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Normally, when we see what we consider a dumb trademark dispute over a dumb trademark resulting in two parties calling a truce and stopping the dumbness, we cheer such resolutions on. Far too many dumb trademark disputes find their way into the courtroom or become prolonged USPTO disputes, after all. So, when a resolution is amicably reached, that tends to be a good thing.This is not one of those times. You will recall that since the middle of 2019, we have been discussing a crazy trademark application made by The Ohio State University for the word "THE". Yes, the school is trying to trademark what may well be the most commonly used word in the English language simply because of its own pompous insistence that its school be recognized with that word at the start of its name. It's dumb enough, in fact, that former OSU footballer and current NCAA Football analyst Kirk Herbstreit panned the school's actions in an interview. Despite the public outcry over all of this, and despite the school initially being denied the mark by the USPTO on largely technical grounds, OSU has continued to press on trying to get its trademark.Unfortunately, as it did so, it discovered that another player had entered this tournament of stupid. Luxury clothier Marc Jacobs had apparently submitted its own trademark application for "THE", because idiot-lightning apparently does strike twice. And, while OSU had planned an opposition to the application, the two sides have now announced a truce.

As we noted recently, the wireless industry has been developing a new "trust score" to determine who is or isn't worthy of being able to send text message spam. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of. The problem: a growing roster of groups are worried about the transparency of the process, noting that the Milan-based company (Kaleyra) running this new "Campaign Registry" hasn't been forthcoming or consistent when it comes to details of the system, launching in June.Text messaging campaigns remain hugely effective, with 90 percent of text messages are read within 3 minutes. But a chorus of groups from Sierra Club to Planned Parenthood are growing increasingly worried that the overall system, dubbed 10DLC, could result in many of them losing their ability to engage in outreach:

The way a lot of people talk about content moderation is disappointingly uncreative — most of all in the way they boil every decision down to the binary decision of "leave it up or take it down". But this framework is extremely limiting and doesn't reflect the way content moderation professionals work, and one person working to paint a better picture is Santa Clara Law Professor Eric Goldman. He joins us on this week episode to discuss the many different ways to approach difficult content moderation questions.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander's old seat, and he's kicking off his tenure with a bang... of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today's GOP apparently believes that they can throw the Constitution out the window... as long as they (1) claim they're owning the libs, and (2) pretend that they're tearing up the Constitution to save the Constitution.In this case, Hagerty has put out a piece in the Wall Street Journal -- which will publish any anti-Section 230 screed no matter how factually challenged -- to talk about a new bill he's preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he's doing it by claiming it is about "protecting liberty." The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be "Clueless Senator Wants To Take Away Internet Freedom."Let's dig in.

You can be angry about things said about you in court filings. But you really can't sue about them. Reporting based on court documents is almost (!) always protected by the First Amendment. After all, those making the statements in court are swearing what they're saying is true. Those reporting on sworn statements have no reason to believe otherwise, even if it's eventually revealed the assertions were false.That's the tough lesson being learned by Jason Miller, a former Trump advisor who sued Gizmodo for reporting on court filings stating he had spiked a smoothie with an abortion pill to head off an inconvenient pregnancy. Miller has always claimed this accusation is false. Splinter -- a now-defunct website owned by Gizmodo -- reported on allegations made by another Trump staffer, A.J. Delgado, back in 2018.Since then, Miller has been trying to sue Gizmodo for defamation. But there's no defamation here, as the Eleventh Circuit Court of Appeals affirms in its decision [PDF]. The lawsuit was filed in New York, which activates local civil rights laws which grant a "fair and true report" privilege to journalists who report on court filings. That proves instrumental in this dismissal, even though the First Amendment would have covered it as well.The allegations Miller sued over are incredibly disturbing.

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You may have heard recently that James O'Keefe, the guy behind "Project Veritas" -- a propaganda outlet whose brand of highly edited, surreptitiously recorded videos are often followed by actual media having to come in and debunk the misleading bits -- had his Twitter account shut down recently. He immediately threatened to sue Twitter, and last week he actually did so.The crux of the lawsuit is that because a reporter claimed that Twitter told him O'Keefe's account was banned for "operating fake accounts," that's defamation. The lawsuit notes that back in February, Twitter also banned the Project Veritas account. In that case, it was because one of Project Veritas' videos allegedly revealed "private information" which violated its rules. In that case, the private information (according to the lawsuit) was that the video showed the house number of a Facebook executive who they were trying to interview. In the lawsuit, O'Keefe's lawyers try to make a big deal of the fact that real media organizations sometimes show where people live as well, leaving out the fact that this does not matter one tiny bit. Twitter sets the rules on its own platform, and when it's making decisions on the rules, they often involve context (and that context may include Project Veritas' long history).But the key part of the lawsuit is the claim that because a Twitter spokesperson told the media that O'Keefe violated its policy against "fake accounts," and O'Keefe claims he didn't operate fake accounts, this is defamatory. The arguments in the case are going to make some of you laugh:

In late March, the UK's National Society for the Prevention of Cruelty to Children (NSPCC) started injecting its anti-encryption views into the major papers via some press releases and statements claiming encryption was the "biggest threat to children online." It also claimed its stance was supported by a soon-to-be-released report, which had gathered opinions and analysis from a number of stakeholders.Its report debuted a few weeks later. Put together with the assistance of PA Consulting, the supposedly "balanced" report came to the conclusion the NSPCC arrived at earlier: end-to-end encryption is bad. That this wasn't greeted with gasps of shock by readers and receptive journalists shows just how much the UK government's disdain for encryption has gone mainstream. The NSPCC wasn't saying anything new about encryption. It was simply saying what the UK government has been saying for years: it doesn't care for encryption because it believes encryption aids criminals far more often than it protects innocent people, including the children the NSPCC claims to be so worried about.The NSPCC presents its report as a research paper, but the list of stakeholders it actually chose to engage with guaranteed the report would result in the conclusions the child safety agency desired to see in print. As Barry Collins points out in his vetting of the report, the supposedly wide-ranging group of contributors was actually just a bunch of entities -- many with ties to the UK government -- which were already opposed to the deployment of end-to-end encryption by messaging platforms.Here's what the NSPCC said it was doing to compile this report:

While we've seen plenty of instances of confused attempts at trademark bullying backfire on a company, this post will deal with one of the worst I've seen. Most of you will likely be familiar with the company Ocean Spray, best known as a purveyor of all kinds of cranberry-infused fruit drinks. You will likely be less familiar with Wedge Water, LLC, a company that makes fruit juice infused water products. The company also does business as Wave Soda, promoting its soda-alternative drinks.Well, according to a lawsuit filed by Ocean Spray seeking declaratory relief that it did not infringe any trademarks with its own "wave" branding, Wedge Water / Wave Soda sent a cease and desist notice to Ocean Spray demanding that it cease using its own federally registered trademark. More on that in a moment, but here is what the complaint notes about the C&D.

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

In The Princess Bride, the character of Vizzini famously says: "Ha ha, you fool! You fell victim to one of the classic blunders! The most famous of which is 'never get involved in a land war in Asia,' but only slightly less well-known is this: 'Never go in against a Sicilian when DEATH is on the line.'" I don't know if it's surpassed either of those yet, but quickly moving up the list would be "Never try to patent troll Cloudflare." Apparently, the patent troll Sable Networks has just made exactly that blunder.About a decade ago, the online retailer Newegg pioneered the strategy of attacking back on patent trolls. The entire patent trolling business model is based on the fact that it is almost always cheaper to settle a patent trolling case than to fight it and win. A full patent trial will cost over a million dollars easily, and sometimes multiples of that. But many patent trolls file a ton of lawsuits, hoping to settle each for well less than what it takes to fight in court. It's a true extortionate scam. Newegg, however, took the long view, and recognized that if it refused to give in and refused to settle, eventually the trolls would realize that it simply wasn't ever worth suing Newegg. Newegg even made "Never Settle" t-shirts to advertise its strategy to trolls. And, eventually, it worked. Though it did involve a few costly patent trials, patent trolls mostly learned to steer clear of Newegg.A few years ago, Cloudflare got its first patent troll lawsuit, and decided to take Newegg's never settle strategy and kick it up a notch or three. Instead of just saying it wouldn't settle, Cloudflare set out to completely destroy the patent troll who sued it (an operation called Blackbird Technologies). In response to the lawsuit, Cloudflare launched something called Project Jengo, in which it sought to crowdsource prior art not just for the patent used against Cloudflare, but every single patent in Blackbird's portfolio -- and to hand out cash awards to those who found such prior art. It also went after the lawyers at Blackbird for violating legal ethics rules.Cloudflare's campaign against Blackbird was a huge success. The company easily won in court and Blackbird became a shell of its former self. Prior art was discovered on some of its patents, the firm filed way fewer troll lawsuits, and it appeared that its staff had dwindled.Patent troll Sable Networks perhaps should have researched all of this before suing Cloudflare over a sketchy patent that Cloudflare doesn't infringe on. However, Sable Networks chose poorly.

Even though Florida didn't see many of the anti-police violence protests that spread across the nation in the wake of the George Floyd killing, its legislature and its governor have apparently decided protesters have it too easy. Governor Ron DeSantis feels the best approach to handling people fed up with police brutality and their lack of accountability is to throw more protesters (and rioters) in jail more often, and for longer.Here are just some of the expansions signed into law by DeSantis:

The Federalist Society this week released an interesting and well-produced video all about the Section 230 debate. Whatever you might think about the Federalist Society, the video is worth watching. The video does not take a position on 230 but basically presents it as if there are two equally competing visions of 230 -- one in which it's good and one in which it's a problem. And if you just watch the video, you might think that this is because there are just disagreements about how 230 works and the impact it has on speech online. But that's only because one side of the debate is completely making shit up and the other is being accurate.In this case, the person making up shit about 230 is... Senator Ted Cruz. Cruz has been lying about Section 230 for years. Indeed, I think we can trace most of the blatant falsehoods about 230 that seem to come from Republicans to Ted Cruz. It seems like 3 years ago, Cruz decided that it would be a fun culture war thing to "attack big tech" and lying about 230 seemed like the easiest way to do so. Other politicians (most notably Josh Hawley) have since followed him down that path, but it's Cruz who seems to be patient zero of the GOP's "making shit up about 230." Of course, what's perhaps most ironic is that everything that Cruz has been falsely saying about 230 conflicts directly with the other stuff he made up about net neutrality back when that fight was on.Back in 2014, when the FCC finally put in place reasonable net neutrality rules, Cruz flipped out and insisted that simple rules against throttling or blocking access to websites was the government taking over the internet. Now, with 230, he insists (falsely) that 230 had some built in neutrality requirement, and he's mad that it's no longer there. He's wrong on... all of this.Let's dig in:

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To be clear, former T-Mobile CEO John Legere did some amazing things with T-Mobile. After regulators blocked AT&T from acquiring T-Mobile in 2011 (which wound up being a very good thing), he took the $3 billion break up fee and turned an also-ran into a major thorn in the side of AT&T and Verizon. Legere accomplished this by (gasp) generally treating consumers well, eliminating annoyances like long-term contracts, sneaky fees, and many other telecom industry mainstays. He also did it by embracing an entertaining, wise ass persona in an industry not known for having a sense of humor.But then, T-Mobile owners Deutsche Telekom decided it would be a good idea to throw all of this away by pursuing a $26 billion merger with Sprint. That suddenly forced Legere into a position where he had to behave exactly like the companies he'd just spent a decade making fun of. That included lying a lot about the benefits of the deal as the company tried to sell the Trump administration on the competition and job-eroding megadeal (that wound up not being particularly difficult, since the industry-allied Trump FCC and DOJ didn't care about hard data).Technically, Legere only worked for three months in 2020, but nabbed a $137 million exit package according to new data:

A pretty hilarious turn of events has led to Cellebrite's phone hacking tech being hacked by Signal's Moxie Marlinspike, revealing the tech law enforcement uses to pull data from seized phones is host to major security flaws.According to Marlinspike, the Cellebrite came into his possession thanks to some careless package handling.

This week, our first place winner on the insightful side is That One Guy with a response to Josh Hawley's politically-motivated call to break up companies:

Five Years AgoEU regulators were busy this week in 2016, trying to force YouTube to be more like Spotify and going after Google for antitrust regarding Android, which prompted Microsoft to drop all its own antitrust complaints about Google and vice versa, while both companies claimed the timing was just a coincidence. The FISA court was still uncovering surveillance abuses by the feds while the EFF was suing the DOJ for refusing to release FISA court documents, and another court said that national security letters were constitutional under the USA Freedom Act. Meanwhile, the Supreme Court said it wouldn't hear the Authors Guild's appeal over the Google Books ruling, prompting the Guild to whine.Ten Years AgoRighthaven was having a bad time this week in 2011, with a judge slamming their legal tactics and unsealing the document that revealed "sham" copyright assignments to the company — while, in another state, Righthaven was continuing its self-destruction by directing their petulant tone at the judge. It wasn't over, either, as yet another court told Righthaven its demand for domain names was silly. And another similar company, Digiprotect, was also getting dinged by a judge. On the other hand, one of the RIAA's lawyers in the Limewire case was recommended as a federal judge.Fifteen Years AgoThis week in 2006, people were beginning to notice how much free product placement Apple was getting in movies and television shows, high-price domain names were back and we wondered where the skepticism was, and AT&T was pretending to love competition. We looked at the story of how NTP kept prior art on its wireless email patent quiet, and we were irritated at the fact that the Patent Office needed to be told to look online for prior art on patent applications. More and more states were pursuing driving-while-yakking regulations without paying attention to the broader data about distracted driving in general. And the Supreme Court declined to hear Jerry Falwell's typosquatting case.

Late last year, while the COVID-19 pandemic was gearing up to hit its peak here in the States, we wrote about one college student and security researcher taking on Proctorio, a software platform designed to keep remote students from cheating on exams. Erik Johnson of Miami University made a name for himself on Twitter not only for giving voice to a ton of criticism Proctorio's software has faced over its privacy implications and inability to operate correctly for students of varying ethnicities, but also for digging into Proctorio's available source code, visible to anyone that downloads the software. But because he posted that code on PasteBin to demonstrate his critique of Proctorio, the company cried copyright infringement and got Twitter to take his tweets down initially as a result, before they were later restored.But if Proctorio thought that would be the end of the story, it was wrong. The EFF has now gotten involved and has filed a lawsuit against Proctorio in an effort to end any online harassment of Johnson.

Summary: Google has long been responsive to court orders demanding the removal of content, if they're justified. Google has fought back against dubious orders originating from "right to be forgotten" demands from outside the US, and has met no small amount of DMCA abuse head on. But, generally speaking, Google will do what's asked if there's a legal basis for the asking.But not everyone approaching Google acts in good faith. First, there are any number of bad actors hoping to game the system to juice their Google search rankings.And, beyond that, there are any number of shady "reputation management" firms willing to defraud courts to obtain orders demanding Google remove content that reflects poorly on their clients.For a couple of years, these bad actors managed to make some search engine optimization (SEO) inroads. They were able to fraudulently obtain court orders demanding the removal of content. The worst of these companies didn't even bother to approach courts. They forged court orders and sent these to Google to get negative listings removed from search results.This new system opportunistically preyed on two things: Google's apparent inability to police its billions of search results and the court system's inability to vet every defamation claim thoroughly.But the system -- not the one operated by the US government or Google -- prevailed. Those targeted by bogus takedown demands fought back, digging into court dockets and the people behind the bogus requests. Armed with this information, private parties approached the courts and Google and asked for content that had been removed illicitly be reinstated.Decisions to be made by Google:

Last year, the EU's top court threw out the Privacy Shield framework for transferring personal data between the EU and US. The court decided that the NSA's surveillance practices meant that the personal data of EU citizens was not protected to the degree required by the GDPR when it was sent to the US. This was the second time that such an agreement had been struck down: before, there was Safe Harbor, which failed for similar reasons. The absence of a simple procedure for sending EU personal data to the US is bad news for companies that need to do this on a regular basis. No wonder, then, that the US and EU are trying to come up with a new legal framework to allow it, as this CNBC story notes:

A decade ago we wrote a post about what we called Schrodinger's Download, which was that the big companies in the music space would refer to digital downloads as a sale or a license in varying ways depending on which benefited them the most. This was most evident in lawsuits between artists and labels, especially with contracts signed in the pre-digital era, where the royalties for "licensing" were much higher than the royalties for "sales." In those cases, the labels tried to claim that MP3 downloads were "sales" in order to pay lower licensing fees -- but, on the flip side, when there were cases about reselling those files, suddenly the labels would insist that wasn't allowed, since it wasn't actually a sale, but a license.And, of course, over the years, we've seen this play out in many ways -- especially with our never ending series of posts on how you don't own what you've bought, as more and more companies try to use technology and DRM to retain control over things you've "purchased." Last year, we wrote about someone suing Amazon for claiming that she had "purchased" movie downloads, but the fine print showing that she was merely "renting" them. The argument was that this was false advertising. That case is still going, but what we hadn't realized was that someone else had filed a very similar case against Apple, arguing the same thing. And, yes, it's the same lawyers on both cases...And even though the Apple case was filed three months after the Amazon case, it's actually seen more progress. This week the judge denied Apple's motion to dismiss (first spotted on Courthouse News), saying that there's enough of a case to move forward. Apple tried to argue that the harm here is merely speculative. It hasn't actually removed the plaintiff's downloads. But the court says that Apple's wrong about that:

When 17-year-old Darnella Frazier started recording video of Minneapolis policeman Derek Chauvin murdering George Floyd, she initiated a series of historic events that led to Chauvin’s conviction.But for all the discussion of technology following her actions – how cellphones enable video recording of police abuse and how social media encourages instantaneous mass distribution – the key factor in George Floyd’s name becoming globally famous may not be Frazier’s cellphone. It may not even be social media.It was the culture and tradition of U.S. civil liberties and media freedom that played an essential role in protecting Frazier’s ability to record and retain possession of the video, and the capability of commercial corporations to publish it.Had the same events transpired in China, Saudi Arabia, Russia, Singapore or elsewhere, nobody might ever have learned of Floyd’s fate.The constitutional protections enjoyed by U.S. citizens empower and encourage everyday Americans to discover, record, expose and distribute evidence of governmental malfeasance. This freedom to publicize crimes committed by state actors creates the possibility of improving policing and making the administration of justice more sensitive, effective and responsive.But it also threatens to undermine state authority, which is why so many U.S. politicians remain wary of such freedoms.To understand how the United States developed this unconstrained news culture, you need to return to Minneapolis, to a moment one century ago, when a newspaper exposed police corruption and provided a key turning point in protecting the American public’s right to expose governmental crimes.Press abuse vs. press limitsJay Near always knew there were bad cops in Minnesota.The publisher wrote about them in The Saturday Press, his Minneapolis newspaper. But Near called the cops “gangsters,” and he railed against what he claimed was a Jewish cabal controlling Minneapolis. Jay Near was a racist crank who published baseless conspiracy theories.Today, Near is remembered – if at all – for his legendary Supreme Court victory in the 1931 U.S. Supreme Court decision known as Near v. Minnesota.In 1927, Near and his business partner were prevented from publishing because The Saturday Press was deemed in violation of Minnesota’s “Public Nuisance Law.” That law outlawed publishing or circulating “obscene, lewd, and lascivious” or “malicious, scandalous and defamatory” materials.Near sued to lift the prohibition, and his case made it to the Supreme Court, where his publication rights were ultimately vindicated. Near v. Minnesota opened up the modern version of press freedom we recognize today. Calling the Minnesota Public Nuisance Law “the essence of censorship,” a five-justice majority struck it down.Essentially, the high court ruled that the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible. The Court had no illusions – the judges were well aware The Saturday Press published inflammatory misinformation. But in assessing the costs of censorship versus the benefits of liberty, the majority sided with the racist crank against the state of Minnesota.Making the connectionThe expansive media freedoms originating in the First Amendment, and later enshrined in Supreme Court decisions like Near v. Minnesota, would continue into the internet age with Section 230 of the Communications Decency Act. That’s the law that allows people to post freely on internet sites while protecting the internet companies from legal jeopardy caused by those materials.So, for example, defamatory accusations, negligent misrepresentation, intentional nuisance, dangerous misinformation and even content intended to incite emotional distress can be posted without Facebook, Twitter, Instagram or other companies being sued or held civilly liable.For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier – and all citizens who follow in her footsteps – to stand up to the government in ways previously unimaginable. A portion of the front page of The Saturday Press, Oct. 15, 1927, published by Jay Near that figures prominently in U.S. press freedom law. Minnesota Historical SocietyBut some stand ready to abandon these long-established legal and cultural protections.Had Minnesota’s Public Nuisance Law survived Near’s challenge, it very well might have prevented publication of Frazier’s video. Those images could easily have been deemed “obscene,” or a “malicious” or “scandalous” incitement to violence.But U.S. states can’t outlaw media organizations as “public nuisances.” Yet tensions over media freedom now exist that have the potential to lead to limits on the public’s ability to record and distribute police crimes.Joe Biden and Donald Trump don’t agree on much, but one idea they have both publicly endorsed is eliminating Section 230 of the Communications Decency Act of 1996.Critics who want to get rid of Section 230 regularly blame it for the plethora of “fake news,” misinformation, and hate speech that infects our web and social media. Because Twitter, Facebook, TikTok and others can’t be held liable for users’ content, the companies have felt little pressure, until recently, to moderate the blizzard of material they publish every second.The cost of limiting the pressBut media freedom is always a double-edged sword. Without Section 230 protection, social media companies would likely behave cautiously to minimize even the hint of legal jeopardy. Frazier’s video, in such a world, might be deemed too risky to distribute.The immunity provided by Section 230 encourages YouTube, Facebook, Twitter and others, to stimulate users to post pretty much any news, information or video their users deem newsworthy or interesting.The repeal of Section 230 could result in a system in which inflammatory or provocative news or images that might outrage or incite people could be deemed too socially destructive or disturbing of the peace by internet companies. And this could include images and video such as the murder of George Floyd.The media freedom secured by Jay Near when he sought to expose police corruption in Minneapolis eventually assured the conviction of a criminal Minneapolis policeman.The idea that U.S. citizens can report, publish, print and disseminate information that might be terribly damaging to authority is a radical one. Even within the United States, this freedom is often considered too expansive. In Oklahoma, for example, a new bill criminalizing the filming of police officers recently passed both houses of the state legislature, and elsewhere the rights of citizens and journalists to record police behavior occurring in public are regularly violated.The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people’s rights promises to foster an active, aware and engaged citizenry – and that violating those rights by repressing or censoring information is deeply anti-American.Michael J. Socolow, Associate Professor, Communication and Journalism, University of Maine. This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Ah, this one takes me back to the early days of Techdirt, when the biggest nonsense we were writing about was giant corporate bullies threatening (or in some cases suing!) over so called "Sucks Sites" (that's an article from almost 20 years ago!). The issue was that people who were upset with a particular company would register the domain of CompanySucks.com to (usually) put up a protest site. The company (and its lawyers) would then threaten to sue the individual for trademark infringement. There were some mixed rulings over those sites, but in general most have decided that sucks sites are not trademark infringement, and are protected under a variety of theories -- including a lack of any possible confusion and because they're nominative fair use.You'd have hoped that, by now, big company lawyers would recognize all of this. Apparently not Facebook's. Now, to be fair, as we recently discussed, for companies like Facebook, often they carefully police domains that make use of similar URLs in order to cut off sketchy phishing and scam sites. But it's one thing to go after such scammers... and it's another to go after someone who is obviously engaging in criticism.Enter: DontUseInstagram.com, created by Paul Kruczynski.The site now is designed to pretty much do what it says on the tin: give you reasons why you shouldn't use Instagram. Whether or not you agree with that messaging, it's clearly not infringing on Facebook/Instagram's trademarks. Someone should probably tell Instagram's lawyers. Because they sent a threat letter. In fact, they sent this threat letter before he'd even launched anything at the site, basically trying to intimidate him out of the site before he'd even done anything with it.

You might recall how the Wisconsin GOP, with Donald Trump and Paul Ryan at the head of the parade, struck what they claimed was an incredible deal with Foxconn to bring thousands of high paying jobs to the state. Initially, the state promised Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. The amount of political hype the deal generated was utterly legendary, helping market Trump as a savvy dealmaker who'd be restoring technological greatness to the American Midwest.Years later, and the deal continues to be exposed as little more than a taxpayer-funded bullshit parade.After several years of reports making it very clear Foxconn never intended to live up to its promises (and a lot of half-truths and tap dancing by Foxconn), it finally acknowledged this week that the project was being dramatically scaled back:

We tend to talk about many of the nuanced and intricate problems with our current copyright culture, but the 10,000 foot view of the problem is essentially that copyright tends to make culture disappear. It can do this in lots of ways, but one of the least recognized of them is simply that with a culture of copyright maximilism, many content producers simply don't release the content they want to release it out of fear of the reprisal that has been seen in other cases.That's something of the case when it comes to 8-Bit Theater releasing a book featuring the entirety of the comics that were released, just without the pictures. Instead, it's just a "script" release. Why? Well, because those pictures are based on old Final Fantasy assets.

On January 9, 2020, facial recognition tech finally got around to doing exactly the thing critics had been warning was inevitable: it got the wrong person arrested.Robert Williams was arrested by Detroit police officers in the driveway of his home. He was accused of shoplifting watches from a store on October 2, 2018. The store (Shinola) had given Detroit investigators a copy of its surveillance tape, which apparently was of little interest to the Detroit PD until it had some facial recognition software to run it through.This was the dark, grainy image the Detroit PD felt was capable of returning a quality match:That picture is included in Williams' lawsuit [PDF] against the Detroit Police Department. Even in the best case scenario, this picture should not have been uploaded to run a search against. It's low quality, poorly-lit, and barely shows any distinguishing facial features.What makes it worse is that all facial recognition AI -- across the board -- performs more poorly when attempting to identify minorities. That's the conclusion reached by an NIST study of 189 different algorithms. It's not just some software. It's all of it.The Detroit PD chose to run with that photo. Then it decided the search results it had were close enough to probable cause to effect an arrest, even though the software used stated clearly search results should not be used this way. The search was performed by the Michigan State Police from the grainy image submitted by the Detroit PD. A report was returned but investigators were cautioned against trying to turn this into probable cause:

Podcasting has been a rare recent example of a new offering built on open protocols and standards (mainly RSS and MP3), that wasn't entirely co-opted by one giant corporate entity (even if some have tried). However, there have been some worrying signs of where the podcasting market is moving. For a few years now, we've been warning that the world would lose a lot if podcasts move from open standards and protocols to more proprietary solutions -- and yet Spotify, for one, has been moving heavily in that direction over the past few years.And, as Chris Messina pointed out recently, it appears that both Spotify and Apple are looking to move past RSS in how they push podcasts -- though he's unsure if it means that podcasts are dying -- or about to go through a renaissance.

One of the most disgraceful aspects of the EU Copyright Directive saga was the shameless way its supporters swore that upload filters would not be required -- despite the evident fact that there was no other way to implement the new law's requirements. And indeed, once the legislation was passed, France lost no time in pushing for upload filters. Worse, its own implementation ignored what few protections there were for users' fundamental rights. Fortunately, back in 2019, the Polish government made a formal request for the EU's top court, the Court of Justice of the European Union (CJEU), to throw out upload filters. That is still grinding its way through the EU's legal system, but its mere existence could play an important role as EU member states grapple with the impossible task of passing national laws to implement the EU Copyright Directive.To help them do that, the European Commission said it would release guidance on how to reconcile the contradictory requirements of upload filters and user rights. As a post by Communia accompanying an open letter to the Commission (pdf) explains, the first draft made it clear that national implementations of Article 17 -- upload filters -- must contain built-in protection that limits the automated blocking of uploads to situations where material is "manifestly" infringing. Since that promising start, there has been no sign of the final guidance. Instead, as Communia notes, there has been lots of lobbying against user rights:

McDonald's shake/ice cream machines are notoriously flaky. The most common response to requests for ice cream are sullen statements that the machine is down. It's so much a part of popular culture, an enterprising individual crafted a bot that lets people know which machines are up and which machines are going to be a waste of their time.To be sure, the shake/ice cream device used in almost every McDonalds is a complicated piece of machinery. Not only does it need to provide two different kinds of ice cream-related products from the same machine, but it must do it while operated by employees whose fast food careers can be measured in days, if not hours.But there's got to be a better way. And there probably is. But the company that makes the machines -- Taylor Restaurant Equipment -- doesn't want there to be a better way. It wants it to be Taylor's way... or no way at all.A captured market is always a great thing... for product makers. As long as you don't care about end users -- whether they're people seeking ice cream or people wondering why they can't use their scanner because they're out of cyan ink -- you can corner a market and let the endless revenue streams wash over you.A lot of companies have discovered this one simple trick: the best captive audience is one you hold hostage. That's how Taylor runs its ice cream machine business. It has hooked up with major players in the fast food industry and has limited franchisees' ability to handle any issues with their equipment on their own.When the shake machine is down, no one onsite can fix it. That goes beyond planned obsolescence to planned incapacity. Wired has a fascinating article that touches on how Taylor has muscled everyone else out of the market by making its machines solely beholden to Taylor techs. (Please go read it. It is worth every minute of your time.) This means every franchisee must sign a lengthy service agreement if they expect to provide this product to customers on a far-from-regular basis.Some enterprising hackers found out how to bypass the built-in problems Taylor inserts into every machine it sells. There's a code that allows access to the inner workings of the machine -- one that can also help translate its cryptic error messages. If franchisees had this information, they could do their own troubleshooting and repairs, rather than paying Taylor techs exorbitant amounts to, I don't know, press the reset button to allow the resumption of service.

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A few weeks back, news broke that some hackers were offering up personal information on over 500 million Facebook accounts (there had been some earlier reports about this data availability as well). It was even highlighted that some of the "personal information" apparently included Mark Zuckerberg's phone number (though it's unclear if that data was confirmed to be accurate or not).After there was more reporting on this data being available, some people noticed that Facebook had not alerted people about it. Various data breach laws require notification to effected users of a data breach, and so Facebook's decision raised some eyebrows. Facebook's explanation for not notifying users is that the company did not consider this to be a breach, but rather was done via scraping of information that people put on their own profiles:

We've covered for a while how consumer location data is consistently abused by telecom providers, app makers, stalkers, debt collectors, people pretending to be law enforcement, and pretty much any idiot with a nickel and a dream.Of course that also extends to government agencies like the IRS, CBP, and ICE, which have increasingly been buying access to your daily location habits so they can skirt around pesky warrants. The government still needs a warrant if it targets individuals, but nothing stops the government from hoovering up vast swaths of movement data en masse. Until now.A new bill backed by Senators Ron Wyden and Rand Paul, and Reps. Jerry Nadler and Zoe Lofgren, attempts to put this loophole to bed permanently. Bluntly dubbed the Fourth Amendment Is Not For Sale Act (see: summary or full text), the law would ban law enforcement agencies from buying data from controversial facial recognition firm Clearview AI, as well as force agencies to obtain a warrant before sourcing location data from brokers. In a statement, Wyden said the bill would close loopholes in both the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that allows governments to buy consumer location data without a warrant:

It's no secret that Chanel, the famous French luxury brand most notable for concocting things that make us smell better, is also a voracious protector of its trademarks. As evidence for this, one needs only to recall that the company once bullied a 2-person candy purveyor over its use of the number "5". The point is, when Chanel comes a-calling complaining about trademarks, you really need to view it all with narrow eyes.Chanel's years-long trademark row with electronics company Huawei is no different. This story begins way back in 2017, when Huawei attempted to register a logo for its hardware division with EUIPO.

Summary: Vimeo is a video hosting site that was originally founded in 2004 as an offshoot of CollegeHumor. IAC acquired the company early on and it tried to position itself as an alternative to YouTube that was more for creators. In the early years, one thing that was common on Vimeo was so-called “lipdubs.” These were music videos often made by groups of people lipsync’ing to popular songs.Vimeo itself effectively launched this trend with its staff doing a lipdub of the Harvey Danger song “Flagpole Sitta.” At the end of the video, you hear one Vimeo employee say “ we just made a million dollars, people!” And, indeed the phenomenon helped establish Vimeo’s place in the market. Soon there were many other lipdubs all over Vimeo.However, lipdubs also caught the attention of the music industry, which noticed that the songs in these lipdubs had not been licensed. In 2009, EMI subsidiary Capitol Records sued Vimeo for copyright infringement. Like many web services hosting user generated content, Vimeo relied on the safe harbors of the Digital Millennium Copyright Act (DMCA) in the US, which holds that if you meet certain conditions, you cannot be held liable for user uploads of infringing works.Capitol Records argued that Vimeo was not protected under the DMCA for a variety of reasons, starting with the fact that it uploaded its own lipdub, which then effectively encouraged others to upload similar lipdubs. The complaint noted that the DMCA only protects against user uploads, not ones done by the company itself. It also claimed that since Vimeo employees were seen to have “liked” or commented on many other lipdubs, often speaking approvingly of the videos, it also meant that the company had so-called “red flag knowledge” of the infringing content -- which might also remove the DMCA’s safe harbor protections from the company.Decisions to be made by Vimeo:

Facial recognition tech is plagued by bias, most of it unintentional. That's why it tends to perform more poorly when attempting to recognize minorities and women. Law enforcement doesn't tend to view these problems as bugs since it, too, operates with many of the same biases. But these are usually the byproduct of faulty inputs, which can be exacerbated by choices made by end users.In China, the bias is the point. The Chinese government's persecution of its Uighur population has seen local tech companies tasked with providing surveillance tools that single out Uighur Muslims so the government can more efficiently control them.Huawei is building a system that provides the government with "Uighur alarms" whenever a suspected Uighur passes in front of the government's millions of cameras. According to Huawei, this is still in the testing phase, which means nothing more than there's a plan for it to be put to use. Even if it's no more accurate at identifying Uighurs than it is at identifying criminals, it will likely be good enough to put to real-world use. Collateral damage to innocent residents isn't the sort of thing that slows surveillance rollouts in China.China wants even more facial recognition power. And it has several partners willing to help it out, even if it means the tech will be used to oppress people, rather than protect people from things like crime and security threats.

The NY Times has a big (and quite interesting) article this week about how we've supposedly "reached a global tipping point" on "tech regulation." And if you look around, it may feel that way. And, sure, it's easy to point to lots of examples of tech regulation happening around the globe, as the article does:

This shouldn't need to be said, but The Simpons is satire. It often makes fun of people. In a recent episode it sorta, kinda mocked the singer Morrissey, as most of the episode was about Lisa's obsession with a band called "the Snuffs" and its moody lead singer "Quilloughby" (voiced by Benedict Cumberbatch). It was pretty clearly satirizing Morissey, and exaggerating a bunch of character traits many people associate with Morrissey, and mixing in some stereotypical character traits associated with washed up old rock stars. I can understand why some people might not like being gently mocked on a popular TV show, though I think some well adjusted folks might recognize that even being relevant enough to be mocked on The Simpons is probably a nice nod towards your cultural relevance, but apparently not Morrissey.After his manager got all pissy and accused the show of being racist for its portrayal of Morrissey (?!?). Morrissey himself then posted a bizarre rant saying he wanted to sue and that there's no free speech any more and none of it makes any sense at all.

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This isn't an endpoint. This is only a beginning. This is one small step forward for accountability. It doesn't change the police culture that not only allows, but encourages, this sort of force deployment. But it does send the warning that juries may not be as deferential to police officers as they've been historically.To successfully prosecute a cop, you have to want to do it. Too many prosecutors would rather not expend the effort needed to hold their comrades-in-arms accountable for their actions. But every so often, a cop engages in such a callous display of violence, even those normally on the side of law enforcement can't condone their actions.That's what happened to former-officer, current-convicted-murderer Derek Chauvin. Thanks to bystanders and their recording devices -- especially then-17-year-old Darnella Frazier, whose recording of the 10-minute ordeal was instrumental in building a case against Chauvin -- this one cop wasn't able to escape the consequences of his actions. For nearly 10 minutes, Chauvin pressed his knee into George Floyd's neck. He ignored Floyd's increasingly-distressed statements that he couldn't breathe. He ignored a fellow officer who informed him he could no longer detect a pulse. He remained in place, looking for all the world like the personification of every racist policy this nation has enacted, until George Floyd was dead.And for that callous and reckless display of power, Derek Chauvin will be going to jail. The Minneapolis jury convicted him of all three counts. Here's the recording of that moment, which cathartically includes the cuffing of Chauvin by sheriff's deputies.There are three counts, but Chauvin will only be sentenced for the most serious charge: second-degree unintentional murder. That's perhaps still unsatisfactory (nothing about Chauvin's actions appeared to be "unintentional") but it's better than we've come to expect from our criminal justice system when it's forced to address the actions of law enforcement officers.Let's not forget that without the recordings made at the scene by citizens and nearby surveillance cameras, it's likely no charges would have been filed.This is how the Minneapolis PD originally described a white cop pressing his knee into the neck of an unarmed black man until he was dead:

A stash of public records recently obtained by BuzzFeed shows far more law enforcement agencies have experimented with Clearview's facial recognition software than previously acknowledged. The searchable data shows Clearview is still something law enforcement is interested in experimenting with. And there's probably more to this story, given that nearly 1,200 agencies refused to respond to BuzzFeed's requests.Clearview boasts something most other facial recognition tech companies can't: billions of images and a host of other personal info attached to those images. Unlike other databases that usually draw from public records like mugshot databases and DMV files, Clearview scrapes the web to compile its database, pulling photos and other info from the billions of public posts/accounts hosted by platforms like Twitter, Facebook, and LinkedIn.As the amount of input increases, so does the margin of error. But Clearview routinely overstates its accuracy. Last year, it claimed it "passed" the ACLU's facial recognition test. The ACLU disputed this claim, pointing out Clearview had not actually run the test as designed and that its software used things not commonly used by law enforcement, like clear photos and a database full of scraped images and personal info. Clearview's ability to properly recognize photos of senators and Congressional reps wasn't a sign of success, but rather the end result of playing with a loaded deck that linked clear, high-quality photos to Congressmembers' social media accounts and official websites.But the experimentation continues, urged on by Clearview's baseless claims of miraculous facial recognition technology. Jake Laperruque -- writing for the Project on Government Oversight (POGO) -- points out the company has routinely overstated the tech's effectiveness.

Well, well, this is certainly moving fast. Regular readers will recall that we've been having a conversation lately about how both customer purchases and video game as art are generally preserved in the face of platforms shutting down the hosting servers that keep all of this data. With a specific eye towards art preservation, this conversation has been largely propelled by Sony's recent announcement that it would be shutting down support for the PlayStation Store for the PlayStation 3, Vita, and PSP consoles. The consternation over all of this only got worse when it was noticed that Sony's batteries on the PS3 and PS4 consoles have a weird little time-sync check-in that has to occur with the PlayStation Network if they're replaced, or else those consoles will be unable to play many, in some cases all, games.Phew. Anyhoo, while these revelations have been ongoing over the past few weeks, Sony suddenly announced that it was kicking the can down the road by reversing its decision to stop supporting the PS3 and Vita PlayStation Stores.

It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

After a few cross-post episodes, we're back with a brand new conversation, and it's all about a big subject that intersects with the majority of what we cover here at Techdirt: rights. In his book How Rights Went Wrong, Columbia Law professor and Constitutional scholar Jamal Greene proposes a new way of thinking about rights and how they interact, and he joins this week's episode to discuss this paradigm-shifting idea that challenges many preconceptions about the subject.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.

Minneapolis, Minnesota was still on edge when a cop shot another unarmed black man. The trial of former officer Derek Chauvin is still underway. Last May, Chauvin knelt on the neck of George Floyd for over nine minutes -- including two minutes after another officer was unable to detect a pulse.With this hovering in the air, another senseless killing by an officer set everything off. Again. 26-year-veteran officer Kim Potter (who served a year as the head of the police union) turned a "routine traffic stop" into a homicide when Daunte Wright broke free from another officer and jumped back into his car. Potter yelled "Taser! Taser! Taser!" while pointing her gun at Wright. She shot him once, which was enough to kill him. Potter's service weapon was holstered on her right side. The Taser she supposedly thought she had in her hand was holstered on her left. The Taser was bright yellow. The gun she shot Wright with was not.Officer Potter resigned but it didn't change anything. She has been arrested and charged with second-degree manslaughter. Potter's error -- which seems completely inexplicable given the location, distance, color, and weight of the weapons she confused -- turned Brooklyn Center, Minnesota into ground zero for more protests and riots. And the Chauvin trial continues, promising more of the same if the end result is unsatisfactory.More of the same is also being observed by protesters and the journalists covering them. Protests around the country following the George Floyd killing were greeted by police violence. Journalists and legal observers were often targeted with the same crowd control efforts deployed against protesters and rioters. In far too many cases, officers (especially federal officers sent in to "help") appeared to specifically target journalists for abuse, including harassment and close-range deployments of pepper spray, tear gas, and other crowd control efforts.This targeted harassment of well protected First Amendment activity has resulted in lawsuits. So far, the government has always come out on the losing end. The same goes for Minnesota, where a judge has just approved a restraining order forbidding officers from targeting or arresting journalists. Here's Tony Webster's coverage of the mid-protest litigation:

Parler is coming back to the Apple iOS app store. As you'll recall, Apple (and Google) removed Parler's app from their mobile app stores back in January, saying that the app ran afoul of their requirements that platform apps must have reasonable content moderation policies. Parler, of course, falsely claimed not to do any moderation, but the company's then CEO admitted that he enjoyed banning leftist trolls from his site.After Parler was banned, there was a lot of wasted air screaming about how this was "anti-competitive" and "biased" against conservatives, and all of that was utter garbage. Google and Apple have policies in place, and if you violate them, you can lose access to Google's and Apple's platforms. And, of course, it's since come out that there was quite a battle inside Parler regarding its moderation strategies. While the founder and former CEO, John Matze, had promised more moderation when the service came back, in a lawsuit that Matze has since filed against the company, he claims that he was fired for trying to put in place that moderation policy.When Parler came back online with new hosting in February, the temporary CEO Mark Meckler had claimed that the service was coming back with AI and human moderators to deal with trolling, but insisted that it would not remove "content that attacks someone based on race, sex, sexual orientation or religion."It's unclear how much has changed, or how effective such a filter will be, but Apple has apparently decided it's good enough. In response to a demand letter from Senator Mike Lee and Rep. Ken Buck, Apple has said that it will reinstate Parler to the iOS app store. The letter explains, in great detail, how Parler was not following Apple's developer policies, leading to the ban, and how it has now come into compliance.

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Trump supporter and pillow manufacturer Mike Lindell was among those sued for defamation by Dominion Voting Systems over weeks of wild allegations about voter fraud that followed Donald Trump's loss at the polls in the 2020 election. Mike Lindell and his company, MyPillow, joined such luminaries as Rudy Giuliani and former Trump legal team member Sidney Powell as a recipient of a billion-dollar libel lawsuit.Now, Mike Lindell is fighting back. He's attempting to dismiss Dominion's lawsuit, claiming his alleged libel was nothing more than heated commentary touching on important political issues. More credibly, he's asking his company to be dismissed from the lawsuit because his company did not make any of the statements Dominion is suing over.Less credibly, he's filed a lawsuit [PDF] of his own against Dominion, claiming that naming his company as a defendant in a lawsuit somehow violates his company's rights. Considering this suit is only supposed to be about Dominion's "silencing" of MyPillow, the complaint spends a lot of its run time trotting out supporting evidence for the claims about Dominion Lindell says his company never made.That leads to some really weird assertions by Lindell, like the claim that naming a company in a lawsuit is an attempt to silence anyone associated with MyPillow and/or allegations of election fraud.

Earlier this year net neutrality opponents (read: US telecom monopolies and those who love them) used veterans as a cheap prop to unfairly demonize California's shiny new net neutrality law. California's net neutrality law bans "zero rating," or the act of imposing bullshit, arbitrary usage caps, then exempting an ISP's own content (or the content of any individual organization or company) from them. The reason for the ban? Caps are artificial constructs, and exempting select content from them tilts the internet playing field in favor of an ISP or deep-pocketed companies.The prohibition is a good thing, in that it thwarts companies like AT&T or Comcast from exempting their own streaming content from caps, while still penalizing customers of competing streaming services (something AT&T has been doing for several years). It also prohibits letting a company like ESPN pay AT&T to exempt its own content from caps and obnoxious overage fees, ensuring they only apply to smaller sports media startups or competitors. It's an issue of fair competition.Last month, the telecom industry clearly leaked a letter to Politico sent by two anonymous broadband providers (I believe to be T-Mobile and Verizon) to the VA, warning them that California's net neutrality law might ban veteran access to a healthcare app dubbed VA Video Connect. The issue: VA Video Connect is exempted from wireless and fixed broadband usage caps, providing veterans with a little financial relief for using it. So it technically violates the California law (not that California enforcers would actually act on it), and the VA was simply asking questions about what happens next.But here's the thing: usage caps are bullshit constructs in the first place. They serve no technical function, and aren't helpful in managing network load or congestion. They're created by ISPs as a way to not only nickel-and-dime consumers and competing businesses, but to put themselves in an unwarranted position of control. As such, the whole model of exempting some content from such arbitrary restrictions is equally bullshit. And while the VA agreement does violate California's law, the workaround is simple: simply give veterans a discount off their entire mobile bill. Problem solved.But because this is difficult for Luddites to understand, the GOP and its political operatives quickly pounced on the issue to exploit it, falsely claiming that "veterans were being cut off from essential healthcare." That message soon popped up everywhere in GOP-friendly news outlets like the Wall Street Journal and Fox News, among telecom backed think tanks, and in the mouths of FCC Commissioners like Brendan Carr. As somebody who's covered telecom for longer than I'd like, it's clear the entire thing was coordinated by industry lobbyists/policy wonks from the start.This week, GOP lawmakers sent a letter to FCC boss Jessica Rosenworcel again using this non-issue to try and warn the FCC away from restoring net neutrality: