosecutor, the deputies did nothing wrong because -- wait for it -- they didn't know falsifying official documents was wrong.

Okay, this post is going to be quick because, none of us should be wasting our time on this this week. We've now got FOUR new bills JUST THIS WEEK seeking to undermine Section 230 (and that's after one more last week). Obviously, it appears that Congressional Republicans have taken to heart the Trump Administration's demand to make attacking Section 230 and the internet companies a key focus between now and the election.Not counting all the other anti-230, anti-open internet bills from earlier this year (and last year), in just the last week we had Senator Lindsey Graham introduce the Online Content Policy Modernization Act, which was actually just a mashup of the bill he cosponsored a few weeks earlier with Senators Roger Wicker and Marsha Blackburn, combined with a dangerous copyright bill, the CASE Act.This week, we've already seen Senators Manchin and Cornyn release their "force companies to snitch on everyone" See Something Say Something Act, and then on Wednesday we had two more anti-230 bills, including Senator John Kennedy's "Don't Push My Buttons" Act and then in the House there was Reps. Sylvia Garcia and Ann Wagner pushing their version of the EARN IT Act, which would attack both Section 230 and encryption in one single blow.And the latest is that Rep. Jim Jordan, famous for dodging ongoing accusations of a rather horrific scandal and for constantly screaming nonsense about "anti-conservative bias," has thrown his hat in the ring with the "Protect Speech Act." Jordan has been pretty vocal in a few Congressional hearings (often having nothing to do with content moderation) about how "big tech" is "censoring conservatives." He goes back to the false claim that Google threatened to pull ads from The Federalist over the site's conservative views, ignoring of course that plenty of others sites -- including Techdirt -- have dealt with the same issue repeatedly.Jordan's new bill is really just a mashup of two other bills. One is the Graham/Wicker/Blackburn bill, along with the DOJ's own proposed anti-230 bill which came out last week as well, because apparently THE ONLY THING THAT CONGRESS NEEDS TO FOCUS ON THESE DAYS IS SECTION 230.The bill is both lame and unconstitutional, but I'm not going to go over why, because you can just go back to my older analysis of the Wicker/Graham bill and the DOJ bill and recognize that all of the problems with those bills are also in this one.Even in a normal year, this would be crazy. Having so many bills, all seeking to undermine the open internet, all coming out at once, would be just generally exhausting. But the fact that it's happening at this particular moment in time -- when the open internet is a key part of what is keeping people connected and able to work and socialize, in the midst of a pandemic that Congress is mostly ignoring -- is just positively preposterous.Congress is regularly seen as out of touch with Americans. This is why. They're playing politics and grandstanding to distract from all their failures, by trying to destroy one part of our daily lives that's actually working right now.

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Back in June, there was a well-documented hubbub about the NY Times Opinion editor's decision to publish a horrific op-ed by US Senator Tom Cotton defending turning the US military on US citizens who were protesting police brutality. Eventually, after widespread protests, including from journalists and staff within the NY Times, the paper admitted that it probably should not have published the piece, and the head of the opinion pages, James Bennet (who admitted he hadn't even read the piece before approving it) stepped down. Many supporters of President Trump and Senator Cotton argued that this was an example of "cancel culture" or an "attack on free speech." Or that it was a sign that some were "unwilling to listen to the other side." However, that was all nonsense. As I explained at the time, the "discretion" part of editorial discretion is important.The NY Times is not social media. It is not a place where just anybody gets to post their crazy uncle crackpot theories. They have an editorial staff and editorial standards for a reason. And part of that is that people expect them not to publish absolute garbage, such as the Cotton op-ed. It's not about "hearing all sides" or about "free speech." It's certainly not about "cancel culture." It's about recognizing that there are standards for what kinds of things you want to put your own stamp of approval on.It appears that the folks at the NY Times opinion pages (even without Bennet) have not learned that lesson. For reasons I will never understand, it has decided to give its editorial stamp of approval on the most disgusting op-ed I've seen. A Chinese government official, Regina Ip, was given the prestigious NY Times opinion pages to write a sickening defense of China's crackdown on freedom in Hong Kong. It's sickening. It's garbage. Just to give you a taste of what propagandist nonsense this was:

42 million Americans lack access to any broadband whatsoever. Another 83 million American consumers can only get access to broadband from one ISP, usually Comcast. Tens of millions more are stuck under a broadband duopoly, usually comprising of Comcast/Spectrum and some apathetic telco that refuses to upgrade or repair its aging DSL lines. Data makes it extremely clear the end result of this lack of competition is some of the highest prices for broadband in the developed world, and some of the worst customer service of any industry in America.Instead of tackling the corruption and regulatory capture that has allowed geographical monopolies to dominate the sector (harming consumers, competition, and technical innovation alike) America enjoys taking the opposite approach: namely lying about the scale of the problem, then routinely kneecapping and defunding the regulators tasked with trying to improve things. The end result: more of the same problems. New data from Fairshake estimates that 20 million American households have unresolved complaints against their ISPs in just the last year. The complaints are the usual fare: overbilling, slow service, crappy customer service, and misleading bogus fees. All told, the outfit estimates that 40 million U.S. homes had filed a complaint about their ISP last year alone:

We've pointed out just how ridiculous it is that Congress seems wholly focused on destroying the open internet by gutting the Section 230 protections that enable the open internet to exist in its present form. We're in the midst of a variety of pretty major issues, and yet Congress is introducing new anti-internet and anti-tech bills like it's last call before the bar shuts down.The reason for this is not that hard to grasp, really. As Politico reports, the Trump administration has decided that a culture war against the internet is the best election strategy right now:

Nikola Motor Company, to put it mildly, is having itself a bad month. First came the bombshell reports from a hedge fund that founder Trevor Milton lied in 2016 when he told the world that the company had a fully functional Nikola 1 electric semi truck. Worse than that, it was revealed that a promotional video in 2018 showing the truck rolling down a lonely highway, was actually showing a Nikola 1 rolling down a hill, since the truck couldn't actually move under its own power. Milton resigned after those reports, but the hits kept coming. Two women have come forward claiming that Milton inappropriately groped them when each was fifteen, with one of those women being his cousin. For the record, Milton has denied both allegations.But the fallout appears to be continuing. September 30th was supposed to be the date by which Nikola's notable contract with General Motors was to have closed. That deal appears to be in limbo, however, with regulatory filings indicating that both sides now have until December to sign the deal or terminate it.

Palantir is raking in millions. It's your surveillance provider, whether you -- the valued customer target -- had any say in the matter or not. Data comes in from all over and Palantir helps law enforcement make sense of it. Haystacks are useless. "Drilling down" -- to use official Palantir parlance -- is everything. Whether it's ICE or your local PD, Palantir is turning data into arrests… or at least stops/frisks and low-level harassment.Palantir gives law enforcement something roughly aligned with predictive policing. Predictive policing has given itself a bad name over the years by relying on dirty data supplied by cops who target minorities under the bigoted assumption that that's where the crime is. Palantir doesn't use that term but its analytics provide the same outcome: garbage results from garbage data.And there's oh so much data. Everything cops own gets fed into the system: millions of license plate photos from ALPRs, every piece of detritus generated by police reports, gang databases that think residents are gang members because they happen to live in gang territory, etc. And it adds in everything else: state license plate databases, regional crime center reports, the bullshit crafted by DHS-led "fusion centers." Everything goes in and Palantir helps craft what comes out.Documents obtained by BuzzFeed show how much crafting Palantir does and how much minute detail its software allows officers to fiddle with. It's not cheap, but agencies like the Los Angeles Police Department feel it's worth it.

We've talked a lot about how while the lack of security in Internet of Things devices was kind of funny at first, this kind of apathy towards privacy and security in everyday technology isn't a laughing matter. Whether it's cars being taken over from an IP address up to ten miles away, to the rise in massive new DDoS attacks fueled by your not-so-smart home appliances, security experts have spent the better part of the decade warning us the check for our apathy on this front is coming due. We've (and this includes government agencies) have spent just as long ignoring them.That's particularly true in the healthcare field, where hackable pacemakers and ransomware-infected hospital equipment is becoming the norm. Earlier this month, a woman died in Germany after a ransomware attack on her hospital delayed life-saving treatment. Though she most certainly probably isn't, she's being declared the first person to be killed by the steady parade of such attacks that have plagued the medical sector for much of this decade.Last weekend, Universal Health Services, with more than 400 locations in the United States, was hit by one of the biggest ransomware attacks in U.S. history. As a result, the hospital chain was forced to resort to using pens and paper to manage patients after their computer systems ground completely to a halt. Such attacks usually come on the weekend when the hospitals are short staffed, and the results usually aren't pretty:

Fifteen years ago, we applauded jazz musician Maria Schneider, who was an early adopter of crowdfunding her music directly from fans -- getting them to donate to help her pay to record a new album. We were excited to see musicians like her go direct to fans and show that you didn't need record labels and the old way of doing things, such as locking up the music, to become a successful musician. For reasons I don't fully understand, in the intervening years, Schneider has become one of the most vocal critics of "big tech" and "piracy," even as she had been an early embracer of the internet and unique business models.And then, in early July, she sued YouTube along with an anti-piracy organization called Pirate Monitor Ltd. The lawsuit had some unique (some might say "bizarre") legal theories in there, and was brought by infamous law firm Boies Schiller Flexner, whose top named partner, David Boies, you may recall from his work to try to spy on Harvey Weinstein's accusers. Or perhaps from the time he was actively involved with trying to suppress the speech of Theranos whistleblowers (where he was on the board). Or from the time he threatened us for reporting on leaked emails. Or from the fact that he's represented Oracle in trying to undermine the fundamental open nature of APIs for which he received a fantastic benchslap from Judge William Alsup who mocked Boies as being "one of the best lawyers in America" making a very silly legal argument.Boies' firm representing Schneider raised a lot of eyebrows around the industry. I heard from multiple people wondering how it was that Schneider could afford a firm like Boies'. And, of course, Boies' connections to Hollywood (Weinstein, Sony Pictures) suggested there might be more behind this lawsuit than just an upset jazz musician.But the lawsuit has now gone completely sideways in the most delightful way, as it appears that Schneider actually licensed her music to YouTube and (much, much, much worse), Pirate Monitor had actually set up fake accounts to upload its own works (reminiscent of that time that Viacom had to amend its lawsuit against YouTube after it was realized that Viacom had tried to sneakily post about 100 videos from its marketing department that it later sued over).First, though, an explanation of the lawsuit itself. Schneider complains that she was not allowed to use ContentID to block or monetize her music that was uploaded by others. Schneider's lawsuit argued that this created a two-tier system, in which less well known artists like herself were left on their own to fight piracy, while bigger artists could just turn on ContentID.

Readers of this site no doubt know that Oracle’s arguments in its lawsuit against Google, set to be argued in the Supreme Court on Wednesday, could spell disaster for the computer industry, by turning the act of reimplementing an API into copyright infringement. Back in January, I revealed in an Ars Technica piece that it could even spell disaster for Oracle itself, because Oracle’s cloud storage service reimplements Amazon’s S3 API. Oracle did not dispute my findings but shrugged them off, claiming Amazon had granted permission. I was skeptical, but at the time did not have hard evidence to prove a negative that Oracle had no license.I’ve now found the evidence for why Oracle should be worried. And more importantly, it shows why every tech company and startup should be worried about the Google v. Oracle case.What Oracle pointed me to in January was an open source Apache license for Amazon's Java SDK software. This was curious at the time because the SDK doesn’t implement S3 or any other cloud service; it uses the API by calling a handful of its functions. Code that calls an API is distinct from the API itself, so permission to copy API-calling code is not permission to implement an API (assuming, as Oracle does, that you need permission to implement an API). To repurpose a favorite analogy of Oracle’s lawyers, buying the rights to an authorized Harry Potter fanfic does not give one permission to reproduce Chamber of Secrets. Nevertheless, the idea that the SDK license gave Oracle the right to reimplement Amazon’s API continues to circulate among Oracle’s supporters.The problem is, Amazon itself doesn’t believe it has licensed its cloud API. In 2012, a company called Eucalyptus Systems announced that it had negotiated a license with Amazon to reimplement APIs including S3. Reports of the deal suggest that Amazon was not handing out licenses to just anyone: “Amazon chose to partner with Eucalyptus,” said a representative for the latter company.The Apache license for the Java SDK has been in place since at least 2010—two years before the Eucalyptus deal. If, as Oracle claims, everyone already had an Apache license to reimplement the S3 API, then there was no reason for Amazon to negotiate out an individual license with Eucalyptus, and there was no reason for Eucalyptus to promote its success in obtaining that license.In 2014, Eucalyptus was acquired by HP, which raised the question of whether the acquired firm's API license would transfer. In reporting on the acquisition, one journalist (who apparently now works for Oracle) quoted an anonymous cloud service vendor who described Amazon as “anything but generous on API licensing.” Again, that would make no sense if Amazon had Apache-licensed reimplementation of its APIs in 2010.Notably, Amazon's licensing behavior doesn't say much about whether Amazon actually agrees that API reimplementation is copyright infringement. Numerous people have noted that Amazon never has and probably never will bring a copyright case in court. But risk-averse businesses will want certainty—even the CEO of Eucalyptus did not believe that APIs were copyrightable, but still got a license as "belts and suspenders." And many major cloud service vendors have not reimplemented Amazon's APIs despite the obvious benefits of doing so. As one cloud service executive put it in 2014, the Oracle v. Google litigation has made it "more dangerous to use someone’s API design without consulting them first."Besides poking a massive hole in Oracle’s Apache-license theory, this “consult first” mentality shows how troublesome Oracle’s copyright theory is. Eucalyptus is not a traditional cloud service provider competing head-to-head with Amazon, but rather software for on-premises servers, allowing companies essentially to run a cloud computing system like AWS on their own computers. Amazon is not in the business of deploying on-site enterprise servers, so Eucalyptus would not have undercut Amazon’s profits—in fact, it probably would have increased Amazon’s profits by locking companies into Amazon’s API even before they switch from on-site servers to the cloud.The permission culture mentality, applied to the computer industry, could end up only locking in consumers, boosting big firms, and shutting out disruptive startups from competing in the market. In evaluating Oracle's theory of API copyright, the Supreme Court could either reject it and open the door to robust competition in the technology space, or approve copyright in APIs and entrench dominant services for years to come.

As we noted late on Friday, even with the weird grifty deal between TikTok and Oracle, Trump's ban on TikTok was scheduled to go into effect last night -- but a court was rushing to review a request by TikTok/Bytedance to put in place a temporary injunction to stop the rules from taking effect.In an emergency hearing on Sunday morning the judge appeared to be inclined to block the injunction, noting:

The cable industry was already struggling last year, when a record number of cable customers "cut the cord" and flocked to over the air or streaming alternatives. That was before a pandemic came to town. Now, with some sports on hiatus and folks desperate to cut costs, the trend has only accelerated, to the point where 6 million Americans are poised to cut the cord this year alone:

This week, our first place winner on the insightful side is Thad with some thoughts on Ajit Pai and Section 230:

Five Years AgoThis week in 2015, a major scandal began when Volkswagen was accused of using software to cheat emissions tests. The White House was the FBI, CIA and much of the military were not doing basic email encryption — but in India things were going in the opposite direction. The monkey selfie saga began a new chapter with PETA filing a lawsuit on behalf of the monkey, and then an even bigger copyright bombshell hit when a judge ruled that Warner Chappell doesn't hold the copyright on happy birthday. Plus the world got a new famous villain with a sudden hike in drug prices introducing everyone to a man named Martin Shkreli.Ten Years AgoThis week in 2010, Intel was threatening to break out the DMCA anti-circumvention lawsuits against anyone using the recently-leaked HDCP master key, state AGs were turning their attention to Backpage (which was gearing up to fight back), and movie studios were freaking out about fan pages. The MPAA was apparently fishing for censorship tools in ACTA by talking about Wikileaks, while the Senate was offering them a gift with a new bill that would enable global censorship of "pirate sites" (with a special loophole allowing the DOJ to avoid due process. And we saw a variety of interesting developments in various lawsuits: one judge was entertaining the notion of implied licenses in a Righthaven lawsuit while another was shutting down US Copyright Group subpoenas, a UK judge was similarly not impressed by copyright pre-settlement campaigns, and a judge in Spain smartly ruled that Google is not liable for user uploads.Fifteen Years AgoThis week in 2005, there was a mess of internet jurisdiction cases in Canada with one ruling being overturned on appeal while another court muddied the waters with a ruling based on the overturned ruling. Hollywood was pouring money into an ill-fated attempt to build better DRM technology, which could be described as them calling their own bluff. Following the Supreme Court's decision in their case, Grokster was scrambling to sell to a "legit" company, as were several other file-sharing software providers. And one judge in a RIAA lawsuit thankfully recognized that parents aren't liable for their kids downloading music.