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Roughly a year ago, Nintendo launched a war between itself and ROM sites. Despite the insanely profitable NES Classic retro-console, the company decided that ROM sites, which until recently almost single-handedly preserved a great deal of console gaming history, need to be slayed. Nintendo extracted huge settlements out of some of the sites, which led to most others shutting down voluntarily. While this was probably always Nintendo's strategy, some sites decided to stare down the company's legal threats and continue on.One of those sites was RomUniverse, which not only refused to shut down, but essentially boasted that it wasn't scared of Nintendo's legal attack dogs and would continue on. That stance is about to be put to the test, however, as Nintendo has filed a copyright lawsuit seeking enormous damages against the site.

Moviepass is no more. The company's all you can eat movie ticket business model never worked as advertised, and a letter to subscribers informed them that the service would be shutting down over the weekend. Users are supposed to be getting refunds without having to ask for them.MoviePass initially seemed like it might be a plausible idea, though in recent months the company has been exposed for being aggressively terrible at this whole business thing. The service initially let movie buffs pay $30 a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. But it wasn't long before the company began hemorrhaging cash, something made immeasurably worse when it dropped its price point to $10 a month as part of a last ditch attempt to spur growth.A bombshell Business Insider expose offered a stunning look at the company's dysfunction, and executives' interest in focusing on flashy marketing instead of fundamental business basics. Particularly entertaining was the fact that as things began to fall apart, company CEO Mitch Lowe thought it would be a good idea to arbitrarily change the passwords of heavy users so they couldn't actually use the service as advertised:

The US Patent and Trademark Office's side venture into immigration enforcement has come to an abrupt end. It recently instituted a US attorney requirement for foreigners filing trademark applications with the Office. This was apparently done to limit the flow of bogus trademark applications, a large number of which originated in China.This wasn't the problem. The problem was that the USPTO started requiring examiners to verify the immigration status of non-US citizens applying for trademarks. It was no longer enough to provide some form of address verification, like a utility bill. The USPTO was now demanding proof of permanent residence, which would limit applications by non-US citizens living in this country to green card holders.Notably, the USPTO does not require applicants to be legal residents of the United States. And only recently did it even require applicants from foreign countries to retain a US attorney for filing.After receiving a bit of backlash for branching out into immigration enforcement, the USPTO is backing down on its demands for green cards. Paul Singer of WGBH (who broke the original story) has more details on the rollback.

Last time we wrote about Billy Mitchell -- a man who appears to be famous for playing video games and pissing people off -- he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its "Regular Show." The court was not impressed.

Earlier this spring, the Ninth Circuit Appeals Court basically said it's okay for cops to steal property from citizens. This isn't because stealing is okay. It isn't. It's illegal. It's that stealing someone's possessions after they've been seized with a warrant doesn't violate the Constitution.In this case, officers, who were engaged in an illegal gambling investigation, raided a couple's home, walking away with far more property than they officially said they did:

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FOSTA was sold to Congress and the public as a way to "protect women," who (we were told) were being sex trafficked because of a "loophole" in the law. As we warned over and over again at the time, FOSTA would actually put women at even greater risk, and that has been supported by nearly all of the evidence we've seen to date. Beyond the fact that the number of women who are actually victims of sex trafficking has been greatly exaggerated or completely made up to the point of ridiculousness, so far there have been multiple reports showing that the actual impact of FOSTA was to increase sex trafficking by putting sex workers at much greater risk, driving them into the greedy arms of traffickers who promise protection. This has resulted in more women dead and even police admitting that the law has made it more difficult for them to catch traffickers.That's pretty much exactly what many of us predicted before the law was passed, but Congress likes to pass laws and then forget about ever bothering to check whether or not the law did what it promised. So it's interesting to note that Rep. Ro Khanna is apparently planning to introduce a bill to study the actual impact of FOSTA, specifically on sex workers. This was buried in an article about Kate D'Adamo, a lobbyist representing the interests of sex workers on Capitol Hill.

This wasn't how it was supposed to go for AT&T. In AT&T executives' heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has ramped up its efforts to nickel-and-dime users at every opportunity, from bogus new wireless fees to price hikes on both its streaming and traditional video services.Not too surprisingly, these price hikes are now driving subscribers to the exits.The company's latest earnings report indicates that AT&T not only lost another 778,000 "traditional" video subscribers last quarter (satellite TV, IPTV), but it lost another 168,000 subscribers at its DirecTV Now streaming service -- due to "higher prices and less promotional activity." While the stupidity of these efforts (not to mention AT&T's absurdly confusing TV branding) has been apparent to analysts and the press for a while, investors have also now started to criticize AT&T's "growth for growth's sake" mindset.For example, "activist" (a generous term) investor Elliott Management recently conducted a detailed review of AT&T’s business management over the last decade and came away notably unimpressed. In a public letter to AT&T executives, the investor -- whose funds own around $3.2 billion in AT&T stock -- makes it pretty clear that AT&T's obsession with merging is not doing it any favors:

Is it good for governments to supplement their normal crowdfunding efforts (taxes) with something more voluntary? That's the question posed by this great Legally Weird post, which provides a number of examples of city governments asking citizens to dig a little deeper to pay for government things.Whether or not they can is an unanswered legal question. No one appears to have challenged any of these efforts on policy grounds. Considering giving is completely voluntary, the efforts are usually harmless and underfunded. Whether or not they should engage in crowdfunding is a much more interesting question, although most answers will probably boil down to whether or not the person answering agrees with what the funds are being raised for.Government crowdfunding efforts have been initiated to pay for park trash receptacles, to remove a Confederate statue, and to supply a public defenders' office with a much-needed cash infusion. Then there's the case that the Legally Weird post leads with.The city of Bloomfield, New Mexico is asking citizens to pay its legal fees for it. The crowdfunding effort created by Brad Ellsworth, the city's finance officer, hopes to raise enough money to finish paying the $700,000 the city owes to the ACLU.When we ask rhetorically why governments pursue highly-dubious litigation using public funds, this is the sort of thing we're talking about. The city came out on the losing end of a lawsuit filed by the ACLU on behalf of two Bloomfield Wiccans who disagreed with the city's placement of a Ten Commandments monument on the city hall lawn.The city argued the separation of church and state was intact because the monument was paid for and created by private citizens. It even contained a disclaimer to that effect on the monument itself. The case eventually made its way to the Tenth Circuit Appeals Court, which found in favor of the ACLU. The court said that permanent monuments erected on city property are government speech, even if they're privately-funded.The city countered the monument wasn't permanent. It said those providing the monuments needed to re-apply for prime city hall lawn position every 10 years. The court said there was no meaningful difference between ten years and permanent when the city placed no limit on renewals. The city petitioned the US Supreme Court, but the top court saw no reason to take up the case.Fortunately, the city's residents didn't have to pay for this litigation. The Alliance Defending Freedom provided the city with pro bono legal services, saving taxpayers a considerable amount of money. But the city lost, and it now owes $700,000 to the ACLU.Obviously, the city never prepared for this eventuality. The city has until 2021 to pay this debt off and has decided to make its first payment of $233,000 to the ACLU this year, using city budget funds. Its crowdfunding effort asks anyone -- city residents included -- to cough up the remaining $467,000. Its GoFundMe page contains a very self-serving statement that portrays the city as a fierce First Amendment warrior, rather than a participant in a project that violated the Establishment Clause of the Constitution.

Our first place winner on the insightful side this week is That One Guy with a response to our post about the Houston police officer who is facing felony murder charges over a botched raid:

Five Years AgoThis week in 2014, popular websites across the web participated in Internet Slowdown Day to demand net neutrality from the FCC — driving 1,000 calls per minute to Congress at some points, for a total of 300,000 calls plus 2-million emails and 700,000 FCC comments. It also spurred the big cable companies to waste their money on ads misleadingly pretending to support net neutrality themselves.Also this week in 2014, a court ruling gave a big win for fair use and against "hot news", one cab company was extra-angry about Uber and labeled it a cyber-terrorist group, and newly released memos justifying warrantless wiretapping showed crazy levels of executive branch authority.Ten Years AgoThis week in 2009, Hollywood was continuing its zealous war against Redbox by fearmongering about kids renting R-rated movies, the recording industry in Japan was working with the government on a plan to disable phones that are used to listen to pirated music, yet another DVD release of a classic TV show had to replace its music with new generic stuff due to licensing headaches, some ridiculous exaggeration was exposed in the UK's oft-repeated figure of 7-million file sharers, we got a look at the RIAA's copyright propaganda for schools, and there was yet another attempt to turn content into physical property with universal DRM. After all this, it was nice to read a judge eloquently explaining why copyright is not property... all the way back in 1773.Fifteen Years AgoThis week in 2004, the war against spam continued as WiFi spammers got caught and a major spam ISP finally kicked off 148 spammers — but so did the counterattacks, with a lawsuit against the spam blacklist headed to court and everyone bracing for the incoming deluge of election spam, though there was hope that might not be as bad as expected. One strategy that definitely didn't make sense was combating spam by turning email into a walled garden.Meanwhile, a university was trying to ban independent wifi networks with questionable authority, congress was moving forward with a draconian plan to criminalize file-sharing, and we saw the terrible appeals court ruling in Bridgeport v. Dimension that eliminated the de minimis defense for music sampling (even when the sample is completely unrecognizable) and issued the absurd edict "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

It was only a few weeks back that we were discussing Liverpool FC, a soccer team playing in the UK Premier League, attempting to get a trademark for "Liverpool", the city in which it plays. While the club has made a point of reminding the public that its application is quite narrow, limited specifically to products and services revolving around soccer, that same public has pointed out there are both other indpendent soccer clubs in the city that would technically be infringing on that applied-for mark and that there is a culture of independent retailers selling fan gear that would get caught up in this as well. Liverpool FC, meanwhile, maintains that it wouldn't go after either group, but instead are interested only in protecting its fans from mass-makers of counterfeit apparel and the like.Which makes it somewhat strange that it's those very fans that are now organizing a protest against the team for its attempt to trademark the city's name.

A few weeks ago, Techdirt wrote about Denmark reviewing 10,000 court verdicts because of errors in mobile phone tracking data that was offered as evidence in those cases. At that time, it wasn't clear how many of the group were affected by the unreliable data. However, the Guardian reports that 32 people have already been freed. Given the large number of cases involved, it seems unlikely that many have been reviewed in such a short space of time. If that's the case, it is possible that quite a few more verdicts will be overturned, and more people released. Companies providing mobile phone services in Denmark are naturally keen to distance themselves from this mess. Jakob Willer, speaking on behalf of the country's telecoms industry association, said it was not their job to provide evidence:

The Ninth Circuit Appeals Court has resuscitated a lawsuit against Malwarebytes filed by litigious software company Enigma. Enigma Software tends to sue people who say bad things about its antivirus offerings and since there's a lot of people doing that, the company seems to spend a fair amount of time in court.Enigma ran into the Section 230 wall in the lower court by claiming Malwarebytes' designation of its software as a threat was an unfair business practice. It said Malwarebytes scans were locating its offerings on people's computers, informing them the software was shady, and quarantining it. Enigma alleged this was anti-competitive. And if it wasn't that, it was probably some sort of trademark thing, blah blah blah Lanham Act. (This claim sneaks into a lot of lawsuits involving Section 230 protections and Enigma tried this tactic in a defamation lawsuit it filed against BleepingComputer. It's a dodge, not a cognizable legal argument.)Malwarebytes prevailed at the district court level by citing a Ninth Circuit Appeals Court ruling finding that filtering software or services is also protected by Section 230 of the CDA. In the cited case, antivirus software company Kaspersky secured a dismissal from a lawsuit brought by an aggrieved adware purveyor. That decision said any material a provider feels is objectionable (in this case, adware) can be removed by the provider.That's what the court said then. What it's saying now is something different, and that appears to be only because the Ninth Circuit feels Malwarebytes and Enigma Software are actually competitors, even if Enigma has yet to earn the same amount of respect Malwarebytes has. From the decision [PDF]:

Mississippi legislators -- apparently guided by "threatened" cattle farmers -- decided to rewrite its product-labeling laws. It enacted a statute forbidding producers of non-meat products from using meat-associated terms to describe their products. This unconstitutional requirement was put in place to supposedly reduce customer confusion, but the labels targeted made it clear their products -- hamburgers, hot dogs, etc. -- contained zero meat."Vegan hot dogs" was no longer acceptable. Neither was the ubiquitous term "veggie burger." The law required plant-based products to disassociate themselves completely from the meat products they were emulating. Very few people have been tricked into buying veggie products when they meant to purchase beef. But consumers looking to replace meat products with veggie alternatives might find it a bit more difficult to figure out what products they're replacing when the descriptive terms aren't all that descriptive.The state was sued by Upton's Naturals Co. and the Plant Based Food Association. Represented by the Institute for Justice, the plaintiffs sought an injunction blocking the law's enforcement and a declaration that the law itself was unconstitutional.It appears the state has decided to craft a new statute -- one that doesn't violate the First Amendment -- rather than continue to fight this in court. Scott Shackford has the details at Reason.

Just a few months ago, as part of our ongoing "content moderation at scale is impossible" series, we wrote about how Facebook has spent over a decade now struggling with how to deal with naked female breasts. There are a lot more details in that post, but it initially had a "no nudity" policy, but that got difficult when someone would post famous artwork or breastfeeding mothers. Facebook's policy keeps trying to change to adapt, but no matter what it does it keeps running into more and more edge cases.For the last eight years, Facebook has been fighting in French courts over something similar. A French school teacher had post a copy of Gustave Courbet's 1866 oil painting, The Origin of the World. I'm not going to post a thumbnail here, because I'm sure it'll set off all sorts of other content moderation algorithms. You can click above to see it, though it's basically a painting of a naked woman, from a point of view in between her legs looking upward (which may or may not be SFW depending on where you work, so be warned). Facebook cancelled the teacher's account and he sued.Much of the dispute resolved around jurisdiction. Facebook wanted the case handled in California. The teacher, not surprisingly, wanted it tried in France. The teacher won. Back in early 2018, the French court ruled that Facebook was wrong to shut his account down -- but since the teacher had apparently been able to sign up for a second account, said he wasn't entitled to any damages. The teacher was going to appeal, but, according to Artnet, the case has now settled, with both parties agreeing to make a donation to Le MUR, which is described as "the French street art association."Given the situation, that seems like a perfectly reasonable end result (though an 8 year legal dispute does not). I also find it somewhat amusing that a French court decided to get into the business of determining whether or not Facebook's moderation choices were "wrong," but again it highlights the point that we've raised over and over again. Everyone who thinks it's easy to make these moderation decisions is wrong. Even with this particular piece of art, I'd bet there are a big difference in opinions (especially between the US and France). Just a few months ago, we had various US Senators and some prudish panelists whining about the awful content that kids were exposed to online. I'm guessing they would not have approved of Courbet's work showing up on Facebook at all.And, of course, that helps to demonstrate the problem. What is Facebook supposed to do here? You have a French court telling them it must be left up, while you have American politicians saying stuff like this must be taken down. There is no right answer, which is kind of the point.

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It's good to know government employees are hard at work. (This statement mainly applies to male employees.)Throughout the past several years, internal investigations have rooted out a bunch of government employees who are wasting tax dollars by visiting websites and viewing content no doubt strictly prohibited by workplace policies. We're talking porn. Lots of porn. Just incredible amounts of porn consumption.These apparently non-essential personnel have racked up some amazing porn stats. Some SEC employees were reprimanded (but not fired) for spending up to 98% of their workdays watching porn. An employee at the US Geological Survey's [cough] EROS Center visited 9,000 porn webpages en route to infecting the agency's computer system with malware. An EPA employee spent their work hours compiling a comprehensive library of over 9,000 pornographic images.It's not just the federal government either. The City of Baltimore's Department of Public Works discovered an employee was spending about half the work week (~20 hours) watching porn on the clock. Over in the UK -- home of the always-impending porn filters -- government employees accessed porn 300,000 times over a 14-month period.Porn consumption is apparently a government tradition -- one that spans the world and is celebrated by all levels of governing bodies.Here's yet another data point, emanating from the US Department of Justice. (via NextGov)The DOJ's Inspector General was tipped to some in-office porn viewing by a high-ranking official. This was no office drone. This was a Deputy Assistant Attorney General. Its investigation confirmed what was suspected: more porn consumption on a government computer.From the one-page summary [PDF] released by the OIG:

A couple weeks ago, we noted that the judge in Virginia presiding over Devin Nunes' bullshit censorial lawsuit against Twitter, some parody Twitter accounts, and political strategist Liz Mair, had demanded that Twitter reveal to the judge who was behind the two parody accounts (for "Devin Nunes' Cow" and "Devin Nunes' Mom.") As we pointed out at the time, this request was highly unusual. Yes, the judge was in the process of determining if the case did not belong in Virginia, so he wanted to know if the people behind the accounts were based in Virginia, but there are ways to do that that protect the anonymity of the account holders (anonymity being a 1st Amendment right). Specifically, he could have just asked whether or not the account holders appeared to be based in Virginia.We also wondered if Twitter would refuse the request -- as it has done in the past. And the answer is yes. Twitter has told the judge it won't comply, but did say that neither of the account holders lived in Virginia -- which should satisfy the only legal reason why the judge might want to know who they were.

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.With the federal government effectively in the cable, telecom, and broadcast sector's back pocket at the moment (aka regulatory capture), the lobbying focus has shifted toward the states, where the industry has similarly tried to claim that holding them accountable for decades of bad service violates their First Amendment rights. For example when it was found that Charter lied about meeting its recent merger conditions and New York tried to hold it accountable, Charter claimed doing so would violate its 1A rights.The argument popped up again this week in a Comcast lawsuit against the state of Maine, filed because the state passed a law that would force companies like Comcast to sell cable TV channels à la carte:

Over the past several weeks, we have been discussing a ridiculous trademark application filed by the Ohio State University for the word "the." This entire episode has been a painful reminder of the fallout of the permission culture that has risen up out of strict IP enforcement and an overly-permissive USPTO. The idea that so common a word could be locked up by a public university for any market designation is, ahem, patently absurd. So absurd, in fact, that even OSU alumnus and college football commentator Kirk Herbstreit thought the whole thing was silly.Still, given the Trademark Office's history of approving far too many absurd trademarks, there were still some holding their breaths awaiting its decision on the application. For now, at least, the USPTO has rejected OSU's application, though not quite as forcefully as it should have.

One of the frustrating aspects of the "debate" (if you can call it that) over encryption and whether or not law enforcement should be able to have any kind of "access" is that it's been no debate at all. You have people who understand encryption who keep pointing out that what is being asked of them is impossible to do without jeopardizing some fairly fundamental security principles, and then a bunch of folks who respond with "well, just nerd harder." There have been a few people who have suggested, at the very least, that "a conversation" was necessary between the different viewpoints, but mostly when that's brought up it has meant non-technical law enforcement folks lecturing tech folks on why "lawful access" to encryption is necessary.However, it appears that the folks at the Carnegie Endowment put together an actual working group of experts with very varying viewpoints to see if there was any sort of consensus or any way to move an actual conversation forward. I know or have met nearly everyone on the working group, and it's an impressive group of very smart, and thoughtful people -- even those I frequently disagree with. It's a really good group and the paper they've now come out with is well worth reading. I don't know that it actually moves the conversation "forward" because, again, I'm not sure there is any conversation to move forward. But I do appreciate that it got past the usual talking points. The paper kicks off by saying that it's going to "reject two straw men," which are basically the two positions frequently stated regarding law enforcement access to encrypted communication:

The increasingly-awful story of the Houston Police Department's botched drug raid continues to develop. Earlier this year, the Houston PD raided the house of Dennis Tuttle and Rhogena Nicholas. By the time the bullets stopped flying, the couple of 21 years was dead.The raid was predicated on a tip from a confidential informant who said he saw lots of heroin and some guns in the residence while performing a controlled buy. No heroin was found. The gun described by the informant was never found. What was found was personal use amounts of marijuana and cocaine, neither of which were mentioned by the informant.The informant never existed. The heroin supposedly purchased from the residence actually came from the console of an officer's police car. The affidavit obtained by Officer Gerald Goines was apparently filled with lies about a controlled drug buy that never happened and statements from an informant who had never visited the Tuttle residence. The actual tip the officers acted on was one phoned in by Rhogena Nicholas' mother, who complained about the couple using drugs in their house.Goines wasn't the only liar. Other officers on the scene lied as well. The narrative officers presented was one of being greeted by weapon-wielding residents during the no-knock raid. An independent forensic examination of the home contradicted many of the claims made by officers in their reports.The police chief finally distanced himself from the officers' actions, but only after enough information had come to light to show everything about the raid was a lie. Investigations have been opened on the PD and the officers involved. The two officers who led the raid are having their past investigations examined by the PD and the DA's office says this could affect as many as 14,000 cases. Not that the Houston PD is exactly being cooperative. The DA's office has had to threaten legal action to get the department to turn over paperwork linked to Officer Gerald Goines and Officer Steven Bryant.These officers are no longer facing multiple investigations into the drug task force work. They're now facing criminal charges as well.

Another day, another data privacy scandal. This time the focus is on the Department of Motor Vehicles, which has been busted selling DMV user data to a laundry list of third parties, without always making such financial relationships or data transfers clear to patrons. Some of the data wound up being sold to the usual suspects (auto insurance companies being the most obvious), but much of it is routinely sold to more dubious third-party outfits and private investigators. And while some of the data is in bulk and "anonymized," we've long noted that doesn't mean what you think it does.The collection and sale of sensitive user data is particularly problematic for those dealing with stalkers or other jackasses:

Earlier this week, EFF received an email claiming that our body-camera police officer illustration (shown in the banner above) violated the sender's copyright in a graphic they used to illustrate a tweet (cropped screenshot shown below). The email demanded we remove the image or provide a link to their e-commerce website, which sells police body cameras. For those interested in Search Engine Optimization (SEO), a link from EFF can be very beneficial to their page ranking. The funny thing was, the police officer illustration is an original EFF work.It's not a problem for someone to use our works in their own—they are available to the public under a Creative Commons attribution license—but that certainly doesn't give a claim against our original. And their graphic had no attribution. (The Action Camera skateboarder illustration on the left appears to be an Adobe stock image.)For EFF, this was more amusing than threatening. We knew instantly that we needn't worry about the implied threat, and if things went badly, we probably have more IP litigators per capita than any entity that's not a boutique IP litigation firm. So, we wrote back explaining the situation, and expect that will be the end of this.But for many entities, it can be quite scary. Even if they are secure in their rights, the potential for a costly or time-consuming conflict may lead to a rational choice that a link is a low-cost solution. They might wonder if this misunderstanding will escalate into a DMCA takedown, potentially interfering with the availability of the page until the improper notice is resolved. Even if they disregard such a weak threat, dealing with it has the serious potential to take time away from running their operation.We have not named the email's sender. There is no indication that they are in the business of copyright trolling, it likely was a simple mistake, and we had no desire to use our platform to mobilize a shame campaign. Moreover, we're well aware of the Streisand effect and see no need to provide the very link they seek in our discussion of why they shouldn't have demanded a link. Instead, we hope that this example serves to show how copyright demands can be misused. Below is our response:

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Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered "intellectual property," and that focusing on the use of "property" helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves "free market supporters" or, worse, "against government regulations and handouts." It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were "property", contorting themselves into believing that these government handouts were somehow a part of the free market.For years I got strong pushback from people when I argued that copyright and patents were not property -- and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the "right" that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of "property", when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.Either way, it's great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to "free market" and "property rights" supporters why "intellectual property is not property." If you've been reading Techdirt for any length of time, most of the arguments won't surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

AT&T's efforts to dominate the online streaming (and advertising segment) has had a bit of a rocky start. After spending more than $150 billion to acquire both DirecTV and Time Warner in recent years, AT&T's been losing subscribers hand over fist anyway. Part of the problem is that the company acquired so much debt in the course of the deal (AT&T is among the most indebted companies in the world), AT&T's been forced to raise rates on subscribers. Given the rise in streaming competitors, those users are wisely just heading for the exits.But AT&T's been making some notable missteps on the branding front as well. The company keeps launching, scrapping, and then re-launching so many different TV options it's confusing the hell out of customers. As the company stumbles its way into building one cohesive brand, it has gotten kind of, well, silly:

Another public university is getting sued over its unconstitutional speech policies. While schools can place some restrictions on students' speech, they can't just carve out blanket exceptions that allow them to treat the First Amendment as a privilege it might extend to students if they've filled out all the proper paperwork.Jones County Junior College student Mike Brown managed to First Amendment his way right into a conversation with the campus police chief. At this school, you have to ask permission before you can speak to other students, apparently. Here's the write-up from FIRE (Foundation for Individual Rights in Education), which is representing Brown in his lawsuit against the college.

We don't spend a great deal of time here patting the USPTO on the back for getting things right, but occasionally the agency surprises us. When it comes to trademarks being granted for city or town names, the Trademark Office has a higher bar for approval but is still far too permissive. When it comes to widely used nicknames for cities and towns, the Trademark Office's rubber-stamp methods have caused issues. The point here is that, whether its a city's name or nickname we're talking about, neither are good source identifiers, given both their wide use and the fact that both serve as geographic descriptors.But, again, sometimes the Trademark Office gets things right. Such is the case with Soda City Market, a farmer's market organization in Columbia, SC, that applied for a trademark on its name.

A few weeks back, we wrote about the NY Times absolutely terrible front page of the Business Section headline that, incorrectly, blamed Section 230 for "hate speech" online, only to later have to edit the piece with a correction saying oh, actually, it's the 1st Amendment that allows "hate speech" to exist online. Leaving aside the problematic nature of determining what is, and what is not, hate speech -- and the fact that governments and autocrats around the globe regularly use "hate speech" laws to punish people they don't like (which is often the marginalized and oppressed) -- the entire claim that Section 230 "enables" hate speech to remain online literally gets the entire law backwards.In a new piece, Carl Szabo, reminds people about the second part of Section 230, which is what says that websites aren't held liable for their moderation choices in trying to get rid of "offensive" content. Everyone focuses on part (c)(1) of the law, the famous "26 words" that note:

I don't know much about Taylor Swift, but I do know two things. First, she apparently has built a career out of making music about men with whom she's had breakups, real or fictitious. Second, it sure seems like she spends nearly as much time gobbling up every type of intellectual property right she can and then using those rights to threaten everyone else. She trademarks all the things. She tosses defamation and copyright claims around to silence critics. She sues her own fans just for making Etsy fan products. Some of these attacks are on more solid legal ground than others, but there appears to be a shotgun approach to it all.Which is why perhaps it only comes as a mild surprise that Swift once threatened to sue Microsoft. Over what, you ask? Why, over Microsoft's racist chatbot, of course!

Doc Searls has a great recent blog post in which he rightly points out why Bernie Sanders' "plan to save journalism" is completely misguided and will fail. It's worth reading -- with the key point being that Sanders' plan to save journalism assumes a world that does not exist, and one where heavy regulations will somehow magically save journalism, rather than stifle it. As Searls notes, that's not the world we live in. We live in a world of informational abundance, which changes everything:

Let's hope this isn't the only scope discussed by the court handling this case, detailed here by Thomas Brewster of Forbes.

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In the midst of this "techlash" atmosphere, it seems that basically every industry whose business models have been upended by competition brought about by the internet is now cynically using the anger directed at successful internet companies as an opportunity to kneecap the wider internet. We've recently pointed out that many of the efforts to undermine Section 230 of the CDA (the law that makes much of the good parts of the internet possible) are actually being pushed by Hollywood out of frustration that they're no longer able to maintain their monopoly rents in a gatekeeper business. Similarly, the big telcos have been using this opportunity to pull a "but look over there!" to point at the big internet companies, while trying to distract from the much greater privacy violations they regularly engage in.Not to be left out, it appears the hotels are now making a major push to attack the internet, because they're sick of competing against Airbnb. This is no surprise. Two years ago, we wrote how the hotel industry had mapped out a secret plan (which was leaked to the NY Times) to kneecap Airbnb through bogus litigation and getting friendly politicians to help them attack the company. Sometimes politicians were more obvious than others about helping the hotel industry out in this plan, like the time that (now disgraced) former NY Attorney General Eric Schneiderman flat out admitted that he was attacking Airbnb to protect local hotels from competition.As we noted a few weeks ago, a former top hotel exec, Ed Case, got elected to Congress last year. Case was actually on the board of the hotel industry's main lobbying group, the American Hotel & Lodging Association (AHLA). We wrote that he was planning to introduce a bill to undermine Section 230 at the behest of his former employers. On Monday of this week, he did exactly that with a press release that quotes the AHLA (leaving out that until just recently, Case was on the board of that organization (corruption? what corruption?)). The bill, H.R.4232 or the Protecting Local Authority and Neighborhoods Act (PLAN Act), would amend Section 230 to make it clear that it does not apply to Airbnb. Literally, that's the entire point of the law.Case's explanation of the bill is hilariously misleading:

We've noted for a while that 5G is being aggressively over-hyped. While it's an important evolutionary step in wireless connectivity, it's far from the revolution hardware vendors and cellular carriers are promising. Verizon, for example, insists that 5G is the "fourth industrial revolution" that will almost miraculously spur the smart cities and smarter cars of tomorrow. While 5G is important (in that faster, more resilient networks are always important), the idea that 5G will fundamentally transform the world tends to overshoot the mark.Carriers haven't quite learned yet that over-hyping the standard only serves to associate it with disappointment in the minds of consumers. Verizon, for example, has crowed widely about the company's early 5G launches, but when reporters and users actually try to use these networks, they routinely find they're barely available. Lately, Verizon's marketing department has been heavily hyping the company's launch of 5G in around 13 NFL stadiums, once again insisting this is going to be a paradigm shift that changes the woooooooorld:

Following the Christchurch shooting in New Zealand, governments sprang into action to declare the internet to be the real villain. It wasn't. And isn't. But that didn't stop a strange series of policies from being enacted.The New Zealand censorship board declared footage of the shooting -- captured by the shooter himself -- illegal. Once it had made it illegal to share or possess, it went after those who did, resulting in at least one person being sent to prison for making the footage available online.The Australian government followed suit. It declared the footage illegal, putting pressure on social media companies and service providers to take down uploaded copies "expeditiously." This term wasn't defined in the rushed legislation. Nor were companies given any guidance on what amount of time was considered "reasonable" to react to reports of uploaded footage in order to avoid $168,000 (per incident) fines. Presumably the Australian government would know reasonableness when it saw it and fine accordingly.Companies did what they were vaguely instructed to do. So did Australian internet service providers. The Guardian reports blocking efforts began immediately, with ISPs targeting any site where the footage was hosted. To date, these efforts have resulted in the blocking of 43 websites. It appears ISPs are maintaining their own blocklists, since the government hadn't bothered to hand down any guidance on its recently-passed "abhorrent content" law.Months after the fact, the Australian government is finally codifying the block orders it's issuing.

With us now getting on into nearly a year of the new PC gaming platform war between Valve's Steam platform and the Epic Store, you might have forgotten how this all got kicked off. Before Epic pulled a Healthcare.gov with its platform release, and before crowdfunding efforts to fund PC games began taking a hit, and even before this whole thing transformed into mostly a PR war being fought with the PC gaming fanbase, there was Metro Exodus. The game was the first major title to announce an Epic Store exclusive deal for 6 months and that announcement came shortly after the game also became available for pre-order on Steam. This, understandably, pissed off a great many people. Including, it seems, the folks at Steam, who put out a statement on the game's page. The results were as predictable as the sun rising in the East.

Hopes that the Ninth Circuit would correct its earlier awful ruling against HomeAway and Airbnb were dashed recently when the court denied the petition for rehearing. We had supported that petition because the original decision read in an exception to Section 230's statutory protection that is not present in the statute, is out of step with prior precedent (including in the Ninth Circuit itself), and threatens the Internet economy. Unfortunately, now that rehearing has been denied, any platform that facilitates commercial speech, and whose revenue model depends on facilitating the transactions arising from commercial speech, will no longer be able to reliably depend on Section 230's protection, at least not in the Ninth Circuit.It also remains vulnerable in the Third. The Oberdorf v. Amazon case allowed a products liability claim to proceed against Amazon based on Pennsylvania law. Subsequently, a district court in New Jersey – a state within the Third Circuit, for which the Oberdorf would be binding precedent – decided to allow a similar products liability claim to proceed against Amazon based on New Jersey law, finding that, under its relevant statute, Amazon is a "seller" for purposes of its products liability law.All these decisions are troubling, and the New Jersey one pointedly illustrates why. Not only does this decision incorporate the same analytical defects as the previous decisions, but it also reflects how all the ignorance about and hostility toward Section 230 of late has been infecting the courts.As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech. In the case of Amazon, it is other people who say they have something to sell. Denying these platforms Section 230 protection for this sort of user speech means that few, if any, platforms will be able to remain available to facilitate similar commercial speech offering something to sell. Before cheering how this state of affairs might hobble Amazon, however, bear in mind that it will hobble ANY platform that offers independent merchants a chance to offer their goods to a wider audience - including platforms that might be able to compete with Amazon. The more distaste we have for large, incumbent market players, either as platforms or even direct merchants, the more this turn of events should alarm us, because it will ensure we remain stuck with the ones who are already well-capitalized enough to endure this liability minefield and prevent us from getting any new ones.In most of these cases the courts tried to pretend that there is something different about Amazon's relationship with third party vendors that should put them on the hook for their liability. In this case, the New Jersey court didn't like that Amazon fulfilled orders, or otherwise reserved the right to exercise editorial control over the listings it hosted.

The future of the internet is... uncertain. We've always been optimistic about what technology and innovation can achieve, and that hasn't changed, but right now it often feels like we're facing more new challenges and more reactions to them (including dangerous ones) than ever, and pessimism about the internet seems to be at an all-time high. This week we're joined by EFF Executive Director Cindy Cohn, who recently wrote an essay (pdf link) about internet pioneer John Perry Barlow and how his famous tech optimism was more complex — and more aware of challenges — than it is often portrayed, to discuss a positive future for the internet, and how we get there.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.

So we've noted that the FTC's settlement over the Equifax hack that exposed the public data of 147 million Americans is a bit of a joke. The FTC originally promised that impacted users would be able to nab 10 years of free credit reporting or a $125 cash payout if users already subscribed to a credit reporting service. But it didn't take long for the government to backtrack, claiming it was surprised by the number of victims interested in modest compensation, while admitting the settlement failed to set aside enough money to pay even 248,000 of the hack's 147 million victims.This week, the Equifax Settlement Administrator sent out an email doubling down on the dysfunction, demanding that users who applied for their $125 prove they already have credit monitoring services. Users are being told they need to prove they subscribe to such services by October 15, or they won't get the money. Worse perhaps, the notice reiterates that even if you can prove you subscribe to credit monitoring services, you probably won't get anywhere near $125 because the settlement failed to set aside enough money to fulfill even a fraction of its promise:

Two years after a lower court correctly decided that LinkedIn couldn't use the CFAA to stop third parties from scraping their site, the 9th Circuit appeals court has upheld that decision in a very important decision for the future of an open web. For a long time we've talked about how various internet companies -- especially the large ones -- have abused the CFAA to stop competition and interoperability. If you're unaware, the CFAA is basically the US's "anti-hacking" law, which was designed to make it a crime (and a civil infraction) to "break into" someone else's computer. But for years it's been interpreted way too broadly (to the point that it's referred to as "the law that sticks" when trying to get someone for "doing something bad on a computer."While we have tremendous concerns about criminal CFAA prosecutions, the use of CFAA in civil contexts by companies trying to block competition is perhaps just as troubling. We've called out Craigslist and, especially, Facebook for abusing the CFAA to stop companies from building on what they've built and providing a better service. To this day, we remain troubled by the 9th Circuit siding with Facebook in declaring the CFAA an okay tool to block a third party from building a better service for Facebook users and believe (somewhat strongly) that this particular decision and abuse is part of why Facebook is in the position its in today and that there are no significant competitors it faces. In that decision, the 9th Circuit ruled that because Facebook had sent a cease-and-desist letter to Power, any access after that was now "without authorization" and thus violated the CFAA.And that's part of what makes this new HiQ v. Linkedin decision, done by the very same court, so fascinating. It seems to go the other way. While Facebook was allowed to use the CFAA to stop Power users from scraping content from Facebook (with permission from the account holder), here, the 9th Circuit has ruled that LinkedIn can't (at this stage) use the CFAA to stop HiQ from scraping its site.The fact that the results in HiQ and Power came out differently deserves some exploration -- and we can highlight ways in which both decisions are weird and troubling. But from a pure policy standpoint, saying that scraping a site does not violate the law is an undeniably good thing and we should be happy with the overall outcome. Though, the it's now set up a weird system where the 9th Circuit itself seems to disagree with itself and there's a wider circuit split -- meaning it's possible that the Supreme Court could take up this issue at some point.In discussing the CFAA, this 9th Circuit panel seems to fully understand the intention of the CFAA: to stop hacking. Not to stop companies from blocking people/companies they dislike:

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The White House has decided we're going to power through our mass shooting crisis by aiming our surveillance apparatus in the direction of the mentally ill. In addition to claiming we might be able to find the next mass shooter by tracking fitness trackers, the administration is pushing for a mental health-based "solution" that would increase the stigma of not being "normal."

Over the last few months, Google, Amazon, and Apple have all taken a significant beating on Wall Street amidst rumblings of looming antitrust investigations by the DOJ and FTC. Google, we're told, is subject of a looming antitrust probe by the DOJ. Amazon, we've learned, is facing growing scrutiny from the FTC. Apple stock also briefly did a nose dive on the news that it too may soon be subject to a significant new antitrust probe.On its surface, many of these actions aren't all that surprising. After all, experts have noted for a decade than US antitrust enforcement has grown toothless and frail, and our definitions of monopoly power need updating in the Amazon era. Facebook's repeated face plants on privacy (and basic transparency and integrity) have only added fuel to the fire amidst calls to regulate "big tech."But while Silicon Valley faces an endless cavalcade of outrage, the telecom sector is suddenly seeing no scrutiny whatsoever. Whether it's the speed at which the problematic T-Mobile merger is being shoveled through the DOJ and FCC or the blind eye being turned to major telecom privacy scandals (like location data), telecom lobbyists have been on a successful tear convincing well-heeled DC lawmakers to ignore the massive, obvious monopoly, privacy, and competition issues inherent in telecom to focus exclusively on the problems in "big tech."Yet somehow, this asymmetrical policy paradigm is still treated as entirely coincidental in press coverage. Only recently have some news outlets started to notice how well things have been going for telecom lately in DC (Axios calls it telecom's "sweet summer of revenge"). Outlets have even started to finally realize that with former telecom lawyers now running the FCC and DOJ (Ajit Pai and Bill Barr), that is not coincidentally being reflected in federal policies attempting to hamstring telecom's competitors:

Amazon has developed facial recognition tech it's inordinately proud of. Known as "Rekognition," it's not nearly as accurate as its deliberately misspelled moniker suggests it is. It drew Congressional heat last year when it misidentified a number of Congress members as criminals.There has been no interplay between Amazon's Rekognition software and the Ring doorbell cameras its subsidiary is pushing to cops (who then push them to citizens). Yet. Maybe there will never be. But it's pretty much an inevitability that Ring cameras will, at some point, employ facial recognition tech.There's probably no hurry at the moment. The doorbell camera company doesn't seem all that concerned about optics -- not after partnering with 400 law enforcement agencies en route to securing 97% of the doorbell camera market. When not writing press releases and social media posts for cop shops, Ring is waging a low-effort charm offensive with vapid blog posts meant to boost its reputation as a crime-fighting device while burying all the questionable aspects of its efforts -- like encouraging "sharing" of footage with law enforcement so they don't have to go through the hassle of obtaining a warrant.Ring is toughening up a bit in the face of all this bad press. It's engaging directly with critics on Twitter to rebut points they haven't made and answer questions they didn't actually ask. It responded to the ACLU's post that theorized about Amazon's forays into surveillance tech, positing that the company's Rekognition software and Ring doorbell cameras make for a dynamic surveillance duo -- one that faces outwards from millions of private homes around the nation.Ring says it does not use facial recognition tech in its doorbells. It has made this statement multiple times in the past couple of weeks. That's good news. But it's not the end of the story. Nicole Nguyen and Ryan Mac of BuzzFeed are countering Ring's PR push by pointing out that it's a little weird for a company that says it does not use facial recognition tech to employ someone directly tasked with exploring facial recognition opportunities. (via Boing Boing)

There's nothing about American policing that police unions can't make worse. A powerful obstacle standing in the way of accountability and transparency, police unions ensure Americans remain underserved by their public servants.Police unions have defended such things as tossing flashbang grenades into rooms containing infants and the elimination of drug testing for officers. They've repeatedly tried to thwart legislation that would provide more public access to police misconduct records and have often verbally attacked anyone who questions the actions of law enforcement.What they're best at doing is tipping the scale in favor of bad cops. Apparently laboring under the pretense that even a bad cop is a better person than anyone not wearing the blue, unions effectively neutralize oversight by ensuring city and state agencies cannot easily access discipline records. Then they go further, preventing even the police from policing themselves.Justin Price's report on the whitewashing powers of the Phoenix (AZ) PD's union contract is a jaw-dropping read. But it's not an anomaly. There are contracts like this in place all over the nation. But AZ Central's investigation shows just how much has been swept under the rug to "protect" cops from the people they serve.

The past decade or so has seen an explosive upward trend for the cyber insurance industry. Given the rise of malware, particularly of ransomware, it's perhaps not surprising that an insurance market sprouted up around that reality. It's gotten to the point that those of us who's day to day business is managing client networks in the SMB space are now regularly fielding requests for how to obtain cyber insurance.But when you begin to dig into how that industry operates and the methodology by which it advises its clients, it becomes quickly apparent that the cyber insurance industry itself is fueling the growth in ransomware attacks worldwide. ProPublica has a long and fascinating post on the topic, first discussing a real world example concerning a municipality that was hit with ransomware, attempted to resolve this on its own through restoration of backups, but ultimately was advised by its cyber insurance partner to pay the ransom. In doing so, the municipality was out only its $10k deductable, while the insurance company paid out over $400k to the attacker. This was seen as a good deal for the municipality.But was it? It turns out that the IT department for the city was putting together a restoration plan. That plan would take time to implement, require the involvement of outside consultants, and would require overtime work by the IT staff. All of that, of course, would be paid for by the cyber insurance company if the city went down that path. Instead, the ransom was paid.This highlights two troubling trends in the cyber insurance industry. The first trend concerns how insurance companies advise their clients when attacked... and why they advise them in the way they do.

Fortunately, this profoundly-wrong conclusion is buried inside a decision that's merely off-base. If it was the crux of the case, we might have witnessed a rush of copyright trolls to the Eleventh Circuit to take advantage of the panel's wrongness.But this decision is not about IP addresses… not entirely. They do play a part. The Eleventh Circuit Court of Appeals is the latest federal appellate court to deny suppression motions filed over the FBI's use of an invalid warrant to round up suspected child porn consumers. The "Playpen" investigation involved the FBI seizing a dark web child porn site and running it for a few weeks while it sent out malware to anyone who visited the site. The FBI's "Network Investigative Technique" (NIT) sent identifying info back to the FBI, including IP addresses and an assortment of hardware data.As the court notes in its decision [PDF], pretty much every other appeals court has already gotten in on this action. (Spoiler alert: every other appeals court has granted the FBI "good faith" even though the DOJ was actively pursuing a law change that would make the actions it took in this case legal. The violation of jurisdiction limitations by the FBI's NIT was very much not legal when it occurred.)