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We recently released our Don't Shoot The Message Board report, which details, with actual numbers, evidence of how Section 230 of the Communications Decency Act has encouraged and enabled a tremendous amount of investment in thousands of internet companies, building up real competition. At the event in Washington, DC, where we announced the paper, one of the questions from the audience focused on whether or not we should remove Section 230 protections from large companies as a way to deal with allegedly anti-competitive actions. The premise, put forth by the questioner, was that Google/Facebook/Amazon have benefited so much from Section 230 that that's why they're now so dominant -- and somehow removing the protections of 230 will somehow create competition.That's a very strange take, and one that doesn't seem supported by the evidence. Again, as our report showed, having CDA 230 created lots of investment in startups and new internet platform companies. Taking away Section 230 would create a massive liability and regulatory burden, which I'm sure the big internet companies wouldn't like, but which they could obviously handle. Smaller companies? Not so much. Removing CDA 230 would only serve to lock in Google, Facebook and Amazon.That's why it's good to see a recent paper from law professor Eric Goldman, making exactly this point: Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope. The paper is a very quick and easy read and I recommend taking a look. Here's just a brief excerpt:

We've noted repeatedly that the repeal of net neutrality did far more than just kill popular net neutrality rules. It effectively neutered the FCC's ability to do its job and oversee lumbering natural telecom monopolies. And, contrary to the claims of the telecom lobby, it threw any remaining authority to an FTC that lacks the resources or authority to do the job either. In short the repeal gave loathed telecom giants like Comcast and AT&T carte blanche to do pretty much anything they'd like to their captive customer bases, provided they're marginally clever about it.Here's one case in point: the previous FCC had passed some fairly basic rules requiring that ISPs be transparent about the kind of connection you're buying. As in, ISPs were required to not only inform you what kind of throttling or restrictions were on your line, but they were supposed to make it clear how many hidden fees you'd pay post sale. With those rules dead, the FCC's process now basically involves you complaining to the Ajit Pai FCC, and the agency doing jack shit about it. Under Pai's model, ISPs are allowed to bullshit you all they'd like in terms of caps, throttling, and other limits, as long as their bullshit is hidden somewhere in their website. And even that's not likely to be enforced:

Our first place winner on the insightful side this week is James Burkhardt who responded to the news of Microsoft's looming ebook shutdown by sharing his approach to dealing with such content:

Five Years AgoThis week in 2014, it was slightly refreshing to see the new NSA boss refrain from Keith Alexander's sky-is-falling hyperbole when talking about the fallout of the Snowden revelations. We continued to learn more about already-published documents — such as the fact that the FBI and CIA were joining the NSA in the use of "backdoor searches" — as well as getting new revelations, such as details on how the FISA Court (which incidentally also this week issued a memorandum letting bulk metadata collection continue, had given the NSA incredibly broad powers to spy on almost any country. The EFF was launching a new lawsuit against the agency too, this time over its procedures for dealing with zero-day vulnerabilities, and over in the other major arena of federal government secrecy, a court ordered the DOJ to release the other secret drone strike memo it had referenced in documents the previous week.Meanwhile, in the wake of Aereo's shutdown, the CEO of CBS was twisting reality to call the ruling "pro-consumer", and we noted how the uncertainty it created may have killed the all-important Cablevision ruling about remote DVRs, but it was impossible to be sure.Ten Years AgoSpeaking of the Cablevision ruling, it was this week in 2009 that the Supreme Court refused to hear the case and left the appeals court ruling in place. We were just beginning to get our heads around the scope of automated copyright settlement letter shakedowns, as well as the ridiculous copyright situation faced by academics who want to share their work. Microsoft, Yahoo and Real were all sued for making a misstep in the music copyright maze, the RIAA scored an easy and expected legal win against Usenet.com while Jammie Thomas officially appealed the constitutionality of the award in her case, and L'Oreal was continuing its crusade to hold eBay responsible for its users' actions. This was also the week that a district court infamously blocked publication of an unofficial sequel to Catcher In The Rye, reminding us that copyright is one area where the government doesn't blink about banning books.Fifteen Years AgoEven all the way back in 2004, it was barely news to discover that lots of big companies routinely share customer data without permission or even disclosure. It was perhaps even less surprising to learn that people were opposed to the RIAA suing downloaders, or that CAN SPAM was still a failure at stopping spam (especially with 20% of Americans admitting they'd bought stuff from spam). Also not especially surprising was the latest failure of broadband-over-power-lines or, sadly, the Senate passing yet another slavishly pro-Hollywood bill easily via voice vote. But, though still not exactly "surprising", it was encouraging and inspiring to see the EFF kick into high-gear with its bad-patent-busting efforts that continue to this day.

One of the major players in cop tech is bowing out of the facial recognition race. As Hayley Tsukayama reports for the EFF, Axon (formerly Taser) has decided there are far too many ethical and practical concerns to move forward with adding facial recognition tech to its popular bodycams.Axon actually has an ethics board -- something that certainly would have been welcome back in its Taser sales days. Perhaps having a few ethical discussions would have prevented dead Americans from being awarded postmortem declarations of "excited delirium," thus keeping law enforcement officers from being held accountable for killing people when they were only supposed to be arresting them.The Axon ethics board has arrived at the following conclusion concerning facial recognition software:

Our past posts on Gibson Guitar, the famed guitar-maker, have revealed roughly a decade of strict IP enforcement and other busuiness challenges. Between waffling on its support for SOPA and its own failures to properly innovate in a direction that met its customers' demand, never mind its odd legal trouble over "illegal" wood used in its guitars and the bankruptcy it underwent a few years back, we're not left with a picture of a well-oiled business. Despite that, emerging from bankruptcy, Gibson has continued its IP maximilist ways, most notably in the past few weeks with a lawsuit against the owner of Dean and Luna Guitars for trademark infringement and counterfeiting over several guitar body designs that the defendants claim aren't protectable.There are two important aspects of that specific dispute to note here. First, the public backlash against Gibson over the lawsuit was firm and swift. Second, this specific dispute originated with cease and desist notices sent out by Gibson's legal team back in 2017. That is particularly notable as it was only in November of 2018 that Gibson brought on a new CEO, James Curleigh. In the wake of the backlash over the past few weeks, Curleigh has gone out of his way to promise the public that Gibson is going to quickly move on from its IP maximilist ways.

Back when Sinclair was trying to acquire Tribune Broadcasting, you might recall the company was accused of some highly unethical behavior in order to get the deal done. Despite the FCC doing its best to neuter most media consolidation protections to help move the deal forward, the union would have still resulted in the merged company violating media ownership limits and dominating local broadcasting in a huge number of new markets.To get around those limits, Sinclair allegedly got, uh, creative. Consumer groups accused Sinclair of trying to offload several of its companies to Sinclair-owned shell companies to pretend the deal would remain under the government's ownership cap. The company also tried something similar in trying to offload some stations to friends and other partner companies at highly discounted rates, allowing it to technically not "own" -- but still control -- those stations. Some of the deals involved offloading stations to relatives and friends, for example:

The Chinese government is no longer content to place its own citizens under pervasive surveillance. There's a new twist to border device searches in certain areas of the country: the installation of software that provides government agents with plenty of data -- including text messages -- from visitors' phones. Joseph Cox of Motherboard has the details.

Senator Lindsey Graham is not exactly the most tech savvy of politicians -- and he demonstrates this is the most predictable of ways: falling for bogus tropes about the internet, while always (always) kowtowing to the surveillance state. He's not sure that bloggers should be protected by the 1st Amendment, and he thinks that the law requires internet platforms to be neutral (it does not). Of course, one thing he likes about the internet is the fact that it allows the intelligence community to sweep up all your data.But his latest is that next week he'll be hosting a hearing with the most ridiculous of moral panic titles around: "Protecting Innocence in a Digital World." There's no more information about what the panel is officially about or who will be speaking, but from the name alone you can assume it's going to be full on moral panics about the evils of the internet and how "something must be done" to "protect the children." Of course, given his earlier comments on why Section 230 of the CDA is no good, there's a decent likelihood that this, too, will be attacked during the hearing -- even though CDA 230 was literally written to enable platforms to create "family friendly" spaces -- and amending it would likely take away those incentives.Similarly, this is coming at the same exact time that his colleague, Senator Josh Hawley, is demanding that companies stop moderating altogether, because he's upset by the myth that internet companies are silencing conservatives (reality: they're just saying they don't want to host trolls and Nazis and sometimes they make mistakes because when you're dealing with that much content mistakes will be made).So I'm a bit confused as to how Senator Graham and the Judiciary Committee expect internet platforms to magically stop "bad stuff" online at the same time that another Senator is demanding that they stop moderating altogether.

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I've been thinking a lot lately about how so many of the "problems" that people bring up with regards to the internet these days -- much of them having to do with disinformation, misinformation, propaganda, etc. -- are really manifestations of the problems of people in general, perhaps magnified by technology. At some point I'll likely write more on this concept, but as such it's difficult to see how blaming the technology solves the underlying problems of humanity. It's treating the symptoms, not the disease. Or, worse, in many cases it seems like an attempt to brush the disease under the rug and hope it disappears (to mix metaphors a bit). Alicia Wanless has written a long an interesting post that makes a similar, though slightly different point.She also notes that blaming technology seems unlikely to solve the underlying issues.

The Ajit Pai FCC has pissed off yet another subset of the population still reliant on factual data.Scientists and researchers at NASA, NOAA, and the American Meteorological Society (AMS) have been warning that the wireless industry's use of select bands for 5G could interfere with transmissions of weather-satellite imagery. In a letter (pdf) sent to the FCC last month, warning that the industry's plan to use 24GHz band could severely hamper weather forecasting. The FCC recently auctioned off spectrum in this band for private companies, but a growing roster of scientists say precautions weren't taken first:

Techdirt's reporting on the EU's disastrous Copyright Directive concentrated on its three worst aspects: Article 13 (upload filters -- now renumbered as Article 17), Article 11 (ancillary copyright for press publications, now Article 15) and Article 3 (text and data mining). But there are some other sections, less well known, which could actually help to improve copyright law in the EU. One of them is Article 14, which concerns "Works of visual art in the public domain":

We've talked a great deal of late about Epic Games' kicking off a PC gaming platform war with Steam through its own Epic Store. What the whole thing comes down to is that the Epic Store offers game publishers a revenue split that takes away half as much revenue from the publisher compared with Steam, coupled with a program for gobbling up 6 to 12 month exclusivity deals on many games that keep them off of Steam during that time period entirely. While Valve responded saying this would hurt gamers, and much of the public appeared to agree, Epic's Tim Sweeney has twice now spoken publicly about his plans, while also stating that what Epic is really after is a better gaming marketplace and to get Steam to increase its own revenue splits, promising to end the exclusivity program if its rival does so.Many of our readers have noticed that I'm somewhat open to Epic's strategy here, although I'm not certainly buying into it fully. Many of those same readers have rightfully pointed out that, whatever Epic's longterm goals, the platform wars still aren't good for the gaming public in the immediate. They're absolutely right about that and one perfect example of how platform wars and exclusivity deals can hurt fans of PC games has shown up in the form of Shenmue 3.Shenmue 3 was launched via a Kickstarter campaign way back in 2015. Like any Kickstarter campaign, there were different tiers by which one could support the product. Many of those tiers included day 1 Steam keys as a reward for supporting the game's creation. Then this happened:

Rupert Murdoch and his Wall Street Journal have frequently attacked Google and other internet services, often in ways that suggest little understanding of how things actually work. Sometimes this has dipped into conspiracy theories and totally bullshit news stories whose sole purpose seems to be to attack Google in a misguided way. So, it's actually nice to see that the WSJ at least agreed to publish the latest Andy Kessler op-ed about the importance of Section 230 of the Communications Decency Act to keeping the open internet. The title, while a bit hyperbolic, is important: Kill Section 230, You Kill the Internet.

Schools are spending more and more money on safety. Or, at least, that's what they're saying they're spending the money on. But simply adding more layers of surveillance -- on campus and off -- isn't really doing much to make schools safer.Preventing violence at schools is a noble goal, but many of the solutions are just repackaged law enforcement products that treat campuses as high-crime areas. The latest developments being pitched to schools aren't innovative. They're just another way to help administrators view students as persons of interest in crimes yet to be determined.This might not be as problematic if the tools worked well. But they simply don't. ProPublica took some repurposed ShotSpotter-esque tech for a spin, only to find out it doesn't work as advertised. The idea is the microphones will pick up aggressive… um… noises and head off the next school shooter. Great in theory. In practice?

The latest in our forever ongoing series, recognizing in the digital age how you often no longer own what you've bought, thanks to DRM and copyright: this week, people with Microsoft ebooks will discover they're dead.

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The terrorists are winning.This shouldn't come as a surprise. The War on Drugs hasn't made a dent in drug distribution. Why should the War on Terror be any different? Two decades and several billion dollars later, what do we have to show for it? Just plenty of enemies foreign and domestic.While politicians rail against "terrorist content," encryption, and the right for people to remain generally unmolested by their governments, they're leaning hard on social media platforms to eradicate this content ASAP.And social media companies are doing all they can. Moderation is hard. It's impossible when you're serving millions of users at once. Nonetheless, the content goes down. Some of it is actual "terrorist content." Some of it is journalism. Some of it is stuff no one would consider terroristic. But it all goes down because time is of the essence and the world is watching.But to what end? As was noted here all the way back in 2017, efforts made to take down "terrorist content" resulted in the removal of evidence of war crimes. Not much has changed since then. This unfortunate side effect was spotted again in 2019. Target all the terrorist content you want, but destroying it destroys evidence that could be used to identify, track, and, ultimately, prosecute terrorists.Sure, there's some concern that unmoderated terrorist content contains the inherent power to radicalize internet randos. It's a valid concern but it might be outweighed by the positives of keeping the content live. To go further, it might be a net gain for society if terrorist content was accessible and easily-shared. This seems counterintuitive, but there's a growing body of research showing terrorists + internet use = thwarted terrorist plots.Call me crazy, but this sounds like a better deal for the world's population than dozens of surveillance agencies slurping up everything that isn't nailed down by statute. This comes from Joe Whittaker at Lawfare, who summarizes research suggesting swift removal of "terrorist content" isn't helping win the War on Terror.

By now we've made it very clear that while fifth generation wireless (5G) is good, it's being painfully over-hyped. Yes, better faster networks with lower latency are always a good thing. And, in time, these networks will power a lot of nifty things. But if you read press coverage of the technology, you'd walk away thinking that 5G is akin to some kind of mystical panacea; something you just sprinkle around on the sidewalk anytime you want innovation and magic to spring forth from between the cracks. It will somehow result in four-day workweeks, we're told. It will revolutionize cancer treatment, companies insist.Wireless carriers facing slumping smartphone sales would certainly like you to think 5G is more revolutionary than it actually is. So would network hardware vendors eager to sell upgraded gear to those wireless carriers. But again, while faster networks are good, they're not magic, and it's the press' job to make it clear 5G is more evolution than revolution.It's a hard lesson to learn, apparently. For example, this Tom's Hardware piece documenting five ways "5G will change your life" is rife with examples that will do nothing of the sort. Like this claim that 5G will somehow revolutionize the classroom:

Boris Johnson -- full name Alexander Boris de Pfeffel Johnson -- was born in New York to English parents, studied at Eton and Oxford, became Mayor of London, and now stands a good chance of becoming the UK's next prime minister. That's not because of any outstanding ability, but largely because he belongs to the country's ruling class and assumes the position is his by right, as do many of his supporters. However, this smooth if completely unearned rise to the top of the UK's political system was threatened recently by an unexpected event. Police were called in the early hours to the London home of Johnson and his partner, Carrie Symonds, after neighbors heard "a loud altercation involving screaming, shouting and banging":

It will surprise nobody to hear that music mega-business Universal Music Group has graced our pages acting aggressive and, at times, downright face-palm-inducing on matters of intellectual property. The whole UMG mantra from the top down appears to be something like: major label music is insanely awesome and the things that make the internet so great are generally terrible. And so, as you might expect, UMG finds itself on Techdirt quite often.Conversely, O-Town, the boy-band that was popular for a minute thanks to the 2000s era MTV show "Making The Band", has apparently never graced our pages. Again, this is as one would expect. But now these two sides find themselves in the same post, all because the latter is attempting a comeback and UMG is being, well, UMG.It all started when, as part of the comeback, O-Town's remaining members applied for a trademark on their own band's name. UMG opposed the application. Why? Well, because UMG owns Motown Records... and just frankly can't help itself, that's why.

If you hadn't noticed by now, Trump's efforts to use tariffs to somehow magically improve the country's standing in the world aren't based on much in the way of sound logic or economic theory. And companies who've been forced to reconfigure and relocate their entire supply chains (to countries like Taiwan) to avoid massive penalties are likely to just pass those costs on to American consumers, something said consumers haven't really fully grokked yet. Countless CEOs think the entire gambit is immeasurably stupid, but have been hesitant to be too pointed in their criticism for fear of upsetting administration regulators.As the actual bill comes due however, consumers are likely to wake up from their slumber. Maybe.Case in point: Microsoft, Sony, and Nintendo this week fired off a letter to the Office of the United States Trade Representative, warning the Trump administration's plan to bump Chinese tariffs from 10 to 25 percent will have a profoundly-negative impact on the game industry. With 96 percent of game consoles made in China last year, the act of reconfiguring their entire supply chains will have a massive impact on the sector's bottom line and the numerous connecting companies that tendril out from the big three gaming giants.The letter itself is abundantly clear that it's not these companies that are going to eat these costs, but the American consumer. In fact, the full letter (pdf) leans heavily on data suggesting that the 25 percent hike on game consoles will result in US consumers paying $840 million more on the game hardware than they might have anyway:

Is it a movement? Or just a couple of outliers that will forever remain on the periphery of the surveillance state? It's too early to say, but at least we can now say San Francisco isn't an anomaly.

We were just talking through yet another instance showing that Nintendo hates its own fans, in this case regarding a story about a cool fan-made web game that was essentially a 2D Mario Bros. battle royale game. In that post, I mentioned that Nintendo's lawyerly ways have become so infamously legendary as this point to be the punchline to every announcement for a fan-game that in any way involves Nintendo properties. The battle royale game is obviously not alone in this. And, given the many other options at its disposal, it remains something of a mystery why Nintendo continues to insist on playing the jerk at every turn.And I'm not the only one wondering, it seems, as Kotaku has picked this theme up and written a decent post asking why Nintendo acts this way as well.

A California community college has discovered open records requests. It's not receiving them, which would be normal. Instead, it's filing them. And in doing so, it's attempting to bypass the state's journalist shield law by pretending the party it's FOIAing is a public entity.In an apparent attempt to regain narrative control of an incident involving the college's administration and the student government, Southwestern College is seeking to obtain the recording of that event by the school's student newspaper. The recording is of a student government election that was abruptly cancelled by the school's president in May, apparently over a bogus Instagram post that suggested one group of students was going to engage in interracial violence.The school was rebuffed when it swung by the newspaper to ask for a copy of this recording. So, it decided to go with plan B: a public records request.As FIRE (Foundation for Individual Rights in Education) reports, the school is attempting to obtain something protected by the state's shield law. The school is aware of this because the student newspaper told it as much when it asked the first time. So, it made an official request and appended a lot of garbage to its request in an attempt to talk the newspaper into believing it was subject to public records requests.

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I've made a similar point a few times in the past, but now that the antitrust knives are out for the big tech companies (mainly Google, Facebook, Amazon and Apple), it does seem worth noting just how quickly the tech landscape seems to change. I moved to Silicon Valley 20 years ago. At that time, the "dominant" companies were: Microsoft, Sun, Oracle, Netscape, IBM, SGI, Intel and Yahoo. Those were still the days of "no one gets fired for buying IBM." Google's headquarters today were once SGI's. Facebook now occupies Sun's headquarters (affectionately nicknamed Sun Quentin, for its resemblance to the prison a bit north of here). A decade or so ago, I remember the general refrain about the startup ecosystem was that there were three "dominant" companies in the marketplace that any startup was trying to sell to. The so-called "GYM" companies: Google, Yahoo, Microsoft. Yet, today, all anyone can talk about is "GAFA" (Google, Amazon, Facebook, Apple) or in some versions "FAANG" (add in Netflix).The tech market is one of disruption. It's a celebrated term around here -- often mocked by outsiders. But dominance has a way of falling. And falling fast. So I appreciate a recent piece by Ryan Bourne at Cato asking some fairly pertinent questions regarding the new antitrust focus on "GAFA."

So we've noted a few times now that the rise of streaming video competitors is indisputably a good thing. Numerous new streaming alternatives have driven competition to an antiquated cable TV sector that has long been plagued by apathy, high rates, and comically-bad customer service. That's long overdue and a positive thing overall, as streaming customer satisfaction scores suggest.But as the sector matures, there's a looming problem it seems oblivious to.Increasingly, companies are pulling their content off central repositories like Hulu and Netflix, and making them exclusive to their own streaming platforms, forcing consumers to subscribe to more and more streaming services if they want to get all the content they're looking for. AT&T, for example, will soon make all of its owned content, like Friends, exclusive to its looming new streaming platform. Disney, similarly, has been pulling its content off of Netflix and Hulu to ensure it's exclusive to its own, looming Disney+ streaming service that arrives next year.This week, Comcast noted that it would soon be pulling The Office from Netflix, making it exclusive to its own streaming service in 2021:

This week, our first place winner on the insightful side is That One Guy who uncovered and expanded on an idea for how to watch the EU's world-without-copyright propaganda film:

Five Years AgoThis week in 2014, the DOJ finally released its memo explaining its justification for extra-judicial drone strikes on American citizens, after a court firmly rejected attempts to bury it — and it was still full of ridiculous redactions and even pointed to a different still-secret memo. Meanwhile, the CIA was getting closer to releasing its torture report, while also being hit with lawsuits over its resistance to FOIA requests.We also saw some good and some bad from the Supreme Court, with a ruling that law enforcement does need a warrant to search mobile phones, but also its infamous ruling against Aereo — which was quickly seized upon by Fox, even as Hollywood's own press was able to see the problems.Ten Years AgoThis week in 2009, the RIAA was defending the huge award in the Jammie Thomas trial while artists like Moby and even one of the musicians whose work Thomas supposedly shared were speaking out against it. The Swedish appeals court found that there was no bias in the Pirate Bay verdict and denied a retrial, while a German politician defected for the Pirate Party in protest of his party's support for an internet blacklist, and the recording industry was suing to force Irish ISPs to implement three-strikes programs (while Spain was rejecting a three-strikes proposal).Fifteen Years AgoMore rapid change was on the horizon this week in 2004 as the web started to replace the library stacks as the best place to do research and folks were warming up to the idea of ditching their landlines for their mobile phones. Jack Valenti was trying to simultaneously deny and defend his infamous anti-VCR stance by rewriting history, Tiffany was suing eBay for not policing counterfeit items, the instant messaging wars were still raging with Yahoo again deciding to block the multi-platform IM app Trillian, SpaceShipOne officially made it to space for the first time (though not quite with the requirements to win the X-Prize), and domain speculators were gearing up for the election by buying all the Presidential candidate domain names they could think of.

We've covered the increasing reliance on tech to replace human judgment in the criminal justice system, and the news just keeps getting worse. The job of sentencing is being turned over to software owned by private contractors, which puts a non-governmental party between defendants and challenges to sentence length.The systems being used haven't been rigorously tested and are as prone to bias as the humans they're replacing. The system used by Washington, DC courts to sentence juvenile defendants hasn't been examined ever, and yet it's still being used to determine how long a person's freedom should be taken away.This system had been in place for 14 years before anyone challenged it. Defense lawyers found nothing that explained the court's confidence in using it to sentence juveniles.

Recently Wired had a pretty amazing cover article on the inside story on the DOJ's legal war against Backpage that is superbly well-written and quite interesting. Wired found the perfect reporter for this in Christine Biederman, who was once a staff reporter at one of the many alt weeklies owned by Michael Lacey and James Larkin -- the two owners of Backpage who are still facing federal charges over the site -- as well as a former assistant US attorney at the DOJ. Biederman understands all of the issues here deeply and does a great job laying them all out. I highly recommend you set aside some time to read the whole article, which gives a great backgrounder on Lacey and Larkin, how they built up an alt-weekly empire, only to see it fizzle, while then building out Backpage as a massive success -- and who now face criminal charges that raise all sorts of legal questions.For this post, however, I did want to focus on some of the legal issues. We've discussed Backpage a lot over the years, including questioning whether what it did was truly illegal. No one denies that the site was absolutely used for some fairly horrible things -- including sex trafficking. The questions, though, surround whether or not that's Backpage's responsibility -- and whether or not in shutting down the site, law enforcement actually shut down a useful tool in tracking down actual traffickers, making the trafficking problem worse. Biederman's piece also shows some of the moral panic around FOSTA, and raises questions about just how big the sex trafficking issue truly is and whether or not the government is abusing the civil asset forfeiture process to make it impossible for Lacey and Larkin to mount a defense. These are all topics that we've long covered on Techdirt.Let's start, though, with the legal attacks on the site, which began not with Backpage, but with a moral panic about the advertising on Craigslist -- which was eventually pressured into shutting down its adult ads section (after FOSTA passed, Craigslist went even further and shut down its entire Personals section). Cook County, Illinois Sheriff Thomas Dart sued Craigslist in 2009, in a case that was tossed out just months later thanks to Section 230 of the CDA (Dart later was one of the most aggressive in going after Backpage). He's quoted in the Wired article making no sense at all:

I've often made the point before that Nintendo hates you, dear Nintendo fan and general gamer. Between taking down fan-made levels, fan-made games, and going to war with all the ROMs everywhere, Nintendo values an overwhelmingly tight grip on its intellectual property rights far more than the natural desire by its own fans to express their fandom. The speed and reliability of Nintendo's lawyerly involvement has become something of a legend on the internet, with folks that make these expressions of fandom often joking upon release that it's only a matter of time before the suits come calling.This held true with Mario Royale, a delightfully simple little web game created by a fan that allowed players to play through Mario Bros. levels alongside up to 74 other simultaneous players. The classic game had never been used for this sort of thing and it was quite interesting to watch how it all worked. It's also worth noting that the game was playable for free, meaning there was no commercial aspect to it. Despite that, you all know what happened next.

Well, here we go again. According to Politico, on Wednesday, at Trump's National Security Council meeting, a proposal was floated that the administration should back legislation that would outlaw encryption. Of course, that's not how it'll be framed should they actually decide to go down this path. Instead, they'll be nonsense about "responsible encryption" and "lawful access." But, make no mistake, what's being proposed is outlawing encryption.

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One of the things about copyright that copyright supporters really hate to discuss is just how problematic the whole idea of getting copyrights on photographs can be. They basically have to twist themselves into all sorts of logical knots just to justify it in the first place. You can't get a copyright on factual information and -- some might argue -- what is a photograph but a capturing of factual information. That photograph is a factual representation of what the lens captured. To date, the way that courts have dealt with this fundamental problem is either (a) to ignore it, or (b) to construct flimsy logical houses of cards arguing that the copyright actually applies to things like the "framing" and (in some cases) lighting choices or decisions positioning of the objects in a photograph of the photographer (if those things were, indeed, done by the photographer). And you can kind of understand the thinking on that when the photographer really does "design" whatever is being photographed. But it gets more questionable when you're talking about "nature" photographs or just general snapshots walking around.Some of this oddity is coming out in a somewhat weird, somewhat amusing case that the Fashion Law Blog has been following over the last few months. Reading through the filings in the case (some of which are embedded below) leads to a bunch of fairly absurd arguments (on both sides), many of which come out of the fundamental troubles with allowing copyright on snapshot photos in the first place. This case involves model Gigi Hadid, who is frequently photographed by the paparazzi. One day last fall, she was approached by a photographer and played along, "posing" for the photographer. The next day she found the photo online, cropped about 50% of the photo (so it was even more focused on her) and posted it to her Instagram feed. In January, an organization called Xclusive-Lee sued her for infringement.There have been all sorts of procedural problems with the lawsuit, and I am expecting it to be tossed on those alone, without touching on most of the other issues that are popping up in the case, so let's start there. First off, as we discussed back in March, the Supreme Court has said that you can't sue until you have a copyright registration (and not just a mere application for that registration). In this case, the copyright in question has only been applied for, not issued. Xclusive-Lee's lawyers insist that because they filed the case before the Supreme Court ruled on that issue it's all fine and dandy, but that's not how the law works. Separately, the complaint doesn't establish that Xclusive-Lee actually holds the copyright on the image (it's not even clear who Xclusive-Lee is). Hadid's filings note that "Xclusive-Lee" did not take the photograph, and that's not even the name on the copyright registration form. And Xclusive-Lee has not provided any proof (such as a copyright assignment) to show that it holds the actual copyright here. That seems kind of like a big deal. Xclusive-Lee's lawyers insist that they don't need to show such evidence up front and can do it later, which seems like a weird response. Why not just show the copyright assignment upfront?Separately, the judge has repeatedly had to scold the lawyers for Xclusive-Lee for not following the rules, which can't bode well:I may not be a lawyer, but I would expect that judges don't very much like it when lawyers repeatedly fail to follow basic instructions.For what it's worth, one of the lawyers for Xclusive-Lee is David Deal who has also been associated with Pixsy in the past. Pixsy is one of those scrape the internet and threaten to sue trolling operations out there.So given all the procedural shenanigans described above, it would not surprise me at all if the case just gets tossed on those grounds. It seems like that would be the easiest (and most likely correct) way the court would go in this situation.However, in Hadid's motion to dismiss, Hadid's lawyers also raise a fair use argument that is, shall we say, a little "out there." To be clear, I do think that there are credible fair use arguments for Hadid's usage here, but I'm not sure that Hadid's lawyers make that credible case. Instead, they suggest a bunch of things that if the court ever gets to a fair use analysis, could raise a lot of issues.However, in dealing with the second fair use factor (the nature of the work), Hadid's lawyers strip away decades of everyone pretending that photographs deserve copyright and point out that it's simply capturing facts.

While many appointments of the Trump administration lack even marginal competence to complete the duties for which they're assigned, the same can't be said of FCC boss Ajit Pai. While Pai's industry-cozy policies may be historically unpopular, the efficiency with which Pai has dismantled telecom consumer protections (and FCC authority in general) can't be denied. Having been a vanilla commissioner for years before being appointed agency head, Pai knows precisely which rules to demolish--and how to obtain the maximum benefit for his core constituents: AT&T, Verizon, Comcast, T-Mobile, Sprint, and Charter Spectrum.Gutting net neutrality, killing efforts to bring competition to the cable box, even weakening the definition of competition to aid industry incumbents are but a taste of what Pai has been up to the last few years. Many of these efforts are subtle enough to fall under the radar, even if the impact of the decisions are profoundly negative. Case in point: last week, the FCC announced that the agency would soon vote on whether to preempt a San Francisco city ordinance designed to promote broadband competition in apartments, condos, and other multi-unit buildings.Article 52, first passed in December of 2016, allows ISPs to use existing building wiring to serve customers, even if it's being used by another ISP. The ruling effectively created an "open access" model inside of San Francisco buildings to help drive a bit more broadband competition. Part of the provision prevents landlords from signing exclusivity deals with incumbent ISPs, something that's been a problem (one the FCC refused to seriously address) for decades (there's a great primer on this here by Susan Crawford).Enter Ajit Pai, whose new proposal would pre-empt San Francisco's ordinance as a favor to industry incumbents who don't like the added competition. And, like so many things Pai does (the "restoring internet freedom" net neutrality repeal comes quickly to mind), his office tried to claim the proposal does the exact opposite of what it actually does:

The NSA may have extremely belatedly decided to give up its bulk phone records collection, but that's only after years of dysfunction, abuse, and escalating uselessness. The problems with the NSA's collection of phone records dates back to at least 2004 -- a 14-year streak of violations that may only now be coming to an end because of the NSA's voluntary sunsetting.For years, the NSA treated the phone records collection as essential to national security. Not much was said about it until Ed Snowden leaked a court order showing the NSA was sweeping up every record possessed by Verizon's business services wing. Then things got heated and the NSA was unable to justify its continued existence.Once the program was modified, the NSA had even more trouble collecting records lawfully. It may have been limited to performing targeted searches, but it was still somehow able to over-collect. Whether this was due to the NSA's filtering of returned search results or errors on the telco side when providing records, the NSA hasn't definitively said. But it did destroy millions of records it never should have had in the first place, strongly suggesting the agency was still collecting in bulk, despite legislative changes.The NSA may be winding the program down, but it's not going out without extending its violation streak, as John Bacon reports for USA Today.

For some time now, we've been discussing gaming company Epic's entry into the gaming platform wars. Epic made waves shortly after the launch of the Epic Store when it began gobbling up exclusivity deals for games, whereas the PC gaming industry has mostly been free from the kind of exclusivity wars that have plagued the console gaming industry. Steam, the enormous competitor in the market, responded to Epic getting some AAA game exclusive deals for the first 6 months after launch by complaining that its new rival's strategy was hurting gamers more than anything else. In response, Epic's Tim Sweeney jumped on Twitter and promised to end the exclusive game strategy if Valve's Steam platform would offer gamemakers the same more generous split on revenue that Epic is offering. See, Steam offers game publishers roughly 70% of game revenue back to the publisher to be on its platform, whereas Epic offers a flat 88%.This initial stance from Sweeney was laid out as altruism, with claims that what Epic was really after was a better gaming marketplace to allow more reinvestment in games, more games for the public, and thereby a happier gaming public. Much of the gaming community met this argument with narrow eyes. Epic, after all, is a business and businesses are designed to make money. Sweeney has since followed up on Epic's stance in a recent tweetstorm responding to public complaints about exclusive games. There's a lot in the 9 tweets from Sweeney, but let's start with the rationale for exclusive games on the Epic Store.

The NY Times is running an "Op-Eds From the Future" series, which is a creative idea. In a recent one, Cory Doctorow matched the theme perfectly by highlighting what world looks like without an open internet, when companies are forced to monitor and filter everything. The point he's making is that, especially with changing laws in the EU and some of the proposals in the US, the liability for hosting content will become too great, and we'll shift from an internet that is open for communmications to one that is a "broacast" world of carefully vetted and fully "licensed" content. His title makes the premise clear: I Shouldn’t Have to Publish This in The New York Times.

Preliminary restraining orders targeting speech are almost always unconstitutional. It's not just the First Amendment getting the shaft when judges do this, but the adversarial court process which is supposed to allow defendants to present a rebuttal before the judge starts handing out remedies.Waiting until the facts are in is a good rule of thumb just about anywhere, but especially in this case where a judge handed out a preliminary injunction after having seen nothing more than a super-vague complaint. The defendant -- accused of libel per se and various forms of secondhand harassment -- now has the ACLU on his side. (via The Volokh Conspiracy)

In 2017, FCC head Ajit Pai came under fire for filling a new "Broadband Deployment Advisory Council" (BDAC) task force with oodles of industry representatives, but few if any consumer representatives or local town or city officials. Not too surprisingly the panel saw a significant amount of controversy, several protest resignations, and the arrest of a one-time panel chair for fraud, but the panel itself never actually accomplished much of anything to address the problem it was created for.This week more data emerged on the details behind the arrest of Pai's former council head Elizabeth Ann Pierce. Pierce, the former CEO of Alaskan telecom provider Quintillion, is headed to jail after a pretty elaborate fraud scheme that bilked numerous investors out of some significant cash. Pierce effectively conned numerous parties out of millions by forging sales contracts, used a significant chunk of the money for "personal expenses," then hid the scope of the fraud from her own colleagues and other Quintillion executives:

In a move that's indicative of the tech companies' newfound willingness to roll over for overseas governments, Facebook will be handing user data to the French government to help it chase down people who've posted illegal words.

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In a move that will surprise absolutely no one, our President once again blindly and incorrectly lashed out at big internet companies and said that they should be sued for what appears to be the illegal action of having employees who didn't vote for him. I mean, that's not what he said, but that seems to be the only real reasoning behind the argument.

We've noted for a long time that the wireless industry is prone to being fairly lax on security and consumer privacy. One example is the recent rabbit hole of a scandal related to the industry's treatment of user location data, which carriers have long sold to a wide array of middlemen without much thought as to how this data could be (and routinely is) abused. Another example is the industry's refusal to address the longstanding flaws in Signaling System 7 (SS7, or Common Channel Signalling System 7 in the US), a series of protocols hackers can exploit to track user location, dodge encryption, and even record private conversations.This week, carriers were once again exposed for not being the shining beacons of security they tend to advertise themselves as. A new report emerged this week showcasing how, for years, hackers have been exploiting substandard security at more than 10 global wireless carriers to obtain massive troves of data on specific targets of interest. Researchers at Boston-based Cybereason, who first discovered the operation, say the hackers exploited a vulnerability on an internet-connected web server to gain a foothold into each cell providers internal network. Once inside, they exploited numerous machines to gain a deeper and deeper access to the cell network:

We warned folks that these big attempts to "regulate" the internet as a way to "punish" Google and Facebook would only help those companies. Last fall, about six months into the GDPR, we noted that there appeared to be one big winner from the law: Google. And now, the Wall Street Journal notes that it's increasingly looking like Facebook and Google have grown thanks to the GDPR, while the competition has been wiped out.

Journalists digging into the numbers behind vague forfeiture reports have uncovered more unsurprising details about the practice. Since the state of Texas doesn't require reporting of anything more than overall profits from forfeitures, reporters at the Texas Tribune did it the hard way. Reading through thousands of pages of court filings, the paper was able to tease out the granular detail law enforcement agencies don't like the public seeing.What the Texas Tribune uncovered is exactly the reasons asset forfeiture is both problematic and incredibly popular with law enforcement agencies. Cop shop PR officers may hold press conferences to announce things like the $1.2 million in cash seized from a traffic stop, they're very quiet about the day-to-day work of forfeiture. The reality is the $50 million a year taken through forfeiture in the state of Texas is composed of hundreds of very small cash seizures.