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The Connecticut State Police have agreed to pay $50,000 to a man its officers subjected to a bunch of Constitutional violations on their way to issuing tickets to him for violations he never committed.Here's a brief description of how this whole thing started:

Back in January, Sonos took some well earned heat for a new product "recycle mode" that effectively bricked older smart speakers the company was no longer interested in supporting. They're now backtracking from the effort after significant backlash.It began last October, when Sonos announced a new "Trade up" upgrade program that let you trade in older Sonos hardware for a 30% discount on new speakers. But the program included a bizarre caveat: to get the discount, users need to put their old hardware into "recycle mode," which effectively bricks the product preventing it from being used again. According to Sonos, once you apply online you'll get the discount immediately, but the speaker system you're trading in goes into a 21 day countdown mode before it's inevitably made useless:

As we noted, there's an effort underway, lead by Senator Thom Tillis' office, to rewrite copyright laws in a manner that is even "friendlier" to Hollywood -- which is kind of insane, given just how far the laws have been bent to favor Hollywood over the years, and against the public. Of course, for the past decade or so, significant updates to copyright law have mostly been a kind of third rail issue in Congress (with a few notable exceptions), as the memory of the SOPA/PIPA protests still lingers. However, with this new approach brewing, it seems that some wish to rewrite that history.Gene Quinn from IP Watchdog -- a site that tends to support an extreme maximalist viewpoint mostly on patents, but sometimes on copyright as well -- has an amazingly weird post, supporting a more maximalist copyright reform, playing off a new paper from ITIF. If you don't recall, ITIF wrote the original paper that became SOPA. It was that think tank's policy proposal that was molded into the awful bill that would have fundamentally changed how the internet worked. So, you should already be somewhat skeptical of ITIF's "policy recommendations" on copyright -- starting with the very idea that "digital piracy" is a "scourge" that requires laws to stop.As we've shown in great detail using the industry's own "piracy" numbers, changes to the law to ratchet up copyright enforcement have failed to decrease piracy. What does decrease piracy is putting in place laws that enable more innovation and experimentation around new licensed services with a variety of business models.But, not surprisingly, that's not the focus of any reform effort. Still, what's most amazing in Quinn's piece is his rather insane attempt to rewrite the history of SOPA/PIPA. If you weren't around when it happened nearly a decade ago, (Gene was, so he has no excuse), a wide coalition of people all got together to point out how dangerous the law would be for a functioning internet, and how it would stifle speech, harm innovation, and (worst of all) break certain technical elements being used to make the internet more secure -- all so Hollywood could continue to tilt at windmills and pretend that "piracy" was being attacked. As more and more people (with very diverse ideological backgrounds) all came to realize how dangerous SOPA/PIPA was, they organized a day of protest on the internet, which set phones ringing throughout Congress, urging elected officials to rethink that plan. One by one, Senators and Representatives dropped their support of the bill, and it never moved forward.That's not how Gene Quinn describes it however. In his version "hacker groups" (?!?) threatened to shut down the internet (?!?!?!?!?) if SOPA passed:

Riding your bike while sending out geolocation data is the hot new crime.Cops are using reverse warrants with increasing frequency, inverting the usual investigation process by demanding info about everyone in a certain area before trimming down the data haul to a list of suspects. It's sort of like canvassing a neighborhood, except investigators approach companies like Google, rather than people who might have seen something.The problem with these dragnets is it makes everyone in the area a suspect. The more heavily-trafficked the area is, the more problematic this process is. Reverse warrants have already resulted in innocent people being jailed. This report by NBC News is another cautionary tale -- one that involves a man who became a suspect in a robbery just because he wandered into the geofence set up by cops.

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Here's one I didn't quite expect to see. Match.com -- the dating website owned by IAC, which owns basically every other major dating site, including OkCupid, PlentyOfFish, Tinder, Hinge, and a bunch of others as well -- has announced that it will support the idiotic EARN IT Act, that would utterly destroy Section 230 and the ability of websites to host user generated content. Match's publicly stated reasons for this are... bizarre. It doesn't actually explain why it supports it. It just says it does, that protecting children is important, and then some mumbo jumbo about the kids online these days -- none of which touches on what the bill would actually do.

To be clear, there are going to be layers of life and death dysfunction that the Coronavirus shines a bright spotlight on, most notable being a shaky US healthcare system and incompetent government leadership. But the outbreak and response is also going to shine a bright light on the broken US telecom market, and the millions of Americans that won't be able to effectively telecommute in a crisis.We've noted time and time again how a lack of competition in the US broadband market means consumers pay some of the highest prices in the developed world for broadband that usually ranks somewhere in the middle of the pack. While we talk a lot about this problem, few actually do much about it. Similarly, few really have noticed how as US telcos effectively give up on upgrading antiquated DSL lines, they're giving cable giants like Comcast even bigger monopolies across vast swaths of America. In turn, those cable giants are facing less incentive than ever to improve customer service, upgrade rural networks, or compete on price.With little competition and federal regulators that are little more than a rubber stamp to their every monopolistic whim, these companies have also been given a green light to gouge US consumers with usage caps and overage fees. Worse, a recent report suggested that 40 million Americans can't get broadband at all, nearly double FCC estimates. The Trump administration and FCC's response to this problem so far has been to blow sweet kisses at the nation's biggest telecom providers in the form of regulatory favors, massive tax breaks for doing nothing, and a lot of overheated rhetoric.This has always been a problem, but as FCC Commissioner Jessica Rosenworcel notes, it's going to become a more obvious problem as millions of Americans are suddenly asked to work (and learn) from home to avoid spreading the virus further and faster:

Last fall we were happy to see the 9th Circuit rule against LinkedIn in its CFAA case against HiQ. If you don't recall, the CFAA is the "anti-hacking" law that has been widely abused over the years to try to shut down perfectly reasonable activity. At issue is whether "scraping" information violates a terms of service, and thus, the CFAA. A few years back, the same court ruled in favor of Facebook against Power Ventures, saying that even though Power's users gave permission to Power and handed over their login credentials, Power was violating the CFAA in scraping Facebook, because the information was behind a registration wall -- and because Facebook had sent a cease-and-desist.In the HiQ case, despite what seemed to be a similar fact pattern, the court ruled against LinkedIn, saying it could not block HiQ's scraping via a CFAA claim, with the main "difference" being that LinkedIn information was publicly viewable, and therefore should be open to scraping. I still don't quite see the difference between the cases -- because in the Facebook situation, once you have a login, the information is effectively available in the same manner, but that is how the courts ruled. After first asking (and not getting) an en banc review (and then asking for more time), LinkedIn has now asked the Supreme Court to weigh in on this issue (hat tip to Media Post). I worry that the court might make things much worse if it does take the case, and block all kinds of scraping.Of course, one thing that's notable since the 9th Circuit ruling came down -- all of the attention that Clearview AI has received over the last few months, for its frightening facial recognition app, built of of scraping "public" social media images and profiles. This use of scraping has convinced some -- even some who seemed to support the HiQ ruling -- that perhaps there should be limits on scraping. I think that's a kneejerk reaction, and focusing in too narrowly on the wrong issue. The issue there is not with scraping, but with the specific use of the data as an attack on privacy going well beyond the internet itself (i.e., tracking and identifying people out in the real world). It's one thing to focus on that issue, as opposed to saying that's an argument against free scraping.At a time when we're so worried about competition, the ability to scrape is incredibly important. It's how competitors can be built in a world with network effects. If other companies can build compatible services, without having to do a deal with Facebook or Linkedin or YouTube or Twitter, that enables more competition much more easily. And yet, too many efforts are being made to cut off that kind of interoperability. The LinkedIn case is just one example. If the Supreme Court does take it up, let's hope they recognize just how important this kind of adversarial interoperability can be, rather than buying into some nonsense about how scraping must be blocked and not allowed.As for the petition itself, the question LinkedIn is asking the Court to review is whether or not bots can scrape websites, even after receiving a cease-and-desist letter:

A year ago, the DOJ subpoenaed Chelsea Manning to appear before a grand jury and provide testimony as it was building its case against Julian Assange, who was subsequently indicted on a very questionable basis. Manning refused to comply with the subpoena, and was put in jail for contempt of court. Many people -- even some supporters of Manning -- seemed split on this move, noting that complying with a lawful subpoena, especially regarding a situation where all information had been previously provided and in which the target is already indicted, is different than being asked to cough up private info. But, given the context of Manning's earlier incarceration and commutation, the whole effort seemed somewhat vindictive.As reporter Dell Cameron pointed out, the DOJ already has all the details of Manning's conversations with Assange. It's difficult to see what more it needed to get from her. And yet, she sat in jail. And considering her history with possible suicide attempts, it seemed (tragically) that being confined again could be incredibly damaging to her. Indeed, yesterday it was reported that she attempted suicide once again.Incredibly, just a day later, the court has ordered her released from jail, noting that her appearance "is no longer needed."

Video streaming is a key part of today's Internet world. According to research from Sandvine, it represents 60.6% of total downstream volume worldwide. The centrality of video to the Internet experience makes video codecs one of the hottest technologies. The most popular format today is H.264, used by 91% of video developers. But H.264 is getting long in the tooth -- its history goes back two decades. An upgrade is long overdue. There's a successor, H.265, also known as High Efficiency Video Coding, or HEVC. However, the use of H.265 has been held back by patent licensing issues. As Wikipedia explains in painful detail, there are two main patent pools demanding payment from companies that use HEVC in their devices. For one of the pools, the patent list is 164 pages long. Partly in response to this licensing mess, and HEVC's high per-device cost, the Alliance for Open Media was formed in September 2015:

America's least valuable renewable resource is school resource officers. At some point, we -- as a nation -- apparently agreed school disciplinary issues should be turned over to law enforcement officers. To be sure, this decision was made without our input, for the most part. Most people agree it's ridiculous to turn rote violations of school policy over to men and women trained in the apprehension and investigation of actual, real crimes like homicide, drug distribution, and any number of day-to-day activities carried out while black.What have we received in return for being forced to part with our souls in exchange for the rare occasions where serious criminal acts occur on school grounds? An endless supply of outrage and disgust, which is the renewable resource no one asked for. What is our take-home from this involuntary exchange?I don't know.Do you love a parade? Because this is one of the most horrible:

On Wednesday, the Senate held a hearing about the EARN IT Act, the bill that is designed to undermine the internet and encryption in one single move -- all in the name of "protecting the children" (something that it simply will not do). Pretty much the entire thing was infuriating, but I wanted to focus on one key aspect. Senators supporting the bill, including sponsor Richard Blumenthal -- who has been attacking the internet since well before he was in the Senate and was just the Attorney General of Connecticut -- kept trying to insist the bill had nothing to do with encryption and wouldn't be used to undermine encryption. In response to a letter from Facebook, Blumenthal kept insisting that the bill is not about encryption, and also insisting (incorrectly) that if the internet companies just nerded harder, they could keep encryption while still giving law enforcement access.

Source: The AtlanticMaya MacGuineas, the president of the Committee for a Responsible Federal Budget, published a frightening article about technology and capitalism in the April edition of The Atlantic magazine. MacGuineas contends that the tech companies are manipulating us into using their products, addicting our children to potentially harmful devices, and stealing our extremely valuable data in exchange for “free” services.The Masses Are Not So Easily ManipulatedMacGuineas warns us of “habit-forming” products and the “Orwellian art of manipulating the masses”:

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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.