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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Last week we wrote about France's push to force Google to pay legacy news organizations for the high crime of... sending them traffic. That was somewhat expected, as under the EU Copyright Directive, some version of this will show up in every EU country over the next few months (though France's first approach is particularly dumb). Down in Australia, they're not subject to the EU Copyright Directive, but it's not stopping them from taking the same ridiculous approach:

In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled "chalking" tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens' private property -- their cars -- for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.

Last week, a full page advertisement appeared in the NY Times, that was crowdfunded by nearly 27,000 people (mostly from Taiwan), with the provocative line: "WHO can help? Taiwan." Taiwan's President Tsai Ing-wen posted a picture to her Facebook page:The story behind the ad and the companion TaiwanCanHelp.US website is quite fascinating in its own right, and is reflective of the impressive digitally-aware political movement that has really grown up in Taiwan over the last decade. If you're unaware, over the last five years or so, Taiwan has been perhaps the most interesting experiment to watch in using technology to build more effective participatory government, pushed forward by a bunch of open source/open government activists who realized that working towards real solutions rather than pure partisan rancor, was a good way forward. And that shows in how this new campaign came about.Much of it was designed in response to the WHO's continued efforts to box Taiwan out of the COVID-19 conversation, even as Taiwan seemed to be one of a very small number of countries which appeared to be dealing with the onslaught of COVID-19 quite well (and this was despite its closeness to China, and many people regularly travelling back and forth between Taiwan and China). The WHO's efforts to ignore Taiwan went really viral in late March when a major news program in Hong Kong, RTHK, interviewing Assistant Director-General at WHO Bruce Aylward, showed Aylward's ridiculously awkward attempts to avoid responding to questions about Taiwan:

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Last summer, alt-right "journalist" and no-scare-quotes buffoon Laura Loomer sued Facebook for uninviting her from its platform. According to her lawyer, the equally-buffoonish Larry Klayman, it was defamatory for Facebook to boot Loomer from the platform by designating her a "dangerous individual."According to Loomer, her removal from Facebook entitles her to 5% of Facebook's net worth: roughly about $3 billion at the time of the suit's filing. Loomer sued in Florida but will now have to continue her lawsuit in California, where Facebook is actually located. And Facebook has fired back in its own filing, pointing out that designating users as "dangerous individuals" and performing other moderation activities is not only protected by Section 230 of the CDA, but by the First Amendment as well.Facebook's motion to dismiss [PDF] says that decisions to label people as "dangerous individuals" is an expression of Facebook's opinion of that person and their posts -- something clearly protected by the First Amendment.

You need only look at its treatment of the telecom industry to understand that the Trump administration doesn't give a flying damn about U.S. monopolies (or the impact those monopolies have on consumers, prices, innovation, or the market). Despite being one of the least competitive (and least popular) industries in America, the administration has taken a hatchet to telecom consumer protections, often using bogus data and fraud to do it. Massive, competition and job-eroding mergers are rubber stamped before the administration even sees the data. Any pretense at meaningful oversight is theater.A new report by the American Antitrust Institute suggests that despite the administration's rhetoric around "big tech," its apathy to monopolies is fairly uniform. 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. Antitrust enforcement had already waned under the Obama administration, getting severely worse once Trump came to power:

This week, our first and second place winner on the insightful side is PaulT, on our post about the pro-Trump 12-year-old who was told that people calling him a defender of racism and sexual assault is protected speech. One commenter asserted that this means these terms have lost all meaning and can be lobbed at anyone you don't like, and Paul put that notion to bed:

Five Years AgoThis week in 2015, the White House was floating the idea of crypto backdoors while the Senate Intelligence Committee was finally deciding it should maybe keep a real eye on the Intelligence Community, and we learned that the Baltimore Police Department had asked the creators of The Wire to not include details about their cellphone surveillance tools. The lawsuits against the FCC's net neutrality rules were pouring in from the usual suspects while Republicans were rushing to kill the rules and Verizon was claiming that nobody really wants unlimited data. We also got a look at some emails from MPAA boss Chris Dodd, revealing the organization's real feelings about fair use (it's bad!) as well as its feelings about giving money to politicians involved in writing copyright law (it's good!)Ten Years AgoThis week in 2010, Apple was exercising its control over the iPhone ecosystem, a book publisher was trying vainly to exercise control over people ordering books from abroad, and a Japanese newspaper was hoping to exercising control over whether people can link to its website. The TSA admitted that body scanners could save images, the RIAA insisted that musicians can't make money without them, and telcos still maintained that Google was getting a "free ride". This was also the week that an online publication won a Pulitzer for the first time, and the week that the Library of Congress announced it would begin storing tweets.Fifteen Years AgoThis week in 2005, we took a look at how tricky things were getting in the VoIP space because people were forgetting or ignoring the fact that voice is data. We were pleased to see IBM free up a bunch of patents, but wondered why the New York Times felt that this was so baffling it needed exhaustive explanation. A customer sued Comcast for handing their info over to the RIAA, muni broadband was doing better in some places than people thought, and Google quietly launched its pre-YouTube video offering. Meanwhile, we were shocked-not-shocked to learn things like that people prefer buying cars online and mobile carriers won't make money selling music.

We don't often do book reviews here on Techdirt, but since we've been talking about reading books scanned by the Internet Archive,* this one seemed good to discuss because of how it touches on many of the issues discussed here.Of course, it's not actually a new book. Danny Dunn and the Homework Machine, by Jay Williams & Raymond Abrashkin (with illustrations by Ezra Jack Keats), is part of a series of children's novels I read as a kid. I remember liking the books but have no specific memories of any of them, except for this one, which stuck with me for all these years because of a particular point it made. But more on that in a bit.The protagonist in these stories, Danny Dunn, is an eighth grade boy who, with his widowed mother, lives with Professor Bullfinch, an inventor (the mother is his housekeeper). As this particular book highlights, the professor's inventions include a special new kind of computer, which he keeps in his home laboratory. While today it hardly seems remarkable to have a computer in one's house, let alone one that can do everything that this one can, an important thing to remember is that this book was written in 1958, before computers were anywhere nearly as powerful and ubiquitous as they are today. Part of the magic of reading this book is getting a look at that historical snapshot of what the world was like when everything, that we today take for granted, was brand new.As an author's note explains, the story was written with the input of IBM computer engineers, so presumably its description of how the machine would have worked was not entirely fanciful.

We've seen roughly a zillion trademark disputes and cases in the alcohol industries, but perhaps nothing quite like this. Jack Daniels, the famous liquor company, found itself in a prolonged court battle with VIP Products LLC. At issue? Well, VIP makes a doggy chew toy that is a parody of Jack Daniels' famous whiskey bottle and trade dress. See for yourself.So, while the toy isn't exactly similar to the Jack Daniels bottle, it's a clear homage or parody of it. Parody, of course, has space carved out for it by the First Amendment. While trademark law might lead one to see a problem here, it's the fact that even this commercial product is expressive parody that keeps it from being trademark infringement.The Jack Daniels folks didn't agree. The company issued VIP a cease and desist notice, claiming trademark infringement. In response, VIP sued for declaratory judgement that its product was not infringing by asserting First Amendment protections. Jack Daniels then countersued for trademark infringement. While a district court ruled for Jack Daniels, arguing essentially that VIP's dog toy was not an expressive work because it wasn't a book, movie, or song, the U.S. Court of Appeals for the 9th District vacated that ruling and stated that further proceedings would need to determine if Jack Daniels can demonstrate that it can apply the Rogers test for VIP's chew toy.

As if we needed any further evidence that Clearview is a terrible company. The web-scraping, facial recognition provider has been pitching its unproven tech to an assortment of law enforcement agencies, one-percenters, and questionable governments for a little while now. It shows no sign of slowing down either, no matter how many people (including members of Congress) are now aware of its business practices and cheerful exploitation of billions of images found all over the web.Someone grabbed a few internal Clearview documents and shared them with BuzzFeed earlier this year. Maybe they shouldn't have bothered. Clearview likes harvesting data and images as quickly as possible. But it's apparently less concerned with keeping its scraped stash secure from outsiders. As Zack Whittaker reports for TechCrunch, Clearview's internal files have been accessed by a security researcher, giving us yet another reason to distrust Hoan Ton-That's company.

We've been screaming from the rooftops about the need for more transparency regarding COVID-19, and tragically so many governments are going in the opposite direction. The latest is Iraq, where the nation's media regulator revoked Reuters' "license" for three months while also fining the organization ~$21,000 for daring to claim that the number of confirmed COVID-19 cases was actually higher than the government was reporting. According to the Communications and Media Commission, this violated rules and would "have serious repercussions on societal health and safety."Remember that we've been calling out various places -- including inside the United States -- that are saying that posting "fake news" about COVID-19 should be a criminal offense. This is what happens when you allow that kind of thinking. The arguments made by those who think they're stamping out "disinformation" are identical to those made by Iraq's media regulatory agency to silence accurate reporting.At the very least, it appears that Iraq's President recognizes this is ridiculous and dangerous:

The Supreme Court is being asked to resolve a circuit split on the reach of the Computer Fraud and Abuse Act. The CFAA has done a lot of damage to security researchers and others who violate terms of service agreements. The "others" include everyday Americans who have no idea they might be violating federal law when they do things like give fake information to social media companies or use work computers for personal reasons.The CFAA case SCOTUS is being asked to look at involves something a bit more serious than that. It deals with a police officer who took money to search a license plate database for someone who had no legal access to it. Here's a brief description of what triggered the prosecution from the Eleventh Circuit Appeals Court.

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Last week we wrote about attempts to repair much-needed ventilators for serious coronavirus cases being stymied by manufacturers' refusal to allow hospital technicians to carry out the necessary work. Trammell Hudson, who describes himself as "a programmer, photographer, frequent hacker and occasional watchmaker", has come up with another approach to supplying ventilators to hospitals. It involves taking the inexpensive and widely-used Constant Positive Air Pressure (CPAP) devices typically used for sleep apnea, and turning them into emergency ventilators suitable for COVID-19 patients. These are known as Bi-level Positive Airway Pressure (BiPAP) machines. BiPAP devices are more sophisticated than CPAP ones: they apply higher pressure when the patient tries to breathe in, and lower pressure when they start to breathe out. In investigating the popular Airsense 10 CPAP device manufactured by ResMed, Hudson made a remarkable discovery: