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Whenever our nation's court system resumes to normalcy, there will hopefully be another case on the Supreme Court docket that could clarify if someone who engages in protected speech can be held responsible for violent actions of someone else at the same protest.Activist DeRay McKesson participated in a Black Lives Matter protest in Baton Rouge, Louisiana following the shooting of Alton Brown by police officers. During this protest, someone threw a chunk of concrete at a cop, injuring him. The officer -- known only as "John Doe" in his filings -- sued McKesson (along with the entire Black Lives Matter movement and, inexplicably, a set of Twitter hashtags).The district court found in favor of McKesson, saying he wasn't directly or indirectly responsible for the actions of other protesters, even if the protest began with protesters illegally blocking traffic. Officer Doe appealed. Inexplicably, the Fifth Circuit Appeals Court refused to address the First Amendment issue, finding instead that -- under state law -- McKesson could continue to be sued for participating in the same protest where this mystery cop was injured.McKesson asked the Fifth Circuit to take a second look at its awful decision. It did and liked what it had said the first time around. The only exception was Judge Don Willett, who belatedly recognized the First Amendment issue was paramount and that allowing protest organizers to be personally sued for the violent actions of others was extremely bad precedent to set.That's where the Supreme Court might be able to help. If it takes the case, it can reverse this precedent -- one that stands not-so-firmly on a 8-8 split between Fifth Circuit judges. Constitutional law professor Garrett Epps has a thorough rundown of the case's history at The Atlantic. Epps says the wild card in play is not the recently-apologetic Judge Willett, but rather another member of the court, Judge James Ho, who seems determined to make Constitutional rights subservient to the needs and wants of police officers.

With a large part of the planet on lockdown in a bid to slow the spread of COVID-19, streaming video consumption has seen explosive growth. Streaming platform Mux this week issued a study stating that during one three-week period measured by the company, streaming video usage overall jumped 239%.UK piracy tracking firm Muso TNT says they've also seen "unprecedented" traffic to movie streaming websites around the world in the last few months. The firm found that in many countries, the kind of piracy traffic traditionally reserved for weekends is now the norm during most weeks:

A million and a half people are all sending this monstrosity to me. From patient zero of overly aggressive content ownership, the Twitter account of Disney+, the new streaming service from Disney, announced that everyone should share their favorite Star Wars memories using the #MayThe4th hashtag. As you probably know, "May the 4th" has become the semi-official Star Wars day, thanks to fans of the movies spreading the "May the force be with you"/"May the 4th be with you" puns on social media a little over a decade ago, leading to it being declared (unofficially) as "Star Wars Day" in 2011. Disney finally agreed to embrace it in 2013.Anyway, after asking people to share their favorite Star Wars memory, Disney+ just had to Disney it all up by declaring that if you use that hashtag, you are agreeing to Disney's very broad terms of use, which include a bunch of fun nonsense like "binding arbitration" and a "class action waiver." All based on the use of a hashtag. After everyone started mocking them for this bullshit rights claim, five hours later they added a new "clause" by tweet, saying that "the above legal language only applies to replies" to Disney+. Of course, that still doesn't make it legit.In case you can't read it, here is the three tweet sequence typed out:

It's too bad it takes a lawsuit to free up supposedly "open" records. A few years ago, transparency group Reclaim the Records asked for some easy-to-compile birth and death data from the Missouri Department of Health and Senior Services and received this ridiculous response.

So here's a bit of a fun milestone. This blog post will be my 50,000th blog post on Techdirt, which is kind of insane when you think about it. I noticed last year that I was approaching that number and have checked back periodically to see where I was. Last month I realized I was 100 posts away, and have been watching the counter move along until now, the 50,000th post on the site.For what it's worth, the Guinness World Records folks still claim that the world record for "most prolific professional blogger" was Darren Murph and his measly 17,212 posts for Engadget in 2010. By that time I already had over 30,000 posts, but apparently Guinness is not too concerned about accuracy. In 2014, I had reached out to Guinness just to suggest that their record there was wrong, but rather than investigating the matter themselves, they sent me a huge form to apply for my own record, which would involve a ton of work to "document" all my posts, and, honestly, who the hell has time for that, when there are more blog posts to write.Anyway, just for fun, I thought I'd link back to some other "milestone" posts, starting with my very first post, which was actually a copy of an email newsletter I sent out in August of 1997. For the first few years, it really was mostly just a newsletter, and I'd take the emails and post them to the website as well. The first "real" blog post to the site came on March 12, 1999, and was about E*Trade launching a corporate venture fund. Exciting stuff, I know. The 10,000th post came on January 2nd of 2003, discussing how American kids weren't texting as much as kids elsewhere (of course, back then we called it "wireless messaging" because "texting" hadn't been invented yet in the old times). The reasoning? More use of instant messaging on computers at home as compared to in other countries (and less use of public transportation). I'd imagine crappy phones had a role as well.The 25,000th post was in November of 2006 and was about banks acting surprised that insiders were a big data breach threat -- again, not the most exciting of Techdirt fare, but I don't make the rules. I just write the posts. Anyway, given that I got to 25,000 posts by 2006, it's pretty clear that my prolific nature has slowed quite a bit in my later years. Those first 25,000 or so came in about 7 years, and it took another 14 to get the next 25,000 posts. I'm going to have to pick up the pace to get to 100,000 posts.At least I know I have more than 17,212.Anyway, a special thanks to everyone who has visited Techdirt over the years, whether you've read all 50,000 of my posts, or this is your first one. It's been quite a journey, and it wouldn't have happened if no one ever read anything I wrote...

Our nation's prisons and jails are coronavirus incubators. Everyone inside is stacked on top of each other and the notion of "social distance" doesn't have much meaning in a place where sheltering in place means breathing the air of everyone else being forcibly sheltered in place.Taking the risk of appearing soft on crime, some states have begun releasing at-risk prisoners, subject to a long list of exceptions that still leaves plenty of people in jail (and plenty of people tasked with watching over them). Since most crimes don't come with death sentences, it seems kind of cruel and unusual to subject minor criminals to the increased possibility of dying, but only a small percentage of inmates meet the criteria for release.However, enough of them have that Rikers Island -- New York City's most infamous jail -- has seen its population dwindle to its World War II numbers. Like most jails, Rikers Island's population includes people who have yet to be convicted of a crime -- jailed until their trial date. With courts handling fewer cases than usual, jailings have become more indefinite than usual while awaiting trial.Testing has ramped up in federal prisons and local jails, bringing with them severe spikes in confirmed cases. This never looks good on the COVID-19 balance sheet, but jam enough people into enclosed spaces and bad things develop quickly during pandemics.Releasing at-risk inmates is a good idea, even if it's still mostly an unpopular one. The state of New Jersey decided to show some much-needed compassion by releasing some of its inmates. But that compassion came tied to a long list of restrictions that somehow included First Amendment violations, as NJ.com reports.

The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain. If you don't recall, this case started years ago. The state of Georgia has a somewhat odd way of publishing its official code. Every new law is published, by state edict, in the "Official Code of Georgia Annotated" or the OGCA. Every new law explicitly says that it will be published in the OCGA. The tricky copyright issue came from the "Annotated" part of that. Annotations are (mostly) summaries of judicial interpretations of the law, and the state of Georgia outsourced the annotating to the private company LexisNexis. LexisNexis would write the annotations, for which it received a copyright, and then assign the copyright to the Georgia government. While Georgia put up a free version of the unannotated law, to get the annotated version -- which, again, is the "official" law of the state -- you either had to pay or to register with a website that included significant (and highly questionable) restrictions. In response, Carl Malamud, who has devoted much of his life's work to making sure that the laws of the world are freely accessible to those who are ruled by those laws, posted a free copy of the OGCA to the web.In response, Georgia first demanded he take it down, then it sued him for copyright infringement. The state initially won in the district court, but then was overturned on appeal, with the 11th Circuit saying that you can't copyright the law. Both sides appealed to the Supreme Court -- with Georgia wanting to continue locking up the law, and with Malamud wanting a precedent that applied beyond just the 11th Circuit. For what it's worth, even after the appeals court ruled in Malamud's favor, the state bent over backwards to try to block Carl Malamud from getting a copy of the OGCA. Yes, they didn't want him to get a copy of the state's official law, which is as crazy as it sounds.Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can't copyright the law.

When the coronavirus crisis hit, several countries saw an opportunity to engage in/expand domestic surveillance. Unsurprisingly, China and Hong Kong were some of the first to step up their snooping. But it was Israel that quickly deployed one of the more concerning virus-tracking programs: opening up a massive collection of cellphone data to its national security force, Shin Bet.This was done without any legislative discussion or input from the millions of stakeholders whose cell data had just become a plaything for Shin Bet. To make matters worse, the backup plan involved Israel's premier malware merchant, NSO Group, which has offered its spy tools to governments to spy on journalists, attorneys, and activists.Prime Minister Benjamin Netanyahu's unilateral declaration that telcos' data stores were open for government business may have been premature. While there's definitely value in tracking infected members of the population, a more voluntary program would have been the place to start.The nation's High Court has at least temporarily blocked Shin Bet's use of cell location data.

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One of the most important Supreme Court rulings in the patent space is the so-called Alice ruling in 2014 which should have effectively spelled the end of software patents (even though the ruling doesn't exactly say that). The ruling just says that you shouldn't get patents on software that "does no more than require a generic computer to perform generic computer functions." As we noted at the time... that's basically all software that is found on computers and personal devices. Sure, there may be some specialized machines, and, fine, let them get patents. But based on this ruling, nearly all software patents should be rejected.And, for a little while it seemed like that was happening. There were stories of the Patent Office rejecting a bunch of patents based on this ruling and things seemed to be heading in a good direction. Bad patents for generic software were not being allowed. But something changed. Indeed, after a general plateau in patents granted after Alice, patents started to go back up again.While some patent system supporters have been claiming that various Supreme Court decisions, such as Alice, have destroyed their ability to patent their non-patentable concepts, reality shows that the PTO has continued approving plenty of awful patents.And, now we know why. The US Patent Office has just released quite an eye-opening report regarding how it responded to the Alice decision entitled Adjusting to Alice. The TL;DR summary: "After Alice we started rejecting a lot more patents, but then Patent Office bosses issued "new guidance" that effectively overruled Alice, and we're back to approving bad patents again!"They didn't quite put it that way, but that seems to be the clearest interpretation of the report. First, they say what happened after the Alice decision:

For many years in the early aughts, broadband providers insisted they needed to impose usage caps and costly overage fees to help manage network congestion. By 2015, leaked documents from Comcast revealed that was never true. In the years since, even industry CEOs have acknowledged that the limits are little more than an additional tax on captive customers in uncompetitive U.S. broadband markets.As COVID-19 struck, ISPs quickly bowed to pressure to eliminate such restrictions so home-bound Americans weren't inundated with significantly higher bills. In a press release, Comcast makes it clear that its network has (gasp), performed perfectly well under the added load -- despite a 32% increase in upstream traffic and 18% increase in downstream traffic. There's been a 77% surge in gaming downloads, a 37% bump in streaming video consumption, and a 228% bump in VOIP and teleconferencing use. This is, Comcast says, causing no issues for Comcast:

This week, both our winners on the insightful side come in response to one particular comment from Australia's treasurer about the country forcing Google and Facebook to pay news organizations for sending them traffic, which he described as something that will "help to create a level playing field". Anonymous Anonymous Coward took first place with a baffled refutation:

Five Years AgoThis week in 2015, Sony was once again warning the media not to report on leaked emails — and they even sent a letter to Techdirt, to which we publicly responded — while MPAA boss Chris Dodd was implying that the US should go after Wikileaks for publishing them. Perhaps because the emails revealed things like how the MPAA pirated clips from Google commercials to make its own propaganda videos, and strategized about how to "tell the positive side" of internet censorship. Meanwhile, major record labels were trying to get SOPA by the back door, via a lawsuit against MP3Skull, and the war on owning-what-you-buy was being waged on fronts from GM vehicles to DVDs.Ten Years AgoThis week in 2010, since everyone had already seen ACTA after the full text leaked, the USTR decided it was time to release it. The revised text was only slightly less awful than expected, and of course was missing one piece of information that would have been especially interesting: what each country was pushing for.Also this week in 2010: Google began releasing stats on info and takedown requests from governments, a look at piracy stats showed the UK ones to be just as bogus as US ones and revealed that the MPAA unsurprisingly refused to share details on how it collected its numbers, and the Canadian entertainment industry was launching a new media campaign to push for draconian copyright laws.Fifteen Years AgoThis week in 2005, Verizon's CEO was deftly responding to consumer demands by complaining about the very fact that customers want any kind of service at all, while the ISP war on VoIP was bringing more companies in more countries into the fray, as was the recording industry's war on lyrics websites. We took a closer look at the entertainment industry's relationship with federal law enforcement, Microsoft's weak-sauce attempts to keep Encarta competitive with Wikipedia, and the latest impossible promise of perfect DRM (coming just as other providers of copy protection software got locked in a patent battle). This was also the week that Adobe bought Macromedia.

Techdirt has just written about France's incredibly hypocritical attitude to privacy when it comes to contact tracing apps for COVID-19. The European Commission seems to be rather more consistent in this area. As well as pushing privacy legislation like the GDPR and ePrivacy Directive, it has released a series of documents designed to help EU Member States create tracing apps without compromising on citizens' privacy. For example, on April 8, it adopted a "Recommendation to support exit strategies through mobile data and apps", which called for "a joint toolbox towards a common coordinated approach for the use of smartphone apps that fully respect EU data protection standards". Details followed a week later, when the European Commission announced a pan-EU toolbox for "efficient contact tracing apps to support gradual lifting of confinement measures". A 44-page document spelled out in some detail (pdf) the "essential requirements" for national apps deployed in the region -- that they should be:

As we've been discussing, esports is having something of a moment during the COVID-19 shutdown. While it's been interesting to see the general uptick in interest for esports globally, it's been equally interesting to watch professional sporting organizations and leagues, that can longer operate in real life, shift quickly to putting professional players behind gamepads and broadcasting esports matches instead. NASCAR was the first to jump on this and has certainly set the quality standard, but racing was quickly followed by other major professional sports leagues.And now the NHL is coming online as well. In an announcement, the league said it will be hosting an NHL 20 players tournament featuring players from every team. They even have a major sponsor for it.

This is the story of a person who should have never been allowed to be a law enforcement officer. He wasn't one for long, but he was one long enough to do something so batshit crazy, it nearly requires the suspension of disbelief asked of us by fiction writers.Noah Arwine is no longer a sheriff's deputy. But while was still a deputy, he did this:

We've discussed in the past the various court rulings that say that public officials (such as the President) cannot block users on social media as it violates the 1st Amendment. There has been vigorous debate on this (as well as plenty of confusion) but the basic concept is that the courts view the space beneath a social media post -- where people comment -- as a "designated public forum" and as such, bars any content-based discrimination.That should apply to all government institutions -- not just the social media accounts of those holding elected office. A fascinating new report from FIRE, digs deep into this issue by highlighting that tons of public universities are using opaque Facebook blocklists to hide student comments. For private universities, it wouldn't be a 1st Amendment issue, but courts have repeatedly said that public universities are an arm of the government, and thus Constitutional limits apply to them as well. From the opening of the report:

Law enforcement officers and officials are given a considerable amount of discretion. Too bad they so rarely use it.The sheriff of Marquette County, Wisconsin decided to exercise his considerable discretion by threatening a teenager's parents with jail over her Instagram posts. And for that misuse of his discretion, Sheriff Joseph Konrath is being sued. (h/t SBWisLaw)

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If there's one thing that nearly everyone can agree on while locked down during this COVID-19 pandemic, it's that Netflix's show Tiger King is the most batshit thing to watch. Everything about the documentary series played as if it was a Christopher Guest mockumentary, except in real life (and, incredibly, with characters even more colorful than Guest's usual crew). I watched it about a week after it came out (i.e., a week after everyone else in the world had watched it) and was surprised that no one mentioned to me that amidst all the other craziness regarding various competing keepers of "big cats," there was a copyright lawsuit.As is all too common these days, the documentary didn't do a particularly good job describing the legal issues at the heart of the dispute, and mentioned both trademark and copyright claims that came up. There were actually three separate lawsuits -- one over trademark and two over copyright (and then a few follow on efforts that we won't even get into). To be clear, the trademark claims, were more legitimate -- though not a complete slam dunk. You can see the court docket here. I still feel like many trademark cases are bogus, but this case seemed like the perfect example of what trademark law is supposed to be for: to stop a pretty obvious copycat from trying to confuse the public into who is who. And that's exactly what Joe Exotic was attempting to do in setting up Big Cat Rescue Entertainment Group, for his "traveling show" (bringing tigers and such to malls) in a manner that was designed to confuse the public into thinking he was actually his nemesis organization Big Cat Rescue Corp (which doesn't do shows). In fact, despite being based in Oklahoma, Joe Exotic used a Florida phone number for the BCR "Entertainment" Group, knowing full well that the actual BCR was based in Florida.So, that sounds like a standard issue trademark infringement situation... Except, it wasn't even that clear. While Carole Baskin and BCR had a trademark on BCR's logo, they did not have a registered trademark on the name -- nor the use of "snow leopard eyes." The website has since changed, but here's a quick screenshot from the Netflix episode (Episode 4) that discusses the cases. On the left is Joe Exotic's "copycat" and on the right is Carole Baskin's website at the time:The crazy thing is (probably by total coincidence) the elements that Joe Exotic copied were not the elements that were covered by the registered trademark. That said, Baskin had a strong case for common law trademark infringement, which is almost as good, but the case (contrary to what's said in the documentary) did not actually end with the court ruling that Baskin won the trademark dispute. While the documentary implies that Baskin won the case, that's not quite what happened. Joe Exotic had filed some (mostly silly) counterclaims in his response to the complaint, trying to throw a bunch of fairly weak defamation claims back at Baskin (and a few equally weak tortious interference claims).Carole Baskin and BCR sought to have the counterclaims thrown out on summary judgment, which is exactly what the judge did. While the clip in the documentary shows Howard Baskin saying the judge ruled in their favor, that was only on dismissing Joe Exotic's counterclaims, and not on the actual trademark issue. That was still set to go to trial, and perhaps recognizing how insanely costly an actual trial was going to be, that's when the two sides agreed to settle, with Joe agreeing to pay nearly a million dollars (though as the documentary makes clear, he had little intention of actually doing so).The main copyright case covered in the documentary (full docket here), however, is just... bad. It's a really bad case. It's an obvious SLAPP suit, filed on very questionable grounds, as a pile-on lawsuit while the trademark lawsuit discussed above was still chugging along. The details here are just ridiculous. Joe Exotic had come across a photo of Baskin's employees happily holding up some dead rabbits that they were going to feed to the tigers, and made a big deal out of her killing the rabbits (it appears that this was not, as we find out, because he's opposed to killing animals -- because he's not -- but apparently because he hates Carole Baskin). Joe used the photo on social media and in a variety of videos as part of his never-ending hate-campaign against Baskin. I'm not going to post the photo here, but will say that it's both in the documentary and if you do want to see it, it's in the court filings.Baskin had not taken the photograph, nor registered it, but had purchased the rights to the photograph from the photographer, Julie Hannon, then registered the photograph, and immediately issued DMCA notices on Joe's use of the images. Joe counternoticed the DMCA takedown claiming that the "material was removed due to a mistake or misidentification." He should have claimed fair use, because it clearly was. But he didn't, and then Baskin sued.Again, this is quite clearly an abuse of copyright law to censor fair use of the image. No matter what you think of either of the two individuals (neither of whom comes out of this looking good), there's no way the use in question was not fair use, and the purchasing of the rights and the late registration, were quite clearly just aimed at censoring Joe Exotic, the critic, and not for any legitimate copyright purpose.While Joe eventually did make a fair use claim, the fact that he (stupidly) didn't use that as his claim in the YouTube counternotice actually opened him up to Baskin adding a DMCA 512(f) (!!!) claim for making false statements in his counter notice. Joe's legal team argued fair use, failure to state a claim, misuse of copyright, and a few other similar defenses. Most of these got tossed because (they were nonsense and because) Joe Exotic's legal team didn't actually support most of the defenses, making it easy for the judge to toss them. The one defense that the court did not rule on was the fair use defense, which the judge said should be determined by a jury at trial. For what it's worth, the judge also claimed the 512(f) claim should go to trial as well.There were a few more twists and turns in the case before, once again, the case settled with a consent decree, with Joe agreeing to pay statutory damages of $50,000. The statutory damages part is interesting, in part, because statutory damages are supposed to only be available for infringement that happens after registration -- and registration is supposed to occur within 3 months of "first publication" for statutory damages to be available. In this case, it's unclear what actually counts as "1st publication" or if there was a first publication by the photographer.Separately, even though the initial infringement occurred prior to registration, it appears that after Baskin sued, Joe Exotic decided to keep on posting the image over and over and over again to various social media, blogs, and videos, which might then open him up to statutory damages. Of course, the fact that the case was settled kind of makes the whole question moot anyway. It feels odd that the settlement agreement said it was for statutory damages. In the terms of a settlement agreement, it's not clear why the type of damages matters at all. It's just been agreed to by the parties.That said, what's amazing to me is that copyright maximalists seem to be cheering on this clear abuse of copyright as a form of a SLAPP suit. The Copyright Alliance, a Hollywood front group that lobbies for ever more aggressive anti-consumer copyright policies, put out a blog post happily explaining this lawsuit as if it were a perfectly normal and reasonable copyright lawsuit. In fact, the Copyright Alliance -- somewhat incredibly -- says that Joe Exotic should have just taken down this obviously fair use image when he got the DMCA takedown notice, to avoid the lawsuit, which was clearly filed as a pile-on to go with the trademark lawsuit:

By and large, most major ISPs have handled the labor angle of COVID-19 relatively well, with giants like Comcast and AT&T offered hazard pay, and Verizon slowing new broadband, phone, and TV installations altogether.Charter, which sells broadband, TV, and phone service under the Spectrum brand, has been a different story entirely. The nation's second biggest cable company is now facing an inquiry by New York's Attorney General after several weeks of bad press highlighting how the company wasn't giving its employees hazard pay or adequate protective gear (many got $25 gift cards to closed restaurants instead), wouldn't let many employees work from home even if it was easy, and even forced people to continue to work in buildings where co-workers tested positive for the virus.With some 250 Charter employees now sick, New York's Attorney General has opened an inquiry into the company's bungled response:

Last year, the Australian government decided journalists just weren't feeling chilly enough. In response to the publication of leaked documents detailing the government's plan to allow more domestic surveillance, the Australian Federal Police started raiding journalists' homes.They started with News Corp. journalist Annika Smethurst's home. Hours later, police raided broadcaster Ben Fordham's home. A third raid was broadcast live, as the AFP swarmed ABC's offices seeking documents that might reveal who leaked sensitive documents to journalists.Australia's prime minister, Scott Morrison, had no problem with this cop-based threat to the country's free speech protections.

It's funny how fast things can change. With the exception of our recent stories on how esports has taken over the sporting world due to the COVID-19 shutdown, any other review of our stories on video games would leave you with the impression that gaming has tons of IP problems and is also the scapegoat for many of the world's problems. Blamed for real world violence, for teenager apathy, for falling school test scores, and even for men not being manly enough, there seems to have been very little for which some beep-boop games couldn't be blamed.And then came COVID-19 and its shutdown of schools across the world. And so many teachers naturally turned to the evil video games as a tool to continue to educate their students.

The US broadband market is a competitive mess. US telcos have routinely refused to upgrade their aging DSL lines, as the return on investment has never been fast enough for Wall Street. That has left cable giants like Comcast and Charter (Spectrum) with bigger broadband monopolies than ever before. While many see 5G wireless as some sort of competitive panacea waiting in the wings, there's a litany of problems (cost, reach, competition eroding M&As) that suggests folks should temper their enthusiasm.Then there's satellite broadband. Long despised by consumers for slow speeds, inconsistent performance, high prices, and usage caps, the sector is poised for disruption by a number of low-orbit satellite ventures. These new offerings offer significantly lower latency using a litany of smaller low-orbit satellites. One of the major players is of course Space X, whose Starlink satellite broadband service is slated for a public beta six months or so from now according to Elon Musk:

It's kind of difficult to take "privacy advocates" seriously if they're supportive of the EARN IT Act and its structure that would effectively enable the Attorney General to ban real encryption. That's why it was so ridiculous that vocal privacy advocate non-profit EPIC (in the midst of a truly horrifying scandal in which its President exposed employees to COVID-19 without telling them) came out in favor of the EARN IT Act. As with so much that EPIC does, the issue was more that they saw EARN IT as "anti-big tech companies" and to hell with how it actually impacts privacy and encryption.This is an ongoing problem. Many people who (whether for good reasons or not) dislike big internet companies seem way too willing to embrace bills that appear aimed against them as a sort of "stick it to them" attack, rather than recognizing the long term impact of those bills. We've seen that in the past with bills from the EU's Copyright Directive, the GDPR, and the California Consumer Protection Act (CCPA), all of which some groups supported solely because it would "be bad" for Google, Facebook and other internet giants, without recognizing the wider impact.Apparently we can add big news publishers to this list as well. While papers like the NY Times and the Washington Post have run a bunch of stories about how "big tech" is bad about privacy, it's difficult to take them seriously when their lobbyists are out there lobbying in favor of a bill that would ban encryption. And yet, there is the News Media Alliance, formerly the Newspaper Association of America, cheerfully attacking Section 230 of the CDA (which, someone should remind them, all of their websites rely on...) at the DOJ's hearing back in February. Because the EARN IT Act is structured in a way to try to play Section 230 and encryption off of one another, the News Media Alliance's support of attacking 230 gives cover to the EARN IT Act's effective chipping away at encryption.And that should greatly concern all of the journalists who work for these newspapers, like the NY Times and the Washington Post among others. Reporters at those newspapers rely heavily on encryption as they cultivate sources. And the newspapers themselves rely strongly on Section 230 to protect them against bogus SLAPP suits, even as they pretend that Section 230 is a "special favor" for large tech companies.The end result, as with EPIC, is that it seems that the focus on "big internet companies are the problem" means that they're compromising on their own principles in order to "punish" the big internet companies. Suggesting Section 230 should be amended gives cover to the plan to trade Section 230 protections for undermining encryption -- thereby undermining both. And that's really dangerous, given that news reporters and news sites rely on both strong encryption and on Section 230.The News Media Alliance is playing a dangerous game, while being blinded by its dislike of big internet companies.

It's kind of difficult to take "privacy advocates" seriously if they're supportive of the EARN IT Act and its structure that would effectively enable the Attorney General to ban real encryption. That's why it was so ridiculous that vocal privacy advocate non-profit EPIC (in the midst of a truly horrifying scandal in which its President exposed employees to COVID-19 without telling them) came out in favor of the EARN IT Act. As with so much that EPIC does, the issue was more that they saw EARN IT as "anti-big tech companies" and to hell with how it actually impacts privacy and encryption.This is an ongoing problem. Many people who (whether for good reasons or not) dislike big internet companies seem way too willing to embrace bills that appear aimed against them as a sort of "stick it to them" attack, rather than recognizing the long term impact of those bills. We've seen that in the past with bills from the EU's Copyright Directive, the GDPR, and the California Consumer Privacy Act (CCPA), all of which some groups supported solely because it would "be bad" for Google, Facebook and other internet giants, without recognizing the wider impact.Apparently we can add big news publishers to this list as well. While papers like the NY Times and the Washington Post have run a bunch of stories about how "big tech" is bad about privacy, it's difficult to take them seriously when their lobbyists are out there lobbying in favor of a bill that would ban encryption. And yet, there is the News Media Alliance, formerly the Newspaper Association of America, cheerfully attacking Section 230 of the CDA (which, someone should remind them, all of their websites rely on...) at the DOJ's hearing back in February. Because the EARN IT Act is structured in a way to try to play Section 230 and encryption off of one another, the News Media Alliance's support of attacking 230 gives cover to the EARN IT Act's effective chipping away at encryption.And that should greatly concern all of the journalists who work for these newspapers, like the NY Times and the Washington Post among others. Reporters at those newspapers rely heavily on encryption as they cultivate sources. And the newspapers themselves rely strongly on Section 230 to protect them against bogus SLAPP suits, even as they pretend that Section 230 is a "special favor" for large tech companies.The end result, as with EPIC, is that it seems that the focus on "big internet companies are the problem" means that they're compromising on their own principles in order to "punish" the big internet companies. Suggesting Section 230 should be amended gives cover to the plan to trade Section 230 protections for undermining encryption -- thereby undermining both. And that's really dangerous, given that news reporters and news sites rely on both strong encryption and on Section 230.The News Media Alliance is playing a dangerous game, while being blinded by its dislike of big internet companies.

Canada is more than just a calmer, more apologetic version of the United States. It's its own thing. But, more accurately, it's a Britain + France thing. While Canada shares a common border with us, it's still more Europe than US of A.Every so often we're reminded of its ties with the other side of the pond. This is one of those times.French regulators recently decided Google owed French news sites for all the traffic it sends to them. It mandated "negotiations" between Google and French newspapers, but insisted the negotiations begin with Google getting out its wallet.It appears Canadian lobbyists agree with France: Google owes them money.

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Yes, we've seen lots of folks using COVID-19 to push their specific agendas forward, but this one is just bizarre. UNESCO (the United Nations Educational, Scientific and Cultural Organization) is an organization that is supposed to be focused on developing education and culture around the globe. From any objective standpoint, you'd think it would be in favor of things like more open licensing and sharing of culture, but, in practice, the organization has long been hijacked by copyright maximalist interests. Almost exactly a decade ago, we were perplexed at the organization's decision to launch an anti-piracy organization. After all, "piracy" (or sharing of culture) is actually how culture and ideas frequently spread in the developing countries where UNESCO focuses.So, I guess it isn't so surprising a decade later that UNESCO is using COVID-19 to float the idea of an eternal copyright. I only wish I was kidding:

It seems like only yesterday that AT&T CEO Randall Stephenson was promising on live television that if Trump followed through on his tax cuts, the company would dramatically boost investment and add thousands of new jobs. Not "entry-level jobs," mind you, but "7,000 jobs of people putting fiber in the ground, hard-hat jobs that make $70,000 to $80,000 per year." Each $1 billion in new investment spurred by government favors, AT&T insisted, would result in 7,000 new jobs. "Lower taxes drives more investment, drives more hiring, drives greater wages," Stephenson said.The same rhetoric was a common occurrence as AT&T lobbied to have net neutrality (and FCC oversight in general) stripped away, insisting this would result in significant job creation and a massive surge in investment. The amount of money AT&T saved from turning the FCC into a glorified rubber stamp for industry is likely incalculable. The tax cuts were more easily calculated, with CBS suggesting the cuts should net AT&T around $42 billion.Here on planet Earth the exact opposite of what AT&T promised occurred: the company actually decreased its 2020 CAPEX by some $3 billion, and unions say the company has cut more than 37,000 jobs since the Trump tax cuts took effect.This week, AT&T announced it would be conducting another $6 billion in cuts that will include additional "headcount rationalization," which in human language likely indicates even more layoffs:

We've been writing a lot about the need for real transparency in the midst of a pandemic. The lessons to be learned from Taiwan's transparency compared to China's censorship and speech stifling are important. Tragically, it has become abundantly clear that the US is following the path of China, not Taiwan.We've already covered hospitals trying to silence doctors and nurses from revealing what's actually happening within their hospitals, Jared Kushner hiding his coronavirus task force efforts in a private email account, and the CDC's tragic media gag order for its staff, but it's looking much, much worse.A bunch of stories came out on Wednesday that more or less show how hard the government is working towards silencing anyone "off message" within the administration. First came a NY Times report that head of the the HHS group working on a COVID-19 vaccine was dismissed from his job for daring to question Trump's weird infatuation with hydroxychloroquine as the "miracle cure" to COVID-19 (which studies now suggest actually may be killing more patients than it's saving). Dr. Rick Bright, who had been the director of the U.S. Biomedical Advanced Research and Development Authority, released quite a statement about what happened:

For decades, the FBI pushed junk science on the courts, resulting in the wrongful convictions of an untold number of people. It wasn't until 2009 that it started trying to undo the damage. And even then, the FBI wasn't 100% sure it shouldn't hold onto to at least some of its favorite junk, even if it had been repeatedly shown there was very little verifiable science behind their expert witnesses' assertions.All that seemed to matter were the convictions. Appealing a conviction is hard work -- something that takes years to do and requires the assistance of experienced lawyers. The damage has been done and the FBI's belated recognition of its contribution to the farce that is our criminal justice system isn't going to give back years of wrongfully-obtained lives.By the FBI's own admission, "nearly every" forensic expert deployed to criminal trials gave flawed testimony that overstated the certainty of their findings. This included experts testifying about fingerprints, DNA, and hair analysis, not just those discussing complete garbage like bite-mark matching or asserting mass-produced clothing is as unique as someone's fingerprints.The DC Appeals Court has just overturned a conviction based on faulty hair match analysis. It comes nearly fifty years after the conviction, meaning the government exchanged bad testimony for most of a person's life. The opening of the decision [PDF] lays out the facts concisely.

Techdirt has been writing about right-to-repair laws -- or, rather, their absence -- for many years now. A recent right-to-repair post concerned ventilators, pretty much the last hope for critically-ill patients suffering the effects of the new coronavirus. This underlines the fact that being able to repair equipment you have bought is not an abstract issue, but is literally a matter of life or death in some cases. Despite that, in Australia the fight to obtain a right to repair is still in its early stages:

It has been nearly seven years since 18-year-old Graham Dyer died due to injuries he sustained while riding in the back of Mesquite (TX) Police car. Dyer, all of 5'4" and 110 pounds, was picked up by Mesquite officers while experiencing a bad acid trip. Dyer had no idea what was happening to him or where he was. As the officers transported him to jail, he thrashed around in the back of the patrol car, ultimately slamming his head into the seat, window, and metal bars forty-six times.The officers never bothered to restrain him. But they did stop the car to head into the back seat to tase him, including one prolonged burst (eight seconds) delivered directly to Dyer's testicles. Dyer's parents had no idea what had happened to their son, who was picked up in good health (bad trip notwithstanding) but was dead less than 24 hours later. The Mesquite PD refused to release any records of this arrest to Dyer's parents. The Dyers finally obtained some records, but from the FBI, which had been called in to investigate the in-custody death.Armed with these records, the Dyers sued the officers and paramedics who handled the arrest and the less-than-adequate care their son received. The paramedics have been dismissed from the lawsuit, but most of the allegations against the officers survive. Two of the three officers involved are still facing the Dyers' lawsuit. And the Fifth Circuit Appeals Court has just thrown the third officer back into the mix, stripping the qualified immunity the lower court awarded him.The Appeals Court says the lower court made the right call for two of the officers, who are facing deliberate indifference claims for apparently not caring at all the arrestee they were delivering to jail was possibly seriously injured. From the decision [PDF]:

We keep trying to explain to people that privacy is always about trade-offs, and arguing for privacy laws that protect "privacy" as if it's a constant thing, will run into trouble. Most of that trouble is in the form of locking in big companies, but sometimes, the trouble is in showing you why understanding trade-offs matters so much.France has been among the most vocal critics of "big internet companies" and demanding various regulatory pressures be used to punish them. Last year it fined Google $57 million for breaching privacy laws, and appears to be angling for even larger fines.So it's difficult not to burst out in laughter after finding out that the French government is really, really mad that Google and Apple are protecting people's privacy, when suddenly the French government wants to use those companies to engage in contact tracing. Indeed, it's literally demanding both companies ease their privacy protections to help France track people who might have COVID-19.

"See something, say something" but for the coronavirus. How could it possibly go wrong?Everyone put your hands down. Of course we know how it could go wrong. Opening up the lines to callers never works. The DHS knows this, even if it chooses to ignore this. Years of "see something, say something" did nothing more than fill its data stores with reports from curtain twitchers about things their brown neighbors were doing and do-gooding randos calling in everyone they saw walking around with a camera.The home to the most "every Muslim is a suspect" city in the US should have known better than to open up a snitch line to the public. But officials like Governor Andrew Cuomo have already shown they're unable to fathom the concept of unintended consequences. Cuomo issued a mandate for mask-wearing in public while allowing an anti-mask law to run concurrently, inviting state law enforcement officers to engage in very selective enforcement.Without a doubt, the state has a COVID problem. But doing dumb shit isn't going to fix it. At best, it's just going to tie up city resources.Enter NYC Mayor Bill De Blasio. A city in the deep throes of a pandemic needs solid leadership. This isn't it. This is only something that seems sort of useful until someone gives it a few seconds of thought.On April 18, Mayor De Blasio took decisive action in an effort to curb the spread of the coronavirus:

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Richard Epstein is a very famous law professor, known for his "libertarian" take on the world. Lots of people who know him insist he's a brilliant legal mind... who seems to think that his brilliance in that area allows him to be brilliant in fields where he has no experience at all. For years, I've followed him being just ridiculously wrong when it comes to internet law and (even more so) on any issue related to copyright or patents, which he views as identical to tangible property. He has long refused to even consider that he might be wrong about that. Still, it was pretty shocking last month to see him jump into the deep end of the debate over the seriousness of COVID-19 by writing a piece claiming that he expected US deaths to top out at 500 tops. This was on March 16th, at which time California and Washington were already shutting down and it was blatantly clear many more people would die. Still what he initially wrote was:

We've noted repeatedly that despite a lot of talk from U.S. leaders and regulators about the "digital divide," the United States doesn't actually know where broadband is available. Historically the FCC has simply trusted major ISPs -- with a vested interest in downplaying coverage and competition gaps -- to tell the truth. The FCC's methodology has also long been flawed, considering an entire area to be connected if just one home in a census tract has service. The results are ugly: the FCC's $350 million broadband availability map all but hallucinates broadband availability and speed (try it yourself).As pressure mounts on the agency to finally improve its broadband mapping, the scope of the problem continues to come into focus. Like this week, when AT&T was forced to acknowledge that the company provided the FCC with inaccurate broadband availability data across 20 states, impacting some 3,600 census blocks:

All the way back in 2014, Twitter sued the DOJ over its National Security Letter reporting restrictions. NSLs are the FBI's weapon of choice in all sorts of investigations. And they almost exclusively come packaged with lifetime bans on discussing them publicly or disclosing the government's request for info to NSL targets.Things changed a little with the passage of the USA Freedom Act and a couple of related court decisions. The DOJ is now required to periodically review NSLs to see if the ongoing silence is justified. The Act also finally provided a way for companies to challenge gag orders, which has resulted in a somewhat steady stream of published NSLs.What's still forbidden is publishing an actual count of NSLs a company has received. Supposedly the security of the nation would be threatened if Twitter said it had received 118 NSLs last year, rather than "0-499." The reforms in the USA Freedom Act didn't change that aspect of NSL reporting and the government still argues any accurate reporting would allow the terrorists to win… or somehow avoid being targeted by an NSL.Twitter argued the publication of an accurate number was protected speech. The government, of course, argued the opposite. The federal judge handling the case ruled that accurate reporting wasn't protected speech back in 2016, but did say Twitter could move forward with its challenge of the classification of this data.Roughly a year later, the court changed its mind. The government's motion to dismiss was denied by the court, which said it needed to come up with better arguments if it wanted to escape Twitter's lawsuit. The court pointed out that denying Twitter the right to accurately report NSLs was a content-based restriction that couldn't be justified by the government's bare bones assertions about national security.Nearly three years later, we're back to where we were four years ago. The court has dismissed Twitter's lawsuit, denying its attempt to escape the "banding" restrictions that limit the transparency it can provide to its users. (via Politico)The decision [PDF] -- which ends nearly six years of litigation -- says the court believes the things the government says about detailed NSL reporting. Since these declarations tend to be delivered in ex parte hearings and/or under seal, we have to believe them, too. Actual numbers are more dangerous than vague numbers.

We've chronicled the many milestones esports has hit on its way to becoming the mainstream cultural occurrence that it is today. From having participants gain notoriety and fame by being featured on mainstream sports publications, to universities handing out esports scholarships, to esports being broadcast on ESPN, to the major IRL sports leagues getting involved. Now, with the world enveloped in the COVID-19 pandemic, a crisis that has shut down many if not most of the world's traditional sporting leagues, esports is having something of a moment, rocketing in popularity as a result.All of that being said, there has been one lagging indicator in the popularity rise of esports compared with its IRL counterparts: betting. You're not a big boy event until the gamblers get involved. Well, as we've seen with other indicators of esports' popularity, betting on esports is set to rise significantly as well.

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Content moderation at scale is impossible to do well. By now we've established that pretty firmly. However, there's something deeply amusing to see that when the Chinese embassy in Sri Lanka was temporarily banned from Twitter over what Twitter later claimed was a "systematic mistake," that the embassy then chose to go on a little righteous rant about free speech needing to be honored.The Embassy put out a press release more or less saying the same thing:

The spread of the coronavirus throughout the nation is turning some old laws into new ridiculousness. One of the hardest hit areas in the US is New York, which has nearly 30% of the nation's total cases. This has led to lockdown orders and spread deterrent efforts more severe than seen elsewhere in the country.One of the new mandates handed down by Governor Andrew Cuomo is a mask requirement when in public. The executive order that went into effect a few days ago says this:

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Brian Z. France ran NASCAR for many years, though as a pretty obvious nepotism hire. His grandfather and father ran NASCAR before him. In 2018, France was arrest for driving while intoxicated and criminal possession of a controlled substance, causing him to take an "indefinite leave of absence," that became more permanent once he pleaded guilty to the DWI, and has an agreement that if he completes 100 hours of community service and doesn't get into any more legal trouble, the misdemeanor charges will be reduced to a "non-criminal infraction" later this year. France's time at the head of NASCAR came with some controversy regarding his leadership style -- so it was not that surprising that someone set up a parody Twitter account for him @DrunkBrianF.France apparently didn't take kindly to being parodied, and hired some muckety muck lawyers -- Daniel Cohen, Kiran Mehta, and William Farley, from Troutman Sanders -- to file a blatantly obvious SLAPP suit in Connecticut Superior Court at the end of February, against John L. Steele, who apparently ran the account, going back to February of 2014. The lawsuit is, to put it mildly, ridiculous. It acts as if the concept of parody does not exist. Indeed, it insists that the intent of the @DrunkFBrianF account was to trick people into thinking it was really Brian France tweeting:

A few weeks ago, a new talking point popped up among telecom policy pundits opposed to net neutrality. They began claiming that the only reason the internet hasn't buckled during the pandemic was thanks to the FCC's controversial and unpopular net neutrality repeal. That repeal, you'll recall, not only killed net neutrality, but much of the FCC's ability to hold ISPs accountable for pretty much anything, including outright billing fraud.But to hear various net neutrality opponents tell it, the repeal is the primary reason the US internet hasn't fallen apart during COVID-19 quarantine:

Just when we need our elected representatives to step up and get their collective shit together, they seem to be disintegrating as quickly as possible. I understand a pandemic isn't on the list of "Things I Expected To Deal With During My Tenure," but this is why we give them so much power and the trust that's implicitly packaged with it.Not every decision made or mandate handed down needs to be solid gold. But it needs to be much better than what we're getting, which often seems to have been generated by a "COVID response" dartboard filled with ideas that shouldn't have made it past a cursory room read.Here's the thing about voting: it's important. And it needs to be secure. And, yes, we need to limit voter fraud but that shouldn't be the overriding concern since there's been so little of it observed during the numerous elections we've held in this nation.Sending voters out to gather in groups at polling places may cut down on fraud and (depending on the vote-taking tech) make things a bit more secure than relying on mail-in votes, but you have to factor in the exposure to a deadly virus -- both for voters and those forced to staff these disease vectors of attack.The lawyers speaking for the Texas Attorney General's office have issued one of the most tone deaf responses to worried state residents wondering if it might be OK to vote from home this year, given the spread of the virus. (h/t Sam Levine)The letter [PDF] starts off officially and non-stupidly enough by explaining the letter of the law does not support treating attempts to avoid infection as equivalent to established definitions of disability.

When it comes to derivative works, copyright in America has a long and storied history of stifling new and creative expression in favor of control by some ultimately-creative original author. Frankly, the section of copyright law that gives authors of content control over derivative works never made much sense to me. Or, at least, it appears to be a wholesale contradiction of the idea/expression dichotomy that is also supposed to exist in copyright law. Still, we've seen all kinds of fallout from the derivative works section of the law spill over into the real world, from laughable attempts by musical artists to control short phrases to derivatives building off of the original author's secondary work. The point is that the general consensus among most creators appears to be that derivative works outside of the author's control are the enemy and should be beaten down by any means necessary.The counterexample to that, however, is how the folks behind The Simpsons decided to handle one of the oddest musical acts I've ever come across. Think I'm exaggerating? It's a Ned Flanders homage using a death metal band as a vehicle to deliver "Flanderisms" via lyrics in what the band has termed "Nedal music."

The Austin (TX) police department barely avoided being hit with a DOJ consent decree a little over a decade ago. The sheer number of recommendations makes you wonder where the consent decree bar sits at the DOJ.