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If ever there were a time to end Constitutionally questionable FISA surveillance powers it should be now. Democrats have been, quite rightly, concerned about an out of control Trump administration, abusing the powers of government to target his enemies and critics. Republicans have been screaming from the heavens, quite rightly, about the FBI's abuse of the FISA process to conduct surveillance on members of the Trump Campaign. And all this is coming at a time when the crown jewel of the program -- the phone metadata surveillance -- has been shown to have been a huge, wasteful mess that has been effectively useless.And it's up for renewal. So just kill it.But, no, that's not how Congress works. Instead, earlier this week, the House worked out a bipartisan "compromise" that lets them each claim victory -- when all it really does is reauthorize powerful, frequently abused, Constitutionally-questionable surveillance powers -- the very same powers that the Trump administration has been insisting are being abused by "the deep state" against the President himself. As Marcy Wheeler explains, the final bill involved Rep. Adam Schiff -- who ran the impeachment effort against Trump, pointing out how incompetent and dangerous Trump can be -- watering down an earlier proposal to make sure that Trump has much greater surveillance powers with less oversight.

For most of the last decade, cable and broadcast industry executives insisted that "cord cutting" (users cancelling traditional TV and moving to antennas or streaming) either wasn't real or was only something losers did. Many of the analysts and viewer tracking firms (like Nielsen) -- which have a financial stake in telling cable and broadcast executives what they wanted to hear -- were quick to happily parrot these denials.Now that it's impossible to deny the trend, most of those folks have become notably quiet.This week Leichtman Research took a final look at 2019 earnings reports for the biggest cable companies and it wasn't particularly pretty for the sector. All told the top pay TV providers in America, representing about 95% of the market, lost about 4,915,000 net video subscribers in 2019--compared to a loss of 1,585,000 subscribers in 2018. Satellite TV providers were particularly hard hit last year.Among the biggest hit was AT&T's DirecTV, which lost 3,190,000 subscribers last year alone. Most of those losses were courtesy of the rate hikes AT&T imposed on its customers to pay off the debt it accumulated after spending $150 billion on megamergers in the last five years alone (DirecTV in 2015, Time Warner in 2019). Instead of dominating the space as AT&T had hoped, it "enjoyed" a revolt from customers and investors alike.But things weren't much better for the cable sector, which collectively lost 1,560,000 video subscribers in 2019 -- compared to a net loss of about 920,000 subscribers in 2018. Or the nation's traditional phone companies like Verizon and AT&T (who also offers TV service via IPTV), who lost 665,000 subscribers last year -- compared to 245,000 the year before. Even the companies that tried to at least somewhat get ahead of the trend (like AT&T) wound up paying the price, even losing subscribers from their new streaming TV platforms due to rate hikes.It's always been pretty clear that most cable TV providers intend to ride this cash cow until its last gasp before doing obvious things like shoring up historically terrible customer support or actually competing on price. And to some degree, you can understand why. The traditional pay TV sector is still home to a whopping 86.2 million subscribers with the top seven cable companies still laying claim to 45.8 million video subscribers, satellite TV services 25.4 million subscribers, and the top telephone companies 8.3 million subscribers.And while streaming will continue to slowly erode these totals, these companies all have an ace in the hole: their growing monopolies over broadband. The lack of US competition means that as margins on TV get tighter, they can simply squeeze their captive broadband customers tighter, something that usually manifests in not just vanilla price hikes, but the steady growth of bullshit fees, usage caps, and utterly arbitrary and unnecessary usage caps and overage penalties.

On May 29, 2018, the FBI promised to deliver an updated count of encrypted devices in its possession. As James Comey and his replacement, Chris Wray, continued to advocate for weakened encryption, the number of phones the FBI couldn't get into swelled from 880 in 2016 to over 7,800 by the time the FBI realized its phone-counting method was broken.This number still hasn't been updated. An early internal estimate by the FBI put the real number of locked devices at ~1,200. But the official number still hasn't been released. This hasn't stopped Chris Wray from continuing his attacks on encryption, painting pictures of a dark future that isn't supported by the small number of encrypted devices in the agency's possession.The attacks continue. They're more subtle than Attorney General Bill Barr's aggressive pitches, but they're still happening. Chris Wray spent his time at a recent cyber security conference in Boston making the case for strong encryption before (yet again) making a plea for tech companies to give law enforcement the encryption backdoors Wray still refuses to call backdoors.

Roughly a year and a half ago, we discussed a proposed amendment to Japanese copyright law that would seek to criminalize copyright infringement. The general consensus is that the chief impetus for this new addition to Japanese copyright law centered on the manga industry, which is a multi-billion dollar industry, despite that particular media being pirated alongside all other media. Whereas Japan's copyright laws were generally in line with American laws, specifically in that copyright infringement is treated as a civil matter, this new law changed that up to make it a criminal offense. The problem with that, as many people pointed out, is that Japan's constitution is quite clear that anything akin to censorship cannot be done except for the following circumstance:

Anyone who's read Techdirt for any length of time knows that I've spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP's using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver's clever take on the issue:In short, SLAPP lawsuits are "Strategic Lawsuits Against Public Participation." These are lawsuits -- generally defamation lawsuits -- that target someone's speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:

For the second time in a little over 30 days, odious facial recognition tech supplier Clearview is being sued. Unlike the first lawsuit, which is a proposed class action over violations of Illinois' biometric privacy law, this one [PDF] is being filed by a government agency. The Attorney General of Vermont is seeking to permanently ban Clearview from collecting info about state residents or sell access to the info it's already collected.

Look, I totally understand the very valid concerns that many people have about the spreading of false or misleading information regarding Covid-19. There are plenty of reports about misinformation spreading, especially via social media. Indeed, there are reports on the lengths to which various social media platforms are trying to crack down on all that misinformation -- a noble goal, though plenty will inevitably get through. This is the very nature of content moderation.So, I can understand why public officials are concerned about how the spread of misinformation could be a real problem. But if you want a masterclass in how not to deal with the problem of misinformation about the coronavirus, look no further than Newark, New Jersey, where Public Safety Director Anthony Ambrose has put out a statement that is both dangerous and unconstitutional at the same time (quite a twofer). I'm posting a screenshot in the expectation (hope?) someone will realize just how bad this is and remove it. It says that anyone who posts false information about the coronavirus will face "criminal prosecution."If you can't see that, it says:

One of the common themes here at Techdirt over the last decade is how in the digital and internet-connected era, the very meaning of "ownership" and "property" has changed -- often for the worse. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv.The latest example of this phenomenon comes courtesy of Philips, who this week announced it would be discontinuing its support of the first generation of its Hue Bridge on April 29. The Bridge is the heart of Philips' internet-connected lighting system, helping you manage all of the fancy new "smart" light bulbs you've installed around the house. And while the decision won't "brick" the hardware as we've seen from other companies, it will erode overall functionality of the platform, preventing them from connecting to the internet (the entire point):

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Ever since the DOJ started attacking Section 230 of the Communications Decency Act, it was obvious that it was simply a ploy to attack big tech companies that are (unfairly) seen as being "anti-conservative." Remember, that Section 230 explicitly exempts federal crimes -- the kind of law enforcement the DOJ is engaged in. That is, there is literally nothing in Section 230 stopping the DOJ from doing its job. But as Barr and the DOJ continued to attack 230, it also became clear that this was going to be a wedge issue he could use to undermine encryption -- encryption that keeps us all safe.Last month, the DOJ hosted a "workshop" regarding Section 230, and again Barr and the DOJ's agenda became quite clear. For all the talk of "dangers" to children online, the DOJ ignored the fact that it has failed to abide by Congressional mandates regarding fighting child sexual exploitation, and Congress itself has failed to fund programs it has put forth to deal with the issue.At the DOJ's 230 hearing, plenty of speakers highlighted why messing with 230 would create all sorts of problems. Unsurprisingly, the DOJ has ignored all of that, and sent out Deputy Attorney General Jeffrey Rosen to pitch four changes to Section 230, each one dumber and more counterproductive than even I had expected. The speech starts out with a misleading history of antitrust law -- the other big tool in the DOJ's toolbox to whack at internet companies -- and then gets to 230. If I have a chance I may get back to Rosen's antitrust discussion, but to keep this post from getting too long, we'll just focus on the 230 argument (ignoring the fact that evidence shows that 230 increases competition, rather than diminishes it).

Streaming video providers like HBO and Netflix have traditionally taken a lax approach to password sharing. Netflix CEO Reed Hastings has gone so far as to say he "loves" password sharing, and sees it as little more than free advertising. Execs at HBO have similarly viewed password sharing in such a fashion, saying it doesn't hurt their business. If anything, it results in folks signing up for their own accounts after they get hooked on your product, something you'll often see with kids who leave home, or leave college and college friends behind.The traditional cable industry sees things quite differently. Executives at the nation's second-largest cable company (Spectrum), for example, have called the lax attitudes toward password sharing "insane," and have frequently (and falsely) claimed that the practice is akin to "piracy." In response they've been trying to build a new coalition tasked with taking aim at what they see as a diabolical menace.A new service being launched this week should provide some fuel for those endeavors. DoNotPay is a startup that revels in helping consumers take counter-advantage of US corporations' automated customer service systems, offering users services like a fast-food receipt scanner that will automatically fill out surveys for free food, an automated system for securing refunds for crappy WiFi, or a service that lets you auto-contest parking tickets. Their latest offering is Chrome extension that lets users share their streaming service access without actually sharing your password:

Sometimes all it takes is a lawsuit and little bad press to make the federal government at least temporarily regret its thieving ways.In January, the DEA was sued by Rebecca West and her father Terry Rolin after the agency lifted Rolin's life savings -- more than $82,000 -- from West at the Pittsburgh airport. The supposedly travel safety-focused TSA agents saw the cash in West's carry-on luggage and decided to notify State Troopers and the DEA. After a few extended conversations with West, the DEA decided to seize the money under the theory that a person with this much cash on their person must have obtained it illegally.The Institute for Justice -- which is representing West in her lawsuit -- reports the DEA has suddenly and mysteriously decided the money agents took from West was probably honest money after all.

Last month we were happy to report that both houses of the Virginia legislature had passed anti-SLAPP laws (partially in response to Rep. Devin Nunes' use of the state for a bunch of SLAPPy libel-tourism lawsuits. As we noted at the time, the two versions that passed through each part of the legislature were somewhat different, so they needed to be reconciled.Unfortunately, it appears they were unable to reconcile to the two bills. In response to a tweeted question from reporter Rob Pegoaro, Schuyler VanValkenburg, who had introduced the House version of the bill, admitted that they couldn't reconcile the two, and it would need to wait until next year:

The Michigan State Police recently informed Twitter users that it's engaged in stealing money from drivers. I don't know what it expected from this announcement, but I'm sure spending a few days being ratioed wasn't what the agency had in mind.Here's the first part of the MSP's "Yes, we steal money" announcement:

Last week, we featured the first half of a panel discussion organized by Lincoln Network, all about the concept of open internet protocols versus proprietary walled-garden platforms. The panel is moderated by Marshall Kosloff and features Mike Masnick, Cory Doctorow, Ashley Tyson and Mai Sutton, and this week we've got the second half of the discussion plus the audience Q&A.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The DOJ has taken an open-and-shut espionage case and managed to somehow misplace the back cover. Does this say something about the unintended consequences of charge-stacking? Maybe. Whatever it is, it isn't pretty.The case against alleged Vault 7 leaker Joshua Schulte seemed pretty air tight, especially when Schulte continued to leak sensitive documents while behind bars, as well as attempting to rope his family into committing contempt of court violations on his behalf.He also, as Marcy Wheeler pointed out, gave the government pretty much everything it wanted or needed, but the DOJ's prosecutors failed to present evidence in a coherent way, resulting in a whole lot of juror confusion.

I keep trying to point out that content moderation at scale is impossible to do well for a whole variety of reasons, including the fact that sooner or later some people -- or some large groups of people -- may try to game the system in totally unexpected ways. Witness this amusing example from the London Review of Books, reporting on the situation in Wuhan, China, which was ground zero for the Covid-19 coronavirus outbreak. With everything shut down in and around Wuhan, schools have moved to online learning -- and some naughty kids seem to have worked out a way to try to get out of having to do schoolwork: getting the app the schools rely on pulled from the app store via fake negative ratings.

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I will admit to being worried, when the 9th Circuit originally agreed to reopen the long running copyright dispute between the estate of Randy Wolfe (aka Randy California) of the band Spirit, and Led Zeppelin. At issue was whether or not the classic Zepplin song "Stairway to Heaven" infringed on the Spirit song Taurus. As we noted, there are some similarities between the two songs... but they also have similarities to other songs in history, including Dido's Lament from the 17th century and Bach's Bourree from the 18th century and a bunch of other songs.Thankfully, a jury, and then the 9th Circuit, both sided with Led Zeppelin originally, claiming no infringement. But, then the 9th Circuit vacated the earlier decision and re-opened the issue. We had a pair of excellent blog posts by copyright lawyer Rick Sanders highlighting why there were good reasons to revisit the case, noting some real mistakes made during the original trial and also the very, very messed up "inverse-ratio" test used by the 9th Circuit in determining if songs were infringing. As that post noted, the 9th Circuit has long used a very confusing (and legally nonsensical) "test" for whether or not one song is infringing on another. Without going too deep into the weeds, the 9th Circuit basically said the more similar works were, the less you needed to do to prove "access" to the original work. As that link above shows, this can lead to some very significant problems in copyright cases (I recommend reading that link so I don't need to redo it).A second question that the court was asked to review -- is whether or not juries should be able to hear the recordings. This was super important, because if you were to just listen to the two songs, you might hear the fact that they are, indeed, similar. But, since not everything in the recorded version is protectable (and at the time the songs were written, the federal copyright only covered the composition, but not the recording), allowing the jury to make decisions based on the recording would have been a problem. It's very difficult, upon just listening, to understand which parts are protected by copyright and which are not.Perhaps surprisingly, the 9th Circuit has now appeared to do a pretty decent job in its latest ruling on the case. The key points: "Stairway" did not infringe, juries shouldn't hear the misleading sound recording, and the "inverse ratio" rule is no longer the right one to use in the 9th Circuit. Hooray.We'll go through a few key points in the decision. First, the representative of the Wolfe estate, Michael Skidmore (after whom the case is named), argued that the deposit copy of the sheet music for "Taurus" was not the full scope of the copyright in the song, but rather a sort of "reference" to the actual song. The court says that's not how any of this works:

Last June you might recall that the Trump FCC unveiled a new robocall plan that it claimed would finally put the annoying problem to bed. And while the tech press tripped over itself to suggest the plan was a dramatic departure from FCC robocall policies of the past, the reality is there was little to nothing in the plan that was actually new. As is often the case with this FCC, a coagulation of half-measures, already existing efforts, and empty nonsense were just kind of thrown together in a pile and deemed to be something new and revolutionary.The biggest change was FCC rule adjustment that would let wireless carriers install robocalling blocking tools on consumer devices by default, in contrast to the current paradigm where consumers have to opt in (assuming the tools are offered at all). But while the plan urged wireless carriers deploy anti-spoofing technology like SHAKEN/STIR to help prevent robocallers from hiding their real numbers, there was absolutely nothing in the plan that actually requires they actually do so. Because hard, clear rules with genuine accountability make AT&T and Verizon mad, you see.Not surprisingly, the voluntary measures weren't likely to actually drive massive telecom companies to actually shore up their anti-robocall efforts. There were also justified concerns that as wireless carriers deployed anti-spoofing technologies, they'd use the opportunity to further price gouge US consumers. Realizing this, Congress passed the Traced Act, which would require wireless carriers provide anti-spoofing tech to consumers at no additional cost.Amusingly, last week FCC boss Ajit Pai announced he was considering making deployment of SHAKEN/STIR anti-spoofing technology mandatory. In the FCC announcement, Pai tries to frame the effort as something he came up with on his own, despite the fact he was actually being mandated to do so by Congress:

Axon says it won't do it. Ring, less believably, says it won't do it. Some federal agencies want everyone to do it. But here's an actual tech company willing to do it: toss facial recognition tech into its cameras.

The ongoing fight between Nintendo and RomUniverse continues! While most of the targets of Nintendo's ire in its war on ROM sites folded to the company fairly quickly, RomUniverse's Matthew Storman boldly chose to fight in court. That led to Nintendo suing the site for copyright infringement. Storman attempted to crowdsource his legal defense, failed at that, and has been fighting this battle without legal representation. That likely explains the site's lame argument that somehow first sale doctrine makes the Nintendo ROMs on its site non-infringing, as though owners of game cartridges could copy the content to the site and resell or give them away there. The court saw through Storman's argument and allowed the trial to move forward.Which brings us to the present, in which Storman has not only responded to the lawsuit by claiming, again, that first sale doctrine protects him, but has now added a claim that he had no idea infringing files were on the site at all, and has demanded that Nintendo pay him for false claims of infringement. This reply was supposed to be due to the court in January, but the judge delayed that due date... so that Storman could attend a Federal Pro Se Clinic, where he got advice on how to represent himself.

Earlier this year, we wrote about the bogus "cybercrimes" charges brought against Glenn Greenwald in Brazil for his reporting on government corruption. As has been noted, a court and law enforcement had already said that Greenwald did not break any laws in his reporting, and had followed ethical journalistic guidelines. And yet, he was still charged with a crime for reporting on leaked documents, with prosecutors claiming that Greenwald's suggestions to the whistleblower on how not to get caught constituted a "clear role in facilitating the commission of a crime." This was clearly a charade, as the Bolsonairo government in Brazil seemed mostly to just want to intimidate Greenwald and the press away from reporting on what now appears to be an extremely corrupt government.A few weeks after the charges were announced, a court again said that it was clear that Greenwald broke no laws and refused to allow the case to go forward. However, as the Freedom of the Press Foundation has now announced, prosecutors have chosen to appeal that ruling and to continue to go after Greenwald.

One of the less charming aspects of Facebook is its executives' total inability to read the room. For example, any sensible company under Facebook's recent level of scrutiny would take the contrite and humble approach -- pausing most operations to insist they'd seen the error of their ways, pummeling home the claim that they were pausing expansion ambitions to ensure they were leaving no stone unturned to fix the problem and company culture (even if the company in question never genuinely intended such a thing).Instead Facebook, one of the wealthiest companies to ever exist, engaged in repeated PR gaffes and face plants, most of which were their own making. Like thinking it was a good idea to launch a dating app in the middle of a privacy firestorm. Or thinking it was a good idea to push a "privacy protecting" VPN on users that wound up being spyware. Or, you know, thinking it was a good idea for it to push hard into the cryptocurrency space while facing numerous international investigations for being a dumpster fire when it comes to protecting its users' privacy and security.To that end, a paywalled report at The Information this week hinted that Facebook was finally backing away from its Libra cryptocurrency plan after numerous partners had wisely exited the (likely) doomed venture. Last year Facebook had already been slowly backing away from its original vision of Libra as a fully open, decentralized network, putting it in stark contrast with those excited about the decentralized nature of blockchain-based networks.But the company and the Libra Association (or what's left of it) subsequently told Ars Technica that nothing has changed:

As we've been pointing out, the Trump campaign, with the help of lawyer Charles Harder, has been suing a list of media enemies over the past week. There was the NY Times, followed by the Washington Post and (probably not) finally, CNN. We've detailed why each lawsuit is frivolous, and how they appear to be playing to Trump's base in a performative manner, attacking the credibility of the media which has done critical reporting on his Presidency, and doing so in a manner that potentially serves two purposes: gets his fans riled up about the media while simultaneously creating a chilling effect on fairly typical journalistic analysis of the Trump administration and campaign.But I wanted to focus in on a separate point: the effective "state media" of Fox News reporting on these lawsuits in absolutely ridiculous ways. Reporter Gregg Re wrote about the NY Times case, and at least included a link to the filing and noted that "lawsuits for libel against media organizations by public figures must clear a high bar." But the reporting on the next two lawsuits, done by reporters Brian Flood and Brooke Singman, were terrible. Both of them claimed that reporting on the filing of a federal lawsuit was a Fox News "exclusive." That's not what exclusive means, guys.Also, while Fox News eventually added a link to the filing in the story about the CNN lawsuit and the NY Times one, it initially did not link to the CNN one, and as of this writing has still not linked to the Washington Post filing. Indeed, as you can see above, the reporters almost gloat over the fact that Fox News "obtained" access to the lawsuit -- and then failed to provide it to their readers. And with the CNN lawsuit, a search of PACER a couple of hours after the Fox News article went live showed no evidence that the case had actually been filed yet. In other words, it's likely that someone associated with the campaign or the lawsuit handed the complaint over to Fox News to "break" the "exclusive" story.And perhaps that explains why the reporting by Flood and Singman is so, so bad. Unlike the story by Re regarding the NY Times lawsuit, this one makes no effort to explain why this lawsuit faces a huge barrier (known as the 1st Amendment). Even worse, it repeats a blatantly false statement from the campaign's "legal adviser" Jenna Ellis:

Another challenger to the First Amendment has appeared. And his name is Dan Patrick, Lieutenant Governor of Texas.Apparently offended by a Senate hearing witness garbed in an anti-police t-shirt, the Lt. Governor welcomed all challengers via Twitter to sue him for violating people's free speech rights.

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Just as the country starts dealing with what the hell it's going to be doing about Covid19, the President and his campaign have decided that now is the time to file laughable SLAPP suits against every one of the media entities on his usual thin-skinned enemies list. First it was the NY Times, then it was the Washington Post, and on Friday, it was the third in his triumvirate of media he loves to hate: CNN. As with the first two, this is yet another Charles Harder joint, and, as with the first two, this is suing over an opinion piece. Also, as with the first two, this is a laughably vexatious lawsuit, in which he is assaulting the very 1st Amendment he has sworn an oath to protect and defend.You can read the CNN opinion piece that the campaign is suing about. It's by Larry Noble, the former general counsel for the Federal Election Commission, and is similar in many ways to the pieces he sued about in the Washington Post, arguing that an interpretation of the Mueller report in a manner displeasing to the President is somehow defamatory. That's ridiculous and everyone involved in this lawsuit should be embarrassed.

Buried beneath the unrelenting marketing for fifth-generation (5G) wireless is a quiet reality: the technology is being over-hyped, and early incarnations were rushed to market in a way that prioritized marketing over substance. That's not to say that 5G won't be a good thing when it arrives at scale several years from now, but early offerings have been almost comical in their shortcomings. AT&T has repeatedly lied about 5G availability by pretending its 4G network is 5G. Verizon has repeatedly hyped early non-standard launches that, when reviewers actually got to take a look, were found to be barely available.In many areas, a "launched" 5G market consists of just a few city blocks. Most phones also don't support the standard yet, and those that do are expensive and have worse battery life because existing 5G antennas are a battery drain. You'll also likely have to pay extra to use 5G, making it not really worth it for those already happy with 4G speeds (most of us).The wireless industry seems oblivious to the fact that by misrepresenting what 5G is, what it can do, and where it's available, it's only associating 5G with hype and bluster in the minds of US consumers.The latest case in point: early tests of the Samsung Galaxy S20 Ultra are showing that phones from AT&T and T-Mobile are displaying "5G" icons when the phones aren't actually using 5G networks to transfer data. While 5G is generally seen as one thing in the minds of most people, the three variants of the technology leaning on low band, mid-band, and high-band spectrum all deliver decidedly different experiences.

This week, our first place winner on the insightful side is That One Guy with some thoughts on Attorney General Bill Barr's various comments defending police and painting America as a warzone:

Over the past three weeks, we've featured Hot Water, Legends of Charlemagne, and 192X in our series about the winners of our public domain game jam, Gaming Like It's 1924. This week, we're focusing on the winner of the Best Adaptation award for the game that best embodied the original 1924 work upon which it was based: The Hounds Follow All Things Down by J. Walton.J. Walton is one of our returning winners, having taken the award for Best Deep Cut last year with Not A Fish, and this year's entry feels in many ways like an evolution of the ideas and mechanics introduced in that game: they both break a work apart into component pieces, and let players discover its hidden meaning (and generate new meanings) by finding connections in a play-space that grows outwards like a puzzle or a map. But The Hounds Follow All Things Down situates this play within its world in an ingenious and beautiful way. It's based on the 1924 novel The King Of Elfland's Daughter by Lord Dunsany — a highly-influential early work in the fantasy genre that wasn't fully recognized as such until decades after its release — which presents readers with the fantastical and majestic world of Elfland and its inhabitants. The game imagines an epic and ancient poem within this world, which has been passed down for generations in countless incarnations, and tasks the players with performing their version of this poem to an audience of elves that is always hungry for new variations.This premise speaks directly to the themes of changing culture and the public domain that directly inspired the game jam, and also to the spirit of fantasy and legend that suffuses the novel. Gameplay takes the form of a series of scenes, performed by the players and generated by drawing prompt cards and placing them in a grid where they form connections with each other. By the end the group will have composed and performed a version of this fictional poem that is entirely unique, yet intimately connected with every other version that comes out of the game and with Dunsany's world of Elfland.One of the most interesting aspects of the game is how the prompt cards were developed: by playing around with the text of the book and a predictive algorithm. The designer's notes describe the process in detail:

All regular readers here will need is to see a headline that includes both the word "trademark" and the NFL to get their eyes rolling. The NFL is notorious in its jealous protection of its intellectual property. In fact, the league goes much further than your everyday trademark bully, chiefly by pretending it has trademark rights that it absolutely does not have. This usually rears its head in the run up to the Super Bowl.But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists. That can be seen most recently in the league going after a seller or parody NY Jets gear on his Shopify site, getting the whole store taken down by asserting trademark infringement.

Two consecutive administrations have engaged in wars on whistleblowers. President Obama used the Espionage Act to punish more whistleblowers and leakers than all other previous administrations combined. President Trump promised to "drain the swamp" and reverse all the damage he believes Obama had done to this nation. Apparently that doesn't include ejecting yes men from prominent government positions or scaling back Obama's anti-whistleblower activities.Now that it's clear Bill Barr's DOJ is just an Oval Office lapdog, Senator Ron Wyden and Representative Ro Khanna are trying to do something to protect journalists who receive and report on leaked documents and other whistleblower activity.The Espionage Act Reform Act [PDF] would strengthen protections for journalists and whistleblowers, shielding them from vindictive prosecutions for engaging in acts protected by the First Amendment and (supposedly) by the federal government itself.A FAQ [PDF] released with the bill makes it clear the new law would not prevent legitimate deployment of the Espionage Act to prosecute government employees who hand government secrets to those not authorized to receive them, as well as foreign spies and other agents of foreign powers.What it would do is keep journalists from being prosecuted under the law and make it easier for whistleblowers to bring their concerns up through the proper channels. Here's what the bill does:

I should preface this piece by noting that there are good reporters at the NY Times who frequently do great work. But there are also a surprising number of dreadful reporters and editors who consistently seem to get key issues wrong. And one example of this is what appears to be a near institutional-level confusion over Section 230 of the Communications Decency Act -- and I say this even while noting that last summer, the Times had an excellent piece written by Sarah Jeong calling out politicians for misrepresenting Section 230. But she should write another piece about her own damn colleagues.Just last fall, we covered multiple stories in which the NY Times got Section 230 so badly wrong that it often had to issue embarrassing corrections, including the time it put forth a full page massive headline blaming 230 for allowing hate speech online, only to have to later run an (online only) correction saying it was actually the 1st Amendment. That was bad. What was worse was that they kept getting it wrong all through the fall. Just a day after that first mistake, they mixed up the DMCA 512 and CDA 230, blaming CDA 230 for copyright infringement, despite the law explicitly saying it doesn't apply to intellectual property. Then there was a big piece that laughably blamed Section 230 for people dying which, astoundingly, made the identical mistake in swapping out DMCA 512 for CDA 230, and where the Times had to run the word-for-word identical correction from the previous time they had made that mistake.So I guess it should be no surprise at all that with the latest attack on Section 230, the dangerous EARN IT Act -- which is a badly re-heated FOSTA with a lump of "break encryption" tossed on top -- the NY Times would get nearly every important detail wrong again. The original title, which has since been changed, claimed "U.S. to Hold Tech Firms Accountable for Spread of Child Sexual Imagery." But that's wrong on nearly every point. First, it's just a bill, it's not the law -- yet the title implies otherwise. This is Journalism 101 stuff that the NY Times absolutely should be better at.Second, the bill is not about "holding firms accountable," but putting more liability on an intermediary to try to ramp up censorship -- and the whole point of the bill is to use that as a wedge by Bill Barr and the DOJ to undermine encryption. But ridiculously the NY Times, acting as stenographers for those introducing the bill, repeated the false claim that internet companies don't currently fight "child sexual exploitation material." Take, for example, this ridiculous tweet from Associate Managing Editor Dean Murphy, claiming that it's a response to "tech companies that do too little to block images of child sexual abuse."But the whole reason the bill is coming about in the first place is that we have so much data about how widespread the issue of CSAM content is because platforms have worked closely with NCMEC to identify and delete such material, sharing hashes to block it from being reuploaded. The major platforms have gone above and beyond, including Microsoft creating PhotoDNA, which helps a bunch of platforms find, detect, and remove child exploitation photos. Facebook, Google, Twitter and more have whole teams that work on making sure such content is identified and removed rapidly. Cloudflare recently built and released similar technology for free for anyone who uses its platform (even at the free level) to find and remove exploitation images.In other words, tech platforms have taken this issue seriously for years, and have worked hard to combat things. That's in contrast to the DOJ and Bill Barr, who have literally failed to abide by Congress' mandate to fight such material. The tech companies are handing over all the information necessary, and Barr's spending his time protecting his boss's buddies from prosecution, rather than actually going after the purveyors of child porn.But, to the NY Times, this is all about tech companies "doing too little" and the US government finally "holding them responsible." It's utter nonsense, and the NY Times, of all papers, ought to do much better.

A few weeks ago there was news that a developer in New York City was being forced to dismantle twenty already-built floors in the building he built too high. If only he had thought to let some graffiti artists paint the walls of these excess floors, because then he could never take them down…I say that, of course, in response to other recent news from New York: the Second Circuit has upheld the awful decision by EDNY to sanction a building owner millions of dollars for daring to paint the walls of his own building. And, in doing so, the Second Circuit has illuminated, in stark relief, what an unconstitutional disaster the Visual Artists Rights Act of 1990 (VARA) is.But before explaining why, first here's some background. This decision, in Castillo v. GM Realty L.P., is the latest in the litigation over "5Pointz." In brief, a developer owned a building in Brooklyn that he wasn't doing anything with, so he let some graffiti artists paint its walls. Eventually he decided that he wanted to do something else with his building, and in response the graffiti artists sued him under VARA, because his plans would cause those paintings that hadn't already been destroyed by the artists [see p. 4] to now be destroyed by him. The district court refused to enjoin the building owner, however, so he went ahead and painted over them. Upon learning of the painting over, the district court then immediately had non-enjoiner's remorse and got so angry at the building owner for doing what it had let him do that it threw the book at him. In fact, it was $6.7 million dollars worth of book it threw in punitive statutory damages, because how dare that building owner paint the building he owned after the court said he could.The appeals court decision doubles-down on all the problems with the original district court decision we flagged before, including how catastrophic it is for the future availability of public art to subject those who allow it on their property to such expensive consequences. It makes true the saying "no good deed goes unpunished" and will ensure that few will ever be inclined to offer such favors ever again.We also highlighted the manifest unfairness of punishing the building owner for doing something that the court had cleared the way for. This unfairness itself presents a constitutional infirmity, particularly in light of the enormous statutory damages award granted, and then upheld, to punish the building owner.

Today's most inexplicable legislative news comes to us from the state of Rhode Island, where legislators are apparently accepting (and submitting!) unsolicited pre-written bills from strangers on the street.

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You may recall a few years back that Harvard Law Professor William Fisher had one of his lectures about copyright taken off YouTube by a bogus copyright claim from Sony Music. It appears that something new has happened to the Engleberg Center at NYU's School of Law, in which a panel discussion on "proving similarity" in copyright law (a big, big topic ever since the awful Blurred Lines decision came down), was taken down itself. It wasn't just taken down by a single bogus claim, but a whole bunch of bogus claims ("whole bunch of bogus claims" is my band's name, by the way).The folks at NYU Law know the law (duh), and pointed out that the use here was unquestionably fair use (short clips, used in an educational setting, etc.) and filed various counternotices. And yet, Universal Music said "fuck that" and refused to release the claim:Now, it's especially interesting that Universal Music Group was the one who refused to back down, given that it was subject to one of the few cases in which it was determined that a copyright claiming entity must consider fair use before making a claim. But, of course, the court also made it clear that if an entity (such as UMG) chose not to do that, there really was no real punishment.As the NYU folks note, it was unclear if allowing the copyright claim to remain would result in multiple strikes against its account, given that there were multiple claims made on this one video. The only way the issue got resolved... is that NYU was able to raise enough a stink within YouTube:

So we've noted a few times how giant telecom providers, as companies that have spent the better part of the last century as government-pampered monopolies, are adorable when they try (then inevitably fail) to innovate or compete. Verizon's attempt to pivot from curmudgeonly old phone company to sexy new media darling, for example, has been a cavalcade of clumsy errors, missteps, and wasted money.Much like that time Verizon tried to launch a "tech news" website that banned reporters from talking about net neutrality or government surveillance. Or the time it launched a Millennial-focused video streaming service nobody wanted to watch. Or the time it bought Tumblr (via Yahoo), banned porn, watched everybody leave, then had to sell the whole thing for a song.AT&T hasn't been much better as it has tried to "disrupt" the TV space. You'll recall the company spent more than $150 billion to acquire Time Warner and DirecTV in a bid to dominate streaming and the online video advertising space. But the deals saddled AT&T with so much debt, it forced the company to raise rates despite rising competition, driving many of these customers to the exits. AT&T also launched a rotating array of video brands (more than 7!) that were so confusing, it even dumbfounded the company's own customers.Hoping to right the ship, AT&T this week launched another variant of its streaming video platform. Despite the fact that US consumers are clearly tired of proprietary cable boxes, sneaky fees, and quickly-ballooning promotional rates, AT&T apparently thought it would be a good idea to "compete" in the streaming space by launching a platform that incorporates all three:

A stash of documents obtained from Utah government agencies has exposed another surveillance tech purveyor who's threatening to disrupt privacy for unquantified law enforcement gains. Banjo is the innocuous name the company does business under, led by a CEO sporting a ZZ Top beard and an urban camo sports coat.The public this is going to affect wasn't cut in on the deal. But nearly everything their tax dollars pay for was. Banjo's proprietary panopticon -- with servers located on Utah government property -- draws from nearly every piece of surveillance tech already deployed by cities and law enforcement. Banjo's contribution is the algorithms it drops on top of all of this:

This Chooseco and Netflix trademark dispute story gets more and more interesting. To catch you up, Netflix produced the Black Mirror iteration entitled Bandersnatch which both was, and was marketed as, a "choose your own adventure" production, similar to the CYOA books from our youth. There was also some dialogue within the production itself that referenced "choose your own adventure." For this, Chooseco, which has a trademark on the phrase, sued Netflix. Netflix tried to get the case tossed on First Amendment grounds, failed, and has since counterclaimed to have Chooseco's trademark cancelled entirely.To highlight how stupid this all is, let's review some press from Netflix's latest iteration of its excellent Carmen Sandiego show, which includes post titles like Kotaku's Carmen Sandiego Is Getting Back To Its Gaming Roots With Netflix's Next Choose Your Own Adventure-Style Special.

In late January, we had an analysis of an absolutely dreadful bill proposed by Senators Lindsey Graham and Richard Blumenthal -- both with a long history of attacking the internet -- called the EARN IT Act. The crux of the bill was that, in the name of "protecting the children," the bill would drastically change Section 230 of the Communications Decency Act, making companies liable for "recklessly" failing to magically stop "child sexual abuse material" -- opening them up to civil lawsuits for any such failures. Even worse, it would enable the Attorney General -- who has made it quite clear that he hates encryption -- to effectively force companies to build in security-destroying backdoors.On Thurdsay, the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) was officially introduced with two additional awful Senators: from the Republican side there's tech hating Josh Hawley, and on the Democratic side, there's encryption hating Dianne Feinstein.This version of the bill has a few changes from the draft version that made the rounds before, but in effect it is trying to accomplish the same basic things: forcing companies to backdoor encryption or lose Section 230 protections, while at the same time opening up platforms to a wide range of lawsuits (a la what we're seeing with FOSTA suits) from ambulance chasing tort lawyers trying to shake down internet platforms for money, while claiming to do so in the name of "protecting the children."Senator Ron Wyden, who authored Section 230 decades ago, had the most succinct explanation of why the EARN IT Act is bad on multiple levels:

It appears whatever modest amount of restraint that our President had regarding his early promise to "open up our libel laws" have gone away. As you may recall, during the campaign he made such a promise, perhaps not realizing that defamation laws are not under the purview of the federal government -- and any changes at the state level are limited by the 1st Amendment of the Constitution (not something he can write away with an executive order). Right before he was inaugurated, he seemed to back down a little on that promise -- telling the NY Times that someone had pointed out to him that with more open libel laws, he was more likely to get sued as well.Over the first three years of his Presidency, while constantly lashing out ridiculously at the press, and the Washington Post and the NY Times in particular -- including his constant authoritarian attack of calling them "the enemy of the people" -- he had not sued. Until last week when he tapped lawyer Charles Harder (who, we'll remind you, was the lawyer in the lawsuit against us), to represent the Trump Campaign (rather than Donald directly) to sue the NY Times over an opinion piece. Trump and Harder have now done so again, this time suing the Washington Post over two opinion pieces.The complaint -- like the one against the NY Times -- is laughable and will be thrown out of court. Again, opinions are not defamatory, and the articles were opinion pieces. The statements they make, that the Trump campaign declares defamatory are basically all ones based on disclosed facts. The complaint is short and not very detailed. It highlights just a single line in each post that it claims is defamatory:

The FBI's inability to rein in its agents is causing it more pain. The Inspector General's report released late last year showed agents performed some very selective editing of probable cause to unlawfully prolong the FBI's surveillance of former Trump adviser, Carter Page.Omitting evidence agents had on hand that Page was not acting on behalf of a foreign power, agents repeatedly extended FISA wiretaps, allowing FBI spooks to continue unjustified domestic surveillance. If you like your Deep State Conspiracy, you can keep it.But the most probable motivating factor isn't FBI agents' personal dislike of Donald Trump. It's more likely their all-encompassing love of surveillance. The FBI (along with the NSA) has abused the FISA court for years, allowing both agencies to perform domestic snooping under the guise of securing the nation from foreign threats. An agency that's willing to pursue "lying to a federal agent" charges when it's unable to find anything else to go after targets with is one that's willing to engage in surveillance long after it knows continued snooping will fail to uncover evidence of criminal activity.The FBI has already been told to revamp its warrant request procedures to ensure this abuse doesn't happen again. More significantly, the Inspector General has recommended one FBI official for prosecution after emails were altered to hide wrongdoing from the IG and (presumably) the FISA court. The FISA court went so far as to question nearly everything the FBI has brought to it, given the evidentiary cherry-picking uncovered by the IG's investigation.In what is possibly a first in FISA court history, the court has banned certain FBI agents from submitting warrant applications to the court. Charlie Savage reports on the latest federal embarrassment.

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Just a week after the 9th Circuit easily upheld the dismissal of Dennis Prager's silly lawsuit against Google for supposed anti-conservative bias, a district court has easily dismissed Rep. Tulsi Gabbard's quite similar lawsuit against Google for... anti-Tulsi bias or some such nonsense. As we pointed out when the lawsuit was first filed, the case stood no chance at all, and was using completely debunked and rejected legal theories.Judge Stephen Wilson made short work of the case, explaining to Gabbard and her Pierce Bainbridge lawyers how the 1st Amendment works, because the theory of it they presented in her case is... not it. Indeed, the court cites to the PragerU ruling from last week:

So we've noted for a while how while a lot of the anger against "big tech" is certainly justified, there's a sizeable segment of this growing DC chorus that's being quietly orchestrated by telecom giants. Companies like AT&T, Verizon, and Comcast just effectively convinced the FCC to self-immolate, dismantling huge swaths of its broadband consumer protection authority (what could go wrong?). At the same time, the DOJ and FCC have been rubber stamping every terrible telecom merger than comes down the pike. When it comes to telecom monopolies, you'll hear nary a peep from the Trump administration.Contrast that to the GOP and Trump administration's sudden, breathless interest in "big tech" monopolies. In case you'd missed it, top telecom lobbyists have spent the last two years pushing ironically for a massive regulatory crackdown on "big tech" companies. For example Mike Powell, former FCC boss turned top cable industry lobbyist, put it this way at a 2018 appearance at an industry trade event:

A couple of years ago, a Reuters investigation uncovered another revamp of immigration policies under President Trump. ICE has a Risk Classification Assessment Tool that decides whether or not arrested immigrants can be released on bail or their own recognizance. The algorithm had apparently undergone a radical transformation under the new administration, drastically decreasing the number of detainees who could be granted release. The software now recommends detention in almost every case, no matter what mitigating factors are fed to the assessment tool.ICE is now being sued for running software that declares nearly 100% of detained immigrants too risky to be released pending hearings. The ACLU's lawsuit [PDF] opens with some disturbing stats that show how ICE has rigged the system to keep as many people detained as possible.

Unless you're somehow living in a cabin without electricity somewhere (in which case, how are you even reading this, bro?), you've heard all about the coronavirus. The virus is the subject of roughly all the news and at least half of our brainwaves these days, with an unfortunate amount of misinformation and spin floating around far too many governments and media. Some folks, such as social media groups used by law enforcement types, seem to think this is all a joke. Others, such as our very own United States Senate, seem to think an illness infecting and killing thousands is the perfect excuse to reauthorize surveillance powers by those same law enforcement types.China, meanwhile, isn't fucking around. While there is some analysis to do as to whether the country did enough in the early stages of the outbreak, not to mention whether it tried to downplay risks and silence dire warnings in a gamble to keep its economy going, there is no question that eventually it went full on heavy-handed to combat the virus. Since then, quarantines of metropolitan cities have been put in place, travel restrictions abound, and shutdowns of commercial and public services are the norm.But China's still gonna China, meaning the government is also banning a popular mobile game about infecting humanity with sicknesses after it surged in popularity in the country.

Back at the end of 2018, a defunct Swedish app developer sued Facebook for the changes the company made to its app platform. As detailed by Cyrus Farivar (then at Ars Technica), it appeared that the lawsuit was somehow connected to the more high profile case filed by the developer of a sketchy bikini-spotting app, "Pikini," Six4Three. At issue was that after Facebook realized that various apps were abusing the access the Facebook platform gave them to suck up data (a la Cambridge Analytica), Facebook drastically scaled back the platform and changed overall directions. Six4Three is fighting to argue that somehow Facebook owed it to developers to keep its platform open.This other company, Styleform IT, seemed to jump on board with a lawsuit that had some striking similarities to the Six4Three suit -- including sharing some of the same lawyers. Either way, Farivar alerts us to the latest in the case, which is that Facebook has filed an anti-SLAPP claim against Styleform IT, arguing that its attempt to sue Facebook and Mark Zuckerberg over the company's moderation choices violate, first, Section 230 of the Communications Decency Act, which allows for Facebook to choose to moderate its platform however it wishes, and that the lawsuit itself is predicated on a 1st Amendment-violating effort to stifle Facebook's expressive decisions.