Techdirt

Correlation is not causation, but if you gear yourself up like you're going to war, chances are you're going to treat the people you're supposed to serve as enemy combatants.This is what police departments have been doing for years. The federal government's 1033 program allows local PDs to help themselves to military surplus, which includes armored vehicles, armored vests, assault rifles, and grenade launchers. Cops have stopped looking like cops and started looking like combat units. The end result appears to be deadlier police forces more interested in shock, awe, and escalation than defusing tense situations.A study of 1033 program use in Georgia by the Atlanta Journal-Constitution shows the more law enforcement gets from the military, the more often it uses deadly force.

As was expected following Ajit Pai's announcement that the FCC would be moving forward with the rulemaking process to reinterpret Section 230 of the Communications Act in response to a petition from NTIA -- instigated by the President's unconstitutional executive order, which came about because Twitter suggested people research the facts,following Trump tweeting blatant disinformation regarding elections and ballots -- the FCC's General Counsel Tom Johnson has released the FCC's legal explanation for how it could possibly have authority here.The shorter answer is that it has no authority here. It hasn't had authority over websites on the internet ever. Indeed, when the Cox/Wyden bill that became 230 was being debated in Congress, they made it quite clear in floor speeches that the intent of their bill was to prevent the FCC from having any authority over websites. That was the point. As Cox said during a floor speech:

As was expected following Ajit Pai's announcement that the FCC would be moving forward with the rulemaking process to reinterpret Section 230 of the Communications Act in response to a petition from NTIA -- instigated by the President's unconstitutional executive order, which came about because Twitter suggested people research the facts,following Trump tweeting blatant disinformation regarding elections and ballots -- the FCC's General Counsel Tom Johnson has released the FCC's legal explanation for how it could possibly have authority here.The shorter answer is that it has no authority here. It hasn't had authority over websites on the internet ever. Indeed, when the Cox/Wyden bill that became 230 was being debated in Congress, they made it quite clear in floor speeches that the intent of their bill was to prevent the FCC from having any authority over websites. That was the point. As Cox said during a floor speech:

The Complete DevOps Courses And Practice Tests Bundle has 12 courses designed to get you up to speed on the latest knowledge and skills a good DevOp needs. Courses cover Docker, Kubernetes, OpenShift, Ansible, Git and GitHub, DialogFlow, and more. It's on sale for $40.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

I know, I know: Trumpists have decided that part of the culture war they need to create for the election is that "big tech" is somehow "censoring conservatives." The narrative is complete bullshit, but the Trump cultists are so deeply bought into it that they'll make themselves look absolutely ridiculous to further it. The latest is that a bunch of Republican officials apparently don't understand Twitter and, in trying to continue this anti-tech culture war, instead demonstrated to the world that they can't read.The issue: a few weeks back Twitter introduced a new feature, popping up a little warning if you go to retweet an article before actually clicking through on it. They had been testing this for a few months, but finally rolled it out widely a few weeks ago. The idea is to try to get people to read through what it is they're retweeting, rather than blindly retweeting it without reading. It's an experiment to try to slow the spread of disinformation and to get people more engaged. I don't know how well it will work, but the logic behind it makes some amount of sense.Except... on Wednesday, prominent Republicans discovered this feature, and incorrectly thought that it was (1) blocking retweets (2) blocking access to links it was actually telling people to click on and (3) only applying this to content that Trumpists liked.The Twitter account for the House Judiciary Committee Republicans tweeted a screenshot claiming that Twitter "put a warning label" on a Sean Hannity link. Of course, in their very screenshot (which it appears they did not read) it clearly says: "Headlines don't tell the full story. You can read the article on Twitter before Retweeting." And then it has a link to "Learn more" which tells people about the policy.So, to be clear: this is not a warning label. It is not applied selectively to Republican content. If they had actually clicked through to the underlying article they wouldn't have seen it. If they had read the label that they screenshotted it clearly explains it. If they had any confusion they could have clicked on the link to get even more information about what's happening.But, no, these geniuses immediately insisted it was a Twitter plot against "conservatives."And the thing is, their idiot followers are buying it. There are tons of replies to the tweet about how Congress needs to take away Section 230 or shut down Twitter because of this... effort to encourage people to read before they tweet.But, of course, it spread quickly. The President's son Don Jr. retweeted someone else showing a screenshot and added three sirens:He also tweeted out a somewhat infamous internet troll claiming that Twitter only does it for the Republican fundraising site WinRed, but not for the Democratic fundraising site ActBlue. This is wrong. All it means is that the troll clicked through to an ActBlue page before trying to retweet, but not the WinRed page. And yet, the troll's supporters are incorrectly claiming this is "election interference."Then we have Rep. Doug Collins from Georgia, currently running to be Senator in Georgia (against Kelly Loeffler, so there are no good choices), who got the same message FOUR TIMES and apparently read it zero times because he took screenshots and retweeted all four times, even though it says quite clearly that all it's asking you to do is to READ a link before you retweet it. And Collins is apparently too stupid to realize that this is happening on any article you have first clicked on. Finally, it's NOT "censorship" in any sense of the word to nudge you towards actually reading the article. It's like the reverse of censorship. It's encouraging you to read the content.I'd really like to believe that there are some competent, level-headed politicians within Congress, but right now the Republicans there seem to be embracing the "we're so fucking stupid that we'll tweet out examples of how we can't read" as a strategic culture war play.

Back in 2015, NY Governor Andrew Cuomo unveiled a Broadband for All pledge the state proclaimed would invest $500 million to ensure statewide broadband access by 2018. The effort was to be funded largely by legal settlements struck with banks after the last recession, with dollar-per-dollar matching pledges by companies promising to deliver speeds of at least 100 Mbps down, 25 Mbps up across the state.The problem (and tell me if you've heard this one before): ample subsidies and five years later and many New Yorkers say they still can't get even substandard broadband. And according to NY's own data on the project, the "matching funds" promised by industry wound up not materializing the majority of the time:

Very few people in law enforcement want to be told the truth. Fortunately for them, those that speak to and for law enforcement are similarly uninterested in speaking the truth. The man at the top of the law enforcement food chain -- Attorney General Bill Barr -- has turned his second tour at the head of the DOJ into a bullhorn for the airing of law enforcement grievances. He encourages their unwillingness to comprehend the damage they've done has led directly to the animosity they're now experiencing. He reflects their unearned outrage, allowing them to feel their anger is righteous.It isn't. But that's not what any law enforcement officers or officials are hearing from Bill Barr. His speech to the Major Cities Chiefs Association contains little more than unbridled support for law enforcement and disdain for the ungrateful public. It's also full of provably wrong assertions. Apparently, if cops must be lied to improve their morale, it's lies they will get, courtesy of the head of the DOJ.Barr opens up by bashing the media for turning cops into villains. He doesn't actually cite the "bad apple" analogy, but it's in there, even if it's unspoken.

We've known for some time that the sorts of automated filters that get applied to various internet-y things are flawed in the extreme. But of all the filters that annoy me the most, profanity filters are the worst. And, no, it's not just because I use curse words like commas. Rather, it's the combination of just how badly this is used, such as how Google thought for years that "bisexual" was a naughty word, along side how nefarious actors can block all sorts of non-profane language just by calling it profane. Add to all of this that a total lack of nuance for identifying so-called "naughty words" regularly causes perfectly non-profane content to be blocked or censored and this all begins to look like an exercise worth giving up.For a great example of that last bit, we need only to look at a recent remote conference conducted by paleontologists that went awry due to a profanity filter.

Summary: Before even the World Wide Web existed, Usenet was a popular gathering place for various niche communities to congregate. In many ways it was similar to what Reddit has become today, except that it was not controlled by any single company. Instead there were a number of newsgroups (like subreddits) and various news servers that could choose to carry whichever news groups they wanted.Each news group was a specialized topic area, so there could be newsgroups for Bob Dylan’s music (rec.music.dylan) or computer languages (comp.lang.lisp). One newsgroup, started in 1990, was alt.tasteless which, as the name suggests, was a newsgroup for sharing offensive content. As its Frequently Asked Questions (FAQ) noted:

I know that it's 2020 and the normal concepts no longer make any sense, but on Monday of this week, quite a story broke that spread quickly through the media world. CNN and New Yorker famed legal analyst Jeffrey Toobin was apparently suspended from both companies, after it was revealed that he was caught masturbating on a Zoom call with New Yorker colleagues, in which they were playing an election simulation game (that appears to be similar, but not identical to the election simulation game we created -- though I swear that ours does not involve any masturbating legal analysts).Shoshana Weissmann noted that this story -- as horrific as it might be -- is also a perfect example of why we have Section 230.

Let's be clear: despite ample rhetoric to the contrary, U.S. broadband has always been a mediocre mess. Despite decades of incalculable industry handouts and political lip service, 42 million Americans (double official FCC estimates) still lack access to any broadband whatsoever. 83 million Americans are trapped under a broadband monopoly. Tens of millions more Americans are stuck with a duopoly, usually a combination of a cable giant and a phone company unwilling to upgrade or even repair aging DSL lines because it's not profitable, quickly enough, for Wall Street's liking.The triple whammy of limited competition, regulatory capture, and Congressional corruption has resulted in the U.S. being utterly mediocre (or worse) in nearly every major broadband metric that matters. Billions upon billions in state and federal subsidies, tax breaks, and regulatory favors are thrown at massive monopolies that fail to live up to their end of the bargain time and time again. Worse, government efforts to track and report on broadband coverage and pricing data has been substandard for a generation, often by intentional design (after all, you don't have to fix a problem you refuse to measure or even acknowledge).As a result, U.S. consumers pay some of the highest prices in the developed world for slower broadband than many overseas nations. Telecom industry customer service is ranked among the worst of any industry in America. Marginalized and low-income communities are most often left disconnected, but even in "tech-centric" cities like San Francisco and Seattle, monopolization and substandard service is often the accepted norm. America's a country that likes to crow about its technological supremacy, yet toddlers in the COVID era have been forced to huddle in the dirt outside of fast food restaurants just to get online for class.Instead of rising to this challenge, we've repeatedly doubled down on the very practices that helped create the problem in the first place. Whether it's the rubber stamping of competition and job-eroding megamergers and consolidation, the steady elimination of meaningful state and federal oversight of telecom monopolies, or simply refusing to adopt policies that drive meaningful competition to market, we're locked in a cycle of dysfunction that repeatedly prioritizes monopoly revenues over public welfare, market health, or technological innovation.It doesn't have to be this way. As parents, students, and employees alike run face-first into a problem we've simply refused to fix, the COVID crisis creates a unique opportunity to rethink our approach to broadband delivery with an eye on accurate data, affordability, and the public good.With that as backdrop, we've decided it would be timely to embrace broadband access (or the lack thereof) as our latest Techdirt Greenhouse panel. So we've collected a diverse array of international authors on the front lines of bridging the digital divide, deploying bleeding edge technological and regulatory solutions for a problem decades in the making. I'm hopeful this collection of industry leaders, activists, executives, and others can shine a little light on how we got here and where we need to go, using the urgency of the COVID crisis to drive meaningful, localized solutions to a problem that should have been solved long ago.As we noted during our last two panels on content moderation and privacy, we want Techdirt Greenhouse to be a conversation, not a unidirectional bullhorn. As such, if you'd like to participate -- or are an expert eager to respond to any of the pieces posted over the coming weeks -- please feel free to reach out.

As you've already heard, the DOJ filed the long-expected antitrust case against Google earlier this week. Karl has already discussed how it appears to be a politicized weapon wielded by Attorney General Bill Barr to create a bogus culture war around how Trump is "taking on" big tech. Cathy has looked at one weird aspect of the case -- how its own argument regarding trademark genericide actually cuts against the idea that Google is a monopoly.However, what strikes me as most noteworthy about the filing is how insanely weak the argument is. As was already discussed, many lawyers in the DOJ had said they really needed more time to put together a complete case against Google... and it shows. I know that the folks who have been agitating for antitrust actions against Google for years are cheering this on, but that seems incredibly short sighted. As is currently filed (and it will likely change!), the case is so weak that Google would likely win in court, and it would then be more difficult (though not impossible) to craft another antitrust case later.First, the case is fairly limited in what it argues. It focuses on Google's search distribution deals (e.g. getting Google to be the default search engine in things like Firefox or iOS, for which Google pays many, many millions of dollars). This seems like a weird choice for a variety of reasons.

Not everyone is gifted with the skill of organizing tasks and doing them the right way. Sometimes, it takes a long time to make our own system, be efficient, and improve our work routine. But that doesn't have to be the case. The Productivity Masterclass: Personal Productivity course has useful and time saving tips to increase productivity to a completely new level. No myriad of items to look at and no tough apps to tackle. You'll learn how to focus, stay active, and avoid procrastinating, and being a lot more productive. It's on sale for $10.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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:

FidgetCable is the only cable that's always tidy. No more cables getting tangled and knotted in your bag or on your desk. This 3 ft. cable has magnets to keep your cable exactly how you want it to be. Just pull out the amount of cable you need and the unused portion will remain coiled up. There are USB to Lightning or USB-C to Lightning cables in 3 packs of black or white for $47. Or the same options are available in glow-in-the-dark for $52.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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."

The iBolt ChargeDock is a magnetic docking solution for your iPhone. It has never been easier to simply dock your phone and then drive. Connect to your car’s audio system or Apple CarPlay with our 2m long, MFI Apple approved Charge and sync cable. Mount your phone in an easy to view position with our included ROK 3 suction mount or in your home or office with the included adhesive mini ball mount. The ChargeDock is case and Qi wireless charging compatible with proper metal plate placement. It's on sale for $18.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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.

Say goodbye to back-and-forth emails and wasted time trying to arrange a conversation. Novocall TimeSync is an online meeting scheduler designed for remote teams. It allows you to automatically keep tabs on scheduled meetings and calls, and seamlessly sync people, schedules, and outcomes. TimeSync makes every meeting easier and integrates with your calendar, Zoom, Google Hangouts, Salesforce, HubSpot, Google Analytics, and Facebook. A one year subscription is on sale for $30, and the unlimited subscription is on sale for $40.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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.