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Despite its obvious reputational problems, Comcast has actually been stepping up for its workers during the COVID-19 crisis, paying its employees hazard pay, allowing unnecessary personnel to work at home, and closing at least some of its retail locations.Charter Spectrum, the nation's second biggest cable provider, is another story entirely.The company spent much of last week dealing with a backlash among employees who say the company is putting both its employees and local customers at risk. Charter initially refused to let employees who didn't need to be in the company's offices to work from home, despite having the capability. Even in instances where there were positive COVID-19 tests at Charter offices, the company still initially refused to let employees work from home. Only when the press got involved did Charter begin to bend, and even then it's still not letting all non-essential workers work remotely.Charter employees say they're not getting hazard pay or adequate protective gear to do installs in customer homes. Instead, the company apparently thought it would be a good idea to give them a gift card. Not just any gift card, mind you, but a $25 gift card to a restaurant they probably can't visit anyway:

Like large parts of the world right now, I'm stuck at home these days, and figuring out how to work and be a distance learning proctor to children. A week and a half into this forced educational experiment, my kid's kindergarten teacher decided to post a (private) video of her reading a children's book to the students. Why did it take so long before reading time arrived to distance learning? Copyright, of course. She needed to wait for permission from Random House, apparently, and that also meant that in posting the video to the distance learning platform the school is using, she noted in both text, and prior to reading, "with permission from Random House."Now let's think about how silly this is. No one would ever expect that if you walked into a kindergarten classroom that a teacher would first need to (a) get permission to read aloud a book and (b) state before reading that he or she had "permission" from the copyright holder. This is permission culture gone mad. But it's the way things are, especially since copyright holders have spent the past two decades blaming platforms for hosting any "infringing" material. I doubt that the teacher in this case was directly concerned about her own liability (though, she might be), but it very likely had to do with the distance learning platform the school is using requiring her "properly license" anything uploaded. Indeed, when I tweeted about this, a copyright lawyer insisted that this was "better for everyone" to make sure that no one had liability. I question how it's better for teachers, students, or culture in general, however.This is playing out all over the place, thanks to our forced isolation. LeVar Burton tweeted about the trouble he's had doing a live-streamed version of LeVar Burton Reads, because copyright is getting in the way. He's been searching through "short stories in the public domain" because the actual licensing issues are too fucked up:

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We received notification this week that Google has delisted our entire right to be forgotten tag page, based on (of course) a right to be forgotten request under the GDPR in the EU. To be clear, this only applies when someone searches the name in question -- which was not shared with us. I am... perplexed about this. I understand that some people may not want us talking about their ongoing efforts to rewrite history and hide their past. However, you would think that if these articles don't actually talk about their historical scams that are very much a part of the public record, and instead focus on their very current and ongoing abuse of the "right to be forgotten" process, they should be allowed to remain up.The very fact that the tag being delisted when searching for this unnamed individual is the "right to be forgotten" tag shows that whoever this person is, they recognize that they are not trying to cover up the record of, say, an FTC case against them from... oh, let's just say 2003... but rather are now trying to cover up their current effort to abuse the right to be forgotten process.Anyway, in theory (purely in theory, of course) if someone in the EU searched for the name of anyone, it might be helpful to know if the Director of the FTC's Bureau of Consumer Protection once called him a "spam scammer" who "conned consumers in two ways." But, apparently, in the EU, that sort of information is no longer useful. And you also can't find out that he's been using the right to be forgotten process to further cover his tracks. That seems unfortunate, and entirely against the supposed principle behind the "right to be forgotten." No one is trying to violate anyone's "privacy" here. We're talking about public court records, and an FTC complaint and later settlement on a fairly serious crime that took place not all that long ago. That ain't private information. And, even more to the point, the much more recent efforts by that individual to then hide all the details of this public record.And of course, plenty of our right to be forgotten stories don't mention this particular individual at all -- so it seems pretty silly to then have them all blocked, but this is the future the EU apparently wanted. Just the fact that the tag itself was around "right to be forgotten" probably should have tipped off the Google reviewer that perhaps this was not a legit request, but hey, the EU's gotta EU and I won't goolnick around and complain about whatever decisions the company makes.

By now we've established that while fifth-generation (5G) wireless will result in faster, more resilient networks, the technology has been over-hyped to an almost comical degree. Yes, faster, lower latency networks are a good thing, but 5G is not as paradigm-rattling as most wireless carriers and hardware vendors have led many in the press to believe. 5G is more of a useful evolution than a revolution, but it has become the equivalent of magic pixie dust in tech policy circles, wherein if you simply say "it will lead to faster deployment of 5G!" you'll immediately add gravitas to your otherwise underwhelming K Street policy pitch.The other major problem? Americans already pay some of the highest prices for mobile data in the developed world. Now they're being asked to shell out a lot of cash for pricey new handsets with worse battery life, but more expensive data plans. It was already a difficult, pre-pandemic proposition to explain why users happy with 4G speeds need to pay even more.Many carriers appear to have understood this. AT&T includes 5G for free on the company's two most expensive unlimited plans. T-Mobile has been offering 5G for no additional cost (though that could change post Sprint merger) on all of its unlimited plans. Verizon, in contrast, has been eager to charge users an extra $10 per month for 5G. Initially the company backed off this surcharge after some negative early press, but seems intent on imposing these surcharges, it claims, because 5G offers a "differentiated experience":

Clearview's facial recognition app links to a database of 4 billion pictures. And those photos are linked to all the data that got scraped up with them, culled (without permission) from sites like Facebook, Instagram, LinkedIn… pretty much anywhere people post photos and personal information.There's no opting-out of this collection either, even as Clearview packages and sells access to this scraped data to law enforcement agencies in the US, as well as government agencies in countries known for their human rights abuses. Fun, fun, fun and all just a click away from exploitation by anyone with an account. That includes demo accounts operated by the super-rich and law enforcement officers told to test drive the software by running searches on friends and family members.How much does Clearview gather on the average person? It's tough to tell. Asking Clearview directly -- at least in most of the US -- will get you nothing. However, California's privacy law (the California Consumer Privacy Act) mandates the disclosure of gathered personal data to requesters. That's what Thomas Smith of OneZero did. And here's what he got back.

The COVID-19 pandemic sweeping the world, and in many cases shutting it down, has become so pervasive so as to even dominate the headlines here at Techdirt. To say the outbreak has altered our way of life would be a massive understatement. Social distancing, shutdown states, stuck in our homes, jobs reduced and gone; this whole thing has become a nightmare.And it impacts even areas of our life that we enjoy, but are less important than others, such as sports. Professional and college sports have basically taken an unwanted holiday, shutting down in an effort to partake in killing this virus off. It's been strange for fans like me, who wake up on Saturdays and have to find legit ways to watch sporting events that took place years and years ago as a substitute for live broadcasts. And if you think there aren't a great many people who are starved for live sporting content, you need only look to what is going on in the autoracing world, where it's basically all become eSports now.We'll start with Formula 1 Racing, which pivoted from its canceled live races into using video games as a substitute, using current and former drivers behind the virtual wheels.

Federal judges continue to trip over themselves in their hurry to extend qualified immunity to law enforcement officers. No matter how egregious the violation -- and how simply wrong it appears to reasonable human beings -- cops can usually escape judgment by violating rights in new ways, ensuring there's no precedent that would make them aware they shouldn't do things like destroy someone's house after they've been given permission (and a key!) to enter.This decision [PDF] from the Fifth Circuit (and the Fifth Circuit can be the worst about protecting the government from citizens it has aggrieved, stinging dissents from Judge Willett notwithstanding) involves officers who shot a man holding a knife. Given that judges seem to believe any weapon real or perceived that "threatens" an officer makes ensuing homicides wholly justifiable, this refusal by the court to bless the actions of reasonably-scared cops is more surprising than it should be.The description of the events leading up to the shooting would seem to be laying groundwork for a QI-based dismissal:

One of the hard lessons that I have learned over my years of practice is that, although some lawyers believe that they can increase the in terrorem effect of a complaint or a demand letter by piling on claims, the net effect of adding silly assertions can be to make things worse for your own client and not better. That may be true as well of the demand letter recently sent by David Vance Lucas of Bradley Arant Boult Cummings on behalf of their client, ProctorU.Criticisms and Demand LetterThe saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw – in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data. And online discussions by students subject to ProctorU monitoring have shared a variety of concerns about the creepy nature of ProctorU’s interventions; the students were plainly worried about the attending possibility of data accumulation. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using “any other private service that either sells or makes students’ data available to third parties.” The letter was discussed in a story in the school’s student newspaper.It is apparently ProctorU’s position that the faculty association’s concerns are overwrought. I have no opinion about that dispute. But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU’s web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of willfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic. Without quite meeting the faculty criticisms, the letter provided a restatement of the ProctorU privacy policy from a sanitized perspective, and on that basis demanded that the faculty group stop its “misrepresentation and misstatement” of the privacy policies; retract the complaints; and agree never to use ProctorU’s “family of marks and copyrighted materials.” In subsequent correspondence, Lucas has demanded that each member of the faculty group’s board sign a groveling letter in which they would have to take personal responsibility for the group’s criticisms, admit that many of statements for which they would be taking personal responsibility were false, endorse Lucas’ unproven assertions about his client’s privacy practices, and retract both the letter and the request that USCB stop using its services. It is my firm belief that Lucas's letter and followup emails, and especially the demanded retraction letter, had the intended effect of terrifying the faculty group, if only because they know how much it can cost to hire lawyers even when you have done nothing wrong -- until they started hearing that pro bono representation could be a significant possibility.The Federal Law Claims Are Completely BogusMy immediate reaction to this letter was to feel uncertain about whether ProctorU had any valid defamation claims, but my attention was drawn quickly to the contentions about federal intellectual property law, all of which are nonsensical.First, the copyright claims. Lucas argues that by repeating some of the language from the privacy policy in their letter, the faculty group infringed the copyright in the privacy policy. One thing that is decidedly odd about this copyright claim is that, at the same time that Lucas is claiming improper copying, he is claiming that the letter misstated the privacy policy. Either the letter contains exact quotes or it doesn’t. But beyond that, any language taken from the policy is plainly fair use — when you are criticizing a written text, you often have to quote the text being criticized. And beyond that, my search of the copyright database did not identify any copyright registrations by ProctorU. So it would have to register before suing, and failure to register previously would be fatal to any monetary claims besides actual damages. Those would be copyright damages, not damage to reputation. Hard to believe there is any copyright injury here.The demand letter invokes the ACPA but it is hard to see why, other than to give Lucas an excuse to put the phrase "bad faith" into the letter (he mentions that statute’s “bad faith factors,” none of which point in the direction of bad faith so far as I can see), and to threaten statutory damages and attorney fees. But the ACPA could have provided a remedy only if the faculty group had the registered or used a domain name to place its communications online; it does not provide a remedy for mentioning the URL's of some pages within ProctorU’s own web site in the body of a text, or for linking to those pages. Moreover, quite a number of cases under the ACPA and the Lanham Act allow the use of trademarks in domain names for web sites that comment on the trademark holder, including Lamparello v. Falwell, Bosley Medical v. Kremer, and Taubman Company v. WebFeats (a wonderful account of that latter litigation, full of the quirky sense of humor that my client Hank Mishkoff maintained throughout the litigation, can be found at the Taubman Sucks web site). I should note that although the faculty group did not register a domain name for their letter about ProctorU, there are plenty of ProctorU domain names ready for the taking, each of which could be lawfully used for a campaign to criticize that company for hiring David Lucas to send this letter, or indeed for criticizing Lucas or his client's funders.The trademark claims are equally faulty. First of all, under the doctrine of nominative fair use, trademarks can be used to identify the subject of a criticism, and injunctive relief imposed for the use of marks for criticism would run afoul of the First Amendment, as established in such cases as Nissan Motor Co. v. Nissan Computer Co., and CPC International v. Skippy, Inc. Moreover, a number of cases, including Bosley and Taubman, cited above, hold that trademark claims may only be brought over commercial uses of trademarks, thus avoiding unnecessary conflict with the First Amendment. In a case called Radiance Foundation v. NAACP, the Fourth Circuit came awfully close to agreeing with that limitation, but confined itself to holding that the statutory language of the trademark laws must be read as being limited to regulation of uses that could properly be treated as commercial speech.The faculty association's letter was not commercial speech. The letter seems to suggest that the UCSB faculty are worried about facing economic competition from ProctorU for their proctoring services. But apart from the fact that the mere possibility of an economic interest at play does not make speech commercial (for which see Nike, Inc. v. Kasky), the argument reflects a certain air of unreality. All of the college faculty that I know hate proctoring and do not want to spend their time on that task; when possible, they slough off this work on graduate students. They might, at the same time, have genuine concerns about student privacy.Lucas’ bio page at the Bradley Arant web site indicates that “intellectual property” is among his practice areas. My initial assumption was that, being an IP specialist, he must have known how frivolous his trademark and copyright claims are. But as I started reading the IP cases listed on his bio page, it struck me that his IP practice may have been confined to patent law; if so, then his letter only reflects bumbling, not malice.Even the Libel Claims Seem SpuriousAlthough it was the silly intellectual property claims that spurred my interest in this matter, the more I have thought about the libel side of the case, the less potent the claims have seemed to me. On its face, the strongest point in the demand letter is the contention that ProctorU never sells the data that accumulates – and if that were true, and if the faculty letter had accused ProctorU of selling the data, that might well qualify as material falsity. But in fact the letter only complains that ProctorU shares the data with others; the only reference in the faculty letter to “selling” is in the phrase quoted above: after urging that UCSB drop ProctorU, it also urges a more general policy: not to use “this service or any other private service that either sells or makes students' data available to third parties.” There is no charge in the letter that I can see saying that ProctorU sells data.The rest of the libel discussion in the demand letter is a big nothing. Lucas says this in his letter: “Contrary to your misrepresentations, ProctorU does not sell or share any information it collects to any third parties.” But would Lucas make that assertion under oath? After all, just two paragraphs before that, his letter says, “ProctorU only collects, uses and shares student personal information to provide its proctoring services . . . and to ensure the integrity of the tests it proctors.” And one paragraph before the denial, he says, “ProctorU . . . transparently discloses all information that could be collected, used or shared, and specifically identifies the types of third parties with whom it shares student information.” (all the emphasis is added). Now, this admitted sharing may or may not be justified – that is a matter of opinion – but it is simply not false to say that ProctorU shares information with third parties. Not false unless Lucas’s own admissions are erroneous.Without a claim of substantial falsity, ProctorU’s threat to sue for defamation falls apart. Lucas also tosses in the names of two more torts: intentional interference with existing and prospective business relations into his hopper. But without a sustainable claim of falsity, those tort claims cannot survive.ProctorU’s disproportionate response to the faculty group’s criticisms make me wonder just what there is to hide about the company’s data-sharing practices. Lucas’s letter contains a number of broad and conclusory assurances about his client, but no proof. I have to wonder what discovery, or an investigation by state authorities proceeding with enforceable subpoenas, might reveal about just what data gets shared with what third parties, and under what circumstances and with what protections against further dissemination.I have asked Lucas to justify his claims under both state and federal law, and he refused to respond, claiming that I would surely appreciate that he “cannot address issues pertaining to a client with you” unless I told him that I was representing the faculty group. (I have not yet decided about that). No, I do not appreciate that he “cannot” - I took it as a dodge by a lawyer who would rather not explain his misstatements about the law. After all, he sent his demand letter not only to the faculty group but also to counsel for the University of California and for UCSB, as well as to the California Attorney General and to the U.S. Attorney for the Central District of California, the latter two with the pretense that the faculty’s letter is “directly impacting emergency efforts to mitigate civil disruption across the United States.” Ah, yes, terrorism – maybe he should ask them to invoke the PATRIOT Act against these faculty terrorists. (Some of the respondents to the Popehat Signal on this case raised the question whether this is an unlawful threat of criminal prosecution). But he has showed no compunction about providing his thoughts about the case to lawyers who do not represent the target of his threats.Stop the Bullying of CriticsIn sum, I see little merit to this demand letter, and the nasty character of the demand deserves a forceful response. My efforts to engage Lucas in explaining his claims, and to get him to listen to reason, have failed. So my suggestion to members of the public is that they communicate their views both to ProctorU itself and to Eastside Partners, a venture capital firm that has provided funding for this company. Three of the five members of the ProctorU board appear to work at Eastside Partners. So Eastside Partners could pull the plug on Lucas’s bullying, if it chose to do so.Reposted (with permission) from the Public Citizen Consumer Law & Policy Blog

It seems worth noting a historical milestone today. 67 years ago today, March 26, 1953, Dr. Jonas Salk announced the vaccine for polio, and saved millions of lives. And this is notable given the current COVID-19 pandemic we're all living with. However, at a time when we're having to be vigilant for giant pharmaceutical companies sneakily trying to game the system to get extra exclusivity, and patent maximalists pushing for extended patent terms as an "incentive" to come up with a vaccine, it's worth noting the simple fact that he did not patent the vaccine. Indeed, in a TV interview with Edward Murrow, Salk famously said "could you patent the sun?"Right at the beginning of that video you can see the famous exchange:

It's been a year since the RIAA sued Charter Communications, using the same strategy it had used against smaller ISPs Cox and Grande Communications -- that the DMCA actually requires internet access providers to completely kick users off upon the receipt of multiple (unproven) claims of copyright infringement. The RIAA has been plotting out this strategy for the better part of a decade.For years, we've pointed out a number of problems with this, starting (most importantly) with the fact that accusations are not actual proof of infringement. And to kick people off of their sole access to the internet based solely on accusations would represent a real problem. As first noted by TorrentFreak, Charter has finally filed its answer, defenses, and counterclaims to the complaint. There's a lot of interesting stuff in there, but a key part: the RIAA and its labels and publishing partners quietly admitted that they were suing over songs they did not hold the rights to. That's kind of a big deal. Indeed, it reminds me of the revelation in the infamous Viacom/YouTube lawsuit that Viacom was suing over songs it had uploaded itself for marketing purposes.From the counterclaims:

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Has no one explained to Donald Trump how the Streisand Effect works yet? His campaign has apparently been sending laughably ridiculous threat letters to various TV stations that have been airing an advertisement put together by a group called Priorities USA, criticizing the President's handling of the coronavirus pandemic. The ad highlights Trump's repeated statements playing down the virus and insisting that he had things under control, even as the numbers of infected started to rise exponentially. It's a pretty effective ad. You can see it here.Priorities also posted the ad to Twitter, and according to a Fox News article, the campaign has also asked Twitter to "flag a nearly identical ad... but the social media giant refused."The letter is amazing in three separate, but equally dumb ways. First, it focuses solely on just one of the lines that the ad quotes Trump saying: "this is their new hoax." He did say that -- as the letter from his campaign readily admits. Their complaint is that the statement is out of context, and that what Trump was calling a hoax was actually the politicization of the virus response efforts. As the letter notes, here's the statement in full context, that Trump made on February 28th:

Earlier this month, the biggest U.S. broadband providers announced they'd be dropping usage caps and overage fees during the pandemic in order to provide a little financial relief to home-bound Americans trying to slow the virus' spread. That's good, since telecom CEOs, engineers, and leaked documents have all made it clear caps and overage fees on fixed-line networks are little more than the price gouging of captive customers in uncompetitive U.S. broadband markets, and do absolutely nothing to help manage congestion in the age of intelligent networks that can prioritize or deprioritize entire traffic types on the fly.It's slightly different on wireless where there's limited spectrum, but there too, researchers have noted that caps and usage fees aren't helpful to manage congestion. Not only are they like using a bulldozer to try and fix a watch, they open the door to abuse by companies that have long been eager to abuse such restrictions for anti-competitive gain. AT&T's already doing this by charging you overage fees if you use Netflix, but not if you use AT&T's own streaming services. Facebook has similarly been criticized for trying to use mobile caps and "zero rating" to corner the ad market in developing nations.While many mobile users are now on (not really) "unlimited" data plans, AT&T and Verizon say they'll be giving U.S. residents on limited plans some financial relief by waiving overage fees on limited data plans for at least the next 60 days. This being AT&T and Verizon this of course won't happen automatically, and you'll have to beg the giants manually for some financial leniency. From a Verizon announcement:

Predictive policing efforts continue to expand around the world. Fortunately, so has the criticism. The data witchcraft that expects a bunch of crap data created by biased policing to coalesce into actionable info continues to be touted by those least likely to be negatively affected by it: namely, law enforcement agencies and the government officials that love them.The theory that people should be treated like criminals because someone else did some crimes in the area in the past is pretty specious, but as long as it results in temporary drops in criminal activity, fans of unreasonable suspicion will continue to use these tools that still have no long-term proven track record.It's not just a US problem. It's a problem everywhere. The European Parliament has been asking for feedback on predictive policing efforts, which is more than most agencies in the US are willing to do. The Executive Director of the AI Now Institute, Andrea Nill Sanchez, recently testified during a public hearing on the issue, using the Institute's 2019 report on predictive policing to highlight everything that's wrong with turning law enforcement over to modeling algorithms. (via The Next Web)The point of Sanchez's testimony [PDF] is this: we can't trust the data being fed to these systems. Therefore, we definitely can't trust the predictions being produced by them. Dirty cops create dirty data.

For years and years and years, video games have suffered the brunt of blame for all manner of the world's ills. Real world violence? Video games. Mass shootings? Video games. Soccer team not performing well? Video games! Kids getting into hacking? Bruh, video games! Men not finding women attractive enough to keep the human race going? Video games did that, too!Which makes it kind of fun to now see media outlets suggesting, nay, pushing those impacted one way or the other by the coronavirus outbreak to go jump into those same dastardly video games.

While it always raises alarm bells when the government is taking down websites, the Justice Department's announced enforcement action against a website claiming to sell "vaccine kits" for COVID-19 appears legit. At issue was some scammer who put up a website fraudulently claiming that the World Health Organization was "giving away vaccine kits" and you just had to give this just registered website $4.95 for "shipping" and you'd get one of these kits. The website, laughably, claimed:

We all like a good facial recognition ban, and the state of Washington is the latest to (sort of) tee one up.

Earlier this week, we wrote about the sham orphan drug designation that the FDA gave to Gilead Sciences for remdesivir. As we explained, remdesivir was developed with mostly public funds, and Gilead Sciences already held three patents on it, with a fourth one pending. Orphan drugs designations are supposed to be extra incentives for drug makers to target rare diseases. The issue here was that part of the definition of a rare disease under the Orphan Drugs Act is that it has to affect fewer than 200,000 people in the United States. Ridiculously, the law does not take into account the rate at which the disease spreads -- just how many people have it at the time a drug maker requests the designation. Even worse, the law explicitly says that the FDA cannot remove the designation if the affected group later grows to over 200,000.Over the last few days, anger continued to grow at Gilead and the FDA -- including with the news that the FDA won't even say when Gilead applied for Orphan Drug status, because that's apparently "a commercial secret." Either way, this morning a ton of public interest groups, organized by Public Citizen, sent a letter to Gilead asking it to renounce its claim for orphan drug status:

China keeps being China, despite all the problems it has at home. The coronavirus traces back to Wuhan, China, and it has become clear the Chinese government is doing what it can to suppress reporting on the outbreak.The country has a fine-tuned censorship machine that works in concert with its overbearing surveillance apparatus to ensure the government maintains control of the narrative. "Ensures" is perhaps too strong a term because, despite its best efforts, information always leaks out around the edges.Citizens of China have found numerous ways to dodge censorship and surveillance over the years. But they're not being helped much by American companies, which have more often than not complied with government demands for apologies, takedowns, and other efforts that ensure access to the Chinese market at the expense of their Chinese users.The latest news is more of the same. A clever keyboard app that encrypted messages has been nuked from the Chinese app store by Apple following a takedown demand from the Chinese government.

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Update: Facing tons of public pressure and ridicule, Gilead has agreed to give up the orphan designation.I'm still pretty ticked off about the FDA's absolute bullshit decision to grant remdesivir "orphan drug" status for COVID-19 status. As I explained in the post yesterday, orphan drug status is supposed to be for rare diseases, in order to create an extra incentive for drug makers to find and deploy drugs to treat those diseases with a smaller than usual market. It would be ridiculous to argue that COVID-19 fits the bill. However, as the law in the US currently stands, the definition of a "rare" disease, is one that effects fewer than 200,000 people. The problem -- and the loophole that Gilead Sciences is exploiting here -- is that there's no concept of time and infection rate. The law was written with an idea that the rate of a disease would be relatively constant, so if you apply for orphan drug status at under 200k possible cases, it would remain that way.Gilead, instead, is exploiting this loophole by basically rushing to the FDA before we'be even tested COVID-19 enough to know how widespread it is, and before we have enough real data or understanding of how wide it has spread. However, given what's happening around the country and the globe, to argue that this is a small market drug that needs extra protections is obviously ludicrous. Even worse, under the law, having the disease later impact more than 200k people is not a reason that the FDA can remove the status.

For many of the estimated 44 million Americans who lack access to any kind of broadband at home, the nation's libraries are their only way to get online. And as libraries close up shop to slow the spread of COVID-19, that access is no longer available. That's why the American Library Association, which represents the country's 16,557 public libraries, fired off a letter to the FCC (pdf) last week asking if it would be okay if they left their WiFi hotspots operational during the pandemic quarantine.The nation's Libraries were apparently worried that the Ajit Pai FCC would penalize them under the FCC's E-Rate program, which helps subsidize broadband access to rural Americans:

Since lots and lots of (mostly government) people seem to agree these particularly desperate times call for particularly privacy-invading desperate measures, it only makes sense someone should be tracking the trackers. Enter Samuel Woodhams of Top10VPN, who has compiled a handy list of who's hoovering who to keep tabs on COVID-19 cases and coronavirus carriers.Woodhams says not everything listed here in Top10VPN's "Digital Rights Tracker" is necessarily bad. It's just that a lot of it is.

Remember the EU's unitary patent plan? No surprise if you don't -- attempts to create a unitary patent system across the region have been dragging on for decades. Back in 2012, Techdirt noted that the European Parliament had finally approved the plan to set up a new Unified Patent Court (UPC) for the EU, but it still hasn't come to fruition. Recently, the scheme has been dealt two major blows that are likely to delay it further, even if they don't kill it off entirely.The first concerns the UK. It's one of the three nations that had to sign up to the UPC agreement for it to come into force. A big question was whether it could or would do so after brexit. The answer turns out to be "no". The second problem comes from Germany, where the country's constitutional court has ruled as follows:

For a few years now, US telecom mono/duopolies like Comcast and AT&T have been trying to claim that absolutely any government attempt to hold them accountable violates their First Amendment rights. When their lobbyists were pushing to kill FCC net neutrality rules (and FCC oversight of telecom in general), they repeatedly tried to claim the rules violated their right to free speech, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument both flimsy and silly.That hasn't stopped them from aggressively abusing the 1A argument constantly to see if it sticks anyway. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights were violated when it was told to stop blocking competing channels' access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements (it signed) similarly violates its free speech rights. Inversely, the industry-friendly FCC has falsely claimed community-owned and operated broadband ISPs pose a dire threat to free speech.And as companies try to scuttle efforts to finally pass some kind of US privacy law for the internet era, this argument has popped up yet again. As you might recall, the telecom lobby convinced the GOP-held Senate to kill off some modest federal FCC privacy guidelines back in 2017. In response, much as we've seen with the net neutrality fight, numerous states have responded by trying to fill the void with an inconsistent platter of state-level privacy guidelines.After effectively creating this problem telecom lobbyists have whined endlessly about these state laws clinging once again to the argument that it somehow violates their First Amendment right to free speech. Hoan Ton-That, the CEO of Clearview AI, has similarly been trying to claim that his company has the First Amendment right to scrape user photos from social media platforms.Given the shaky nature of the US court system when it comes to ignoring hard logic and data (Exhibit A: both the T-Mobile Sprint and AT&T Time Warner merger approvals) it's not impossible that some courts will help prop up these shaky, self-serving arguments. But Colorado Law's Margot Kaminski and Scott Thompson at Slate have a good primer on how they probably won't:

We already went over this with Newark, NJ, but now Houston's top law enforcement officer is falsely claiming he can and will prosecute people for making false statements about Houston's COVID-19 response. It started with rumors on social media that the city was going to go into lockdown -- which is not a crazy rumor given that plenty of other places in the country (and the world) have more or less done this exact thing already (including the entire state of California). But Houston Mayor Sylvester Turner tweeted that this was false information and he was asking law enforcement to investigate:That says:

With the administration no longer able to ignore the threat posed by the coronavirus, it's decided to secure some additional powers for itself while the nation's defenses are low. As Betsy Woodruff Swan reports for Politico, the DOJ is seeking to add "indefinite detention" to its list of criminal justice perks as courtrooms around the nation undergo significant operational restrictions.

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Coming up with a treatment for COVID-19 is obviously incredibly important, and I'd be perfectly content if whoever did so got filthy stinking rich for basically saving the world. But we should be pretty damn careful about what kinds of incentives we set in place, and how that might lead to a ridiculous monopolistic, exploitative situation. Unfortunately, it looks like one pharma giant -- with a hopefully promising approach -- is already abusing the regulatory process to make sure it can extract monopolistic rents for a potential treatment.It's good and exciting that various companies are pulling out all the stops to try to come up with some sort of treatment for COVID-19 (though it's incredibly dangerous and frustrating that the President of the United States seems to be regularly suggesting drug treatments based on basically no evidence of their effectiveness, and without regard to the safety -- or lack thereof -- to desperate people willing to listen to his unscientific snake oil nonsense).One of the most promising offerings, though, has been remdesivir, from pharma giant Gilead Sciences. It's an anti-viral drug that has been in testing for other viruses, such as ebola, and there were some early suggestions that it might work against COVID-19. It's promising enough that NIH clinical trials for using remdesivir to treat COVID-19 started back in February (funded by NIH, not Gilead). And, over the last few weeks, Gilead has been facing rapidly increasing demand for the drug and has been offering it under "compassionate use" rules -- though it just put a halt to that program (though it claims it is creating a better process).At this point, it's worth pausing a second to give some of the background on remdesivir. While everyone refers to it as coming from pharma giant Gilead, as with most drug breakthroughs, the reality is that most of the work in discovering remdesivir actually came from academic institutions, using US taxpayer money from NIH, including a recent influx of $37.5 million in taxpayer funds to the University of Alabama at Birmingham, which developed remdesivir with some help from scientists at Vanderbilt University and UNC. Gilead's role, was as a partner of UAB to handle the clinical trials -- which are certainly expensive. But, the fact is that this drug was not "developed" by Gilead, but by a public university using public money. Still, Gilead, as is often the case, is the one running around getting all the patents for remdesivir. In the US, it has applied for four patents, three of which have already been approved. It appears that those three patents will grant Gilead exclusivity over remdesivir until October 29th, 2035.You might think that would be enough for Gilead. You'd be wrong. On Monday, Gilead was able to get the FDA to designate remdesivir as an orphan drug for the treatment of COVID-19. This is the part that's bullshit. The Orphan Drug Act was designed to give extra incentives to drugmakers to develop drugs for which there is a very small market, such that it's unlikely that (even at inflated monopolistic prices) the market can compensate them adequately for the development to treat those rare diseases.So, uh, can someone at Gilead or the FDA explain how the fuck COVID-19 should qualify?Basically, it looks like Gilead is pulling quite the scam. To get orphan designation according to the law in the US, you need to be targeting a "rare disease," with that being on the basis of it affecting 200,000 people or less in the US:

Netflix, Disney, YouTube, and Instagram have all announced they're temporarily throttling their video streams in Europe to help mitigate the bandwidth strain created by COVID-19, as millions hunker down to slow the spread of the pandemic. In a blog post, Netflix stated the company was throttling back the streaming quality of its titles by around 25% for 30 days after European regulators asked the company to do so to handle the pandemic-driven bandwidth surge:

Despite evidence to the contrary, Amazon's Ring is still insisting its the best thing people can put on their front doors -- an IoT camera with PD hookups that will magically reduce crime in their neighborhoods simply by being a mute witness of criminal acts.Boasting over 1,000 law enforcement partnerships, Ring talks a good game about crime reduction, but its products haven't proven to be any better than those offered by competitors -- cameras that don't come with law enforcement strings attached.Last month, Cyrus Farivar undid a bit of Ring's PR song-and-dance by using public records requests and conversations with law enforcement agencies to show any claim Ring makes about crime reduction probably (and in some cases definitely) can't be linked to the presence of Ring's doorbell cameras.CNET has done the same thing and come to the same conclusion: the deployment of Ring cameras rarely results in any notable change in property crime rates. That runs contrary to the talking points deployed by Dave Limp -- Amazon's hardware chief -- who "believes" adding Rings to neighborhoods makes neighborhoods safer. Limp needs to keep hedging.

It's not often you see a court actually call a police officer a liar, but it happened in this case [PDF], via FourthAmendment.com. While investigating a murder, Puerto Rico PD Homicide Division Agent Pedro Medina-Negron performed a sweep of the house to ensure there were no more victims or dangerous perpetrators inside.While performing his sweep of the scene, Agent Medina claimed to have seen several things in plain view:

If you haven't heard of the Playstation 4 title Dreams, it's a fairly fascinating little game. The entire concept of the game revolves around creating. Art, music, game mechanics, and even entire new games are all able to be created within Dreams itself. As you might imagine, while players have spent much time creating brand new content within the platform, others have also reproduced existing video game content within it as well. This is a matter of tinkering, mostly, and reproducing known content just to see what the Dreams system can do.And, because it's video games, one of the most common reproductions in Dreams are models of Mario from Super Mario Bros. Nintendo, however, recently got Sony to remove one popular Mario character model from the game over copyright concerns.

All hail the mighty drug warriors! The War on Drugs is being fought by people who like cash, easy busts, and imagined traffic violations. The "soldiers" in the "trenches" literally believe they're soldiers in the trenches, fighting a war at home -- not as protectors and servants, but as a conquering army sent in to control the local populace.The Baltimore PD has problems within its drug enforcement units. Several. Enough that the DOJ stepped in and forced the city and the PD to sign a consent agreement in which the PD would be forced to do what it always should have done: respect the Constitution and the rights of the people the PD serves.Dozens of cases were dismissed after a cop was caught by his own body camera appearing to plant drugs at the scene of an arrest. It turned out he was just doing a dramatic reenactment of his own discovery earlier, but forgot about the rolling 30-second buffer which caught him shoving drugs into a coffee can and then pretending to have just discovered it the second time around.But that's only one tip of the PD's garbage floe. Hundreds of cases are up for dismissal now. Misconduct appears to be the rule, not the exception. And it has resulted in the city's drug warriors being exposed as no better than the perps they went after. Here's Justin Fenton reporting for the Baltimore Sun:

For those who can stay at home, please do. We've all been advised to socially distance -- the safest thing anyone can do in their individual capacity.Of course, stir craziness can set in quite easily. (I'm stuck in my apartment with my dog, and while he's good company he's not much for conversation.) This is a great time to catch up on all of the books, shows, movies, and video games you've been meaning to read, watch, play, etc.While each of us is doing our part to stay indoors, rights holders can do their part to make these trying times a little less tedious for the home-bound. How? By making their content freely available for streamers and downloaders.So we're clear, I'm not talking about independent artists or those who rely on touring income. These folks are most certainly going to take a hit, and would hopefully be covered by any kind of broad-based stimulus that comes from Congress. (This would also be an excellent time to consider Dean Baker's proposal to give every American a creative works tax credit to donate to an artist of their choosing. To qualify, the artist would have to make their works public domain).No, I'm talking about the collectors of passive income, those who actually hold the rights to the content: Disney, Netflix, CBS, NBC, Amazon, etc. Rights holders for video games, like Bethesda Studios, Paradox, EA, and Activision could also help. Even if they don't want to release relatively new titles, this would be a great time to make older games free for all to stream, download, and play. Audible should also give everyone a few free downloads, and a few free months of Kindle Unlimited would go a long way.Now would also be a great time to release the directors' cuts or other deleted scenes that never made it to the theater or online. I personally would love to see the older versions of Rogue One or the rumored J.J. Abrams's cut of The Rise of Skywalker, and I'm sure there are lots of other clips left on the cutting room floor that fans would love to hear.More controversially, I implore all major rights holders to forgo prosecutions for torrenting, streaming, and other forms of infringement during these times. If illegally streaming keeps someone indoors, then let them stream.The penalties for copyright infringement are astronomical and disproportionate, and simple peer-to-peer file sharing should be decriminalized in the first place (large torrenting sites and streamers are a separate case). But now is not the time for that -- a lot of people need just a little bit of joy, and the owners of infringed copyrights must appreciate this.This is especially true when it comes to going after YouTubers and other online commentators who must make use of others' content when producing their own. A great deal of their use is fair to begin with, but dealing with a 512 notice or copystrike is the last thing they need on their minds.This is a time where everyone must sacrifice both for their own personal safety and the safety of others. Rights holders should pitch in and forgo the benefits of the subsidy that has been given to them to make everyone else's sacrifice a little more bearable.

Pretty much everyone by now should recognize that large parts of the world have needed to shutdown due to COVID-19 -- and you would hope that most people would be understanding that certain things may need to be delayed for a bit. But apparently not lawyer Michael Hierl from the law firm of Hughes Socol Piers Resnick & Dym, and his client, a copyright licensing agency called Art Ask Agency, based in Spain. On March 9th, Art Ask Agency sued a bunch of unnamed defendants (their identity to be determined later), in US federal court in Illinois, over what it calls "counterfeit" images of a unicorn designed by artist Anne Stokes. Stokes apparently does brisk work in unicorn-related merchandise, as seen by her page on Art Agency's website:And, boy, is Art Agency ever so mad that there are "counterfeit" unicorns out there, which they claim violate Stokes trademark and copyright. Art Agency is so mad, that it's tossing out totally random fantasy numbers that have nothing to do with the specific works in this case:

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Adam Mossoff is one of the most vocal IP maximalist law professors around. He's never seemed to have met a form of artificial monopoly that he didn't want to expand. His latest is that he's claiming, laughably, that we should be extending patent terms in order to incentivize the creation of coronavirus vaccines. His argument is based on a misleading complaint that has been raised by plenty of pharmaceutical companies: they need to file their patent applications at the point of discovery, but they can't market a drug until it receives FDA approval, and that can take years, which cuts into the years over which they hold a monopoly and can extract insane monopoly rents.Mossoff says that now is the time to revisit that and to roll back the law that made it so the clock started so early, and to enable patent extensions to incentivize drug makers to create a coronavirus vaccine.

Last year wasn't a particularly good one for AT&T. Despite spending more than $150 billion in mergers in a bid to dominate the streaming video space, the company instead lost 4 million TV subscribers on the year, not exactly what company executives were aiming for. Not only did AT&T's mergers saddle the company with a mountain of debt, the company then tried to extract that debt from its customers in the form of numerous price hikes, ignoring that's not how streaming TV competition is going to work. The company also bumbled its streaming TV branding so badly, it confused even the company's own marketing and support departments.That's before you get to AT&T's empty promises in 2019, which include receiving billions in regulatory favors (like killing net neutrality and privacy rules at the FCC), subsidies, and $42 billion in Trump tax cuts for promises that never materialized. Not only did they not materialize, but AT&T actually engaged in the exact opposite behavior it had originally promised, trimming overall network investment and laying off nearly 37,000 jobs just since the Trump tax cuts were announced.Now your first question is probably but how is AT&T CEO Randall Stephenson doing in the wake of all this? Well you'll be happy to know he's just fine: Stephenson received a record $32 million in compensation in 2019, despite a wave of bungled merger mania so intense it even pissed off the company's investors, triggering a revolt. But yes, good job, Randall:

This week, both our winners on the insightful side come in response to our post about the patent troll "Labrador Diagnostics LLC" trying to block COVID-19 testing with help from the Monkey Selfie law firm. In first place, it's That One Guy summing up how most people feel:

This is it: the last in our series of posts focusing on each winner from our public domain game jam, Gaming Like It's 1924! So far, we've featured Hot Water, Legends of Charlemagne, 192X, The Hounds Follow All Things Down, and You Are The Rats In The Walls, and now it's time to wrap things up with the winner of Best Analog Game and a game that, perhaps most out of all the entries, is completely suffused with a spirit of remixing and mining the public domain: The 24th Kandinsky by David Harris.This game was one of the first to draw our attention as the entries were coming in, just based on its premise: players are tasked with using visual elements from the 23 paintings that famed Russian abstract artist Wassily Kandinsky created in 1924 to create a brand new work — a "24th Kandinsky". This is a game about not just admiring art but digging into it and picking apart its components, and all that's required to play is a blank canvas, some paper and drawing implements, a pair of scissors, and some sticky tack or tape. On each of their turns, a player selects an element from one of Kandinsky's newly-public-domain works — choosing from all the geometric shapes, swooping curves, checkered grids, intersecting lines and other abstract forms that are the hallmark of his work — and draws a replica of it, which they then cut out and affix to the canvas wherever they choose. They can overlap and underlap other elements as the new work grows, and at the end of each round all players vote to determine who made the best contribution, leaving their element in place while the others from the round are removed. Turn by turn the work grows more elaborate, until time runs out or players agree to stop, at which point the player who won the most voting rounds gets to keep the completed work.There is just so much to love about this idea and its execution. It manages to celebrate just about everything that we hope to highlight with these game jams: the value of new works entering the public domain, the incredible creative power of remixing and appropriation, the joy of artistic collaboration and spontaneous creativity, and the way games can be an ideal medium for all these things — for both game designers and players. Mechanically speaking, it does this with elegance: the rules are loose and simple, but carefully combine cooperative and competitive gameplay to achieve a balance of incentives that produces just the right mood for a game like this. It also serves as a foundation for people to create their own variants of the game: one can easily envision it being adapted to use different source material, more elaborate art supplies, and even modified rules to create different overall rhythms of play. And with every play session, a new piece of art is created, and that's a special thing for a game to achieve.You can download the rules and materials for The 24th Kandinsky on Itch, or check out the other submissions in our public domain game jam.And with that, we've reached the end of our game jam winner spotlight series! One more time, thanks to everyone who submitted a game or played the entries, and to our amazing panel of judges. We'll be back next year with a game jam for works from 1925, but until then, keep on mining that public domain!

The First Circuit Court of Appeals has confirmed what we've already assumed: the "community caretaking" function law enforcement performs is there to help it dodge the Constitution, not to ensure it actually takes care of the community. Citing Simpsons' episode BABF18*, Judge Selya (trigger warning: overwrought English) says nothing about the community caretaking function prevents officers from harming you. But it does not mean officers ever need to help you.*Judge Selya does not actually cite this, but let's just take a look at what these decisions actually mean:The Supreme Court has made it clear -- repeatedly -- that officers are under no obligation to "serve and protect," with emphasis on the latter. You're on your own as a citizen when it comes to harm being inflicted on you. Cops are here to file reports and investigate the tragic aftermath of the harm inflicted on you. They are under no obligation to protect you against violence, even if you've repeatedly informed them someone means to do you harm.But cops suddenly become inspired and proactive members of the community when it comes to the community caretaking exception, which allows them to perform searches and seizures without a warrant. In the interest of protecting the community, cops will tow your car and perform a pretextual search. But they'll also go into your house and there's nothing in the Fourth Amendment that can prevent that, apparently.Selya opens the First Circuit's opinion [PDF] by painting a rosy picture of cops as local heroes who would never abuse rights to achieve their own ends.

With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

Shout it from the rooftops: content moderation at scale is impossible to do well. Mistakes will always be made, or even "legitimate" decisions will appear "wrong" to many, many people. The latest example: Twitter -- which has received criticism for being both too aggressive in shutting down accounts and not nearly aggressive enough (sometimes by the same people) -- suspended Cory Doctorow's account earlier this week. The reasoning for the suspension? He would put various trolls onto a Twitter list called "colossal assholes" before muting them, and Twitter claimed this violated its policies (though the company only told him well after it suspended him):

It's been one full year since Rep. Devin Nunes kicked off his long series of frivolous SLAPP suits against various critics. While the suing of satirical Twitter accounts still get the most headlines, two of the lawsuits (including the first one) target Liz Mair, a political consultant who has worked on numerous Republican campaigns (and was a spokesperson for the RNC). It's still unclear why Nunes targeted Mair in particular, who has pointed out how this is a clear attempt at stifling free speech, but he seems particularly annoyed with her. Most elected officials learn that part of being in public office is that you get criticized, but Nunes seems to think that anyone who criticizes him deserves to get sued. Mair has now launched a new website, NunesVFreeSpeech.com, seeking donations for her own legal defense, and in defense of free speech. Mair also agreed to answer some questions I had about her experiences over the last year in dealing with this lawsuit.

Say hello to the coronavirus and goodbye to privacy. The government is working with a variety of tech companies -- including infamous analytics companies like Palantir -- to get a grasp on the spread of the virus. Unfortunately, this means the data citizens have generated for a variety of tech companies will become a handy way to track them and their movements, especially if they're infected or in contact with those who are.

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Nothing like a pandemic to really make it clear what a terrible person you are, huh? Law360's Bill Donahue (who is not a terrible person!) has cataloged attempts by terrible people to register trademarks related to the pandemic:

In an effort to turn an unmitigated disaster into something a bit more mitigated, governments around the world are heading towards the "drastic" end of the scale to slow down the spread of the coronavirus. Cities and everything in them have been effectively shut down. Preventing the spread of the virus depends a lot on the voluntary cooperation of citizens to self-report and self-quarantine. Meanwhile, no one has any toilet paper. What a time to be alive, at least temporarily.How do you enforce "voluntary" quarantine without filling cities with cops and/or soldiers? You turn to the tracking devices nearly everyone carries. Extreme times/extreme measures and all that, so every bit of location data hoovered up by carriers of phones and/or viruses is now apparently fair game.It's already happening in the countries we expect it to happen in. China is still being China, except moreso: