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We've talked quite a bit about the importance of clear and transparent government during the COVID-19 pandemic, and how China's (ongoing) refusal to allow for people to speak out almost certainly contributed to the pandemic becoming even worse. And now the same situation has been showing up across the US as well. We've talked about hospitals firing doctors and nurses for speaking out about supply shortages, and now there's news that the US Navy fired the captain of the USS Theodore Roosevelt, Brett Crozier, after he sent his bosses a letter pleading for help as COVID-19 was spreading throughout his crew. Rather than recognize that he was pleading for help, they fired him... because his letter got out to the media and it made them look bad.

Over the last few weeks there's been tremendous attention paid to the prophetic timing of stock sales by two Senators: Richard Burr and Kelly Loeffler. Both of whom were insisting publicly that there was little risk associated with the coronavirus and COVID-19, while receiving important briefings in the Senate and quietly selling stocks in retail and travel companies before the market collapsed and -- in Loeffler's case -- buying up stocks in remote work and hospital protective equipment suppliers. It all looks pretty pretty bad. Loeffler, from day one, has defended the stock sales, saying they were done by a third party and she wasn't aware of them. However, the timing and the choices in stocks are still pretty head-scratching.Loeffler, who is already one of, if not the, richest Senators, has now said that she and her husband (who runs the NY Stock Exchange) will convert all of their individual equity holdings to managed mutual funds. While some are reporting that she's "selling" all her stock, it's not quite that, because she'll just be putting the proceeds into managed funds:

Last month, a bipartisan group of U.S. senators unveiled the much discussed EARN IT Act, which would require tech platforms to comply with recommended best practices designed to combat the spread of child sexual abuse material (CSAM) or no longer avail themselves of Section 230 protections. While these efforts are commendable, the bill would cause significant problems.Most notably, the legislation would create a Commission led by the Attorney General with the authority to draw up a list of recommended best practices. Many have rightly explained that AG Barr will likely use this new authority to prohibit end-to-end encryption as a best practice. However, less discussed is the recklessness standard the bill adopts. This bill would drastically reduce free speech online because it eliminates the traditional moderator’s dilemma and instead creates a new one: either comply with the recommended best practices, or open the legal floodgates.Prior to the passage of the Communications Decency Act in 1996, under common law intermediary liability, platforms could only be held liable if they had knowledge of the infringing content. This meant that if a platform couldn’t survive litigation costs, they could simply choose not to moderate at all. While not always a desirable outcome, this did provide legal certainty for smaller companies and start-ups that they wouldn’t be litigated into bankruptcy. This dilemma was eventually resolved thanks to Section 230 protections, which prevent companies from having to make that choice.However, the EARN IT Act changes that equation in two key ways. First, it amends Section 230 by allowing civil and state criminal suits against companies who do not adhere to the recommended best practices. Second, for the underlying Federal crime (which Section 230 doesn’t affect), the bill would change the scienter requirement from actual knowledge to recklessness. What does this mean in practice? Currently, under existing Federal law, platforms must have actual knowledge of CSAM on their service before any legal requirement goes into effect. So if, for example, a user posts material that could be considered CSAM but the platform is not aware of it, then they can’t be guilty of illegally transporting CSAM. Platforms must remove and report content when it is identified to them, but they are not held liable for any and all content on the website. However, a recklessness standard turns this dynamic on its head.What actions are “reckless” is ultimately up to the jurisdiction, but the model penal code can provide a general idea of what it entails: a person acts recklessly when he or she “consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” But what’s worse, the bill opens the platform’s actions to civil cases. Federal criminal enforcement normally targets the really bad actors, and companies that comply with reporting requirements will generally be immune from liability. However with these changes, if a user posts material that could potentially be considered CSAM, despite no knowledge on the part of the platform, civil litigants could argue that the moderation and detection practices of the companies, or lack thereof, constituted a conscious disregard of the risk that CSAM will be shared by users.When the law introduces ambiguity into liability, companies tend to err on the side of caution. In this case, that means the removal of potentially infringing content to ensure they cannot be brought before a court. For example, in the copyright context, a Digital Millennium Copyright Act safe-harbor exists for internet service providers (ISPs) who “reasonably implement” policies for terminating repeat infringers on their service in “appropriate circumstances.” However, courts have refused to apply that safe-harbor when a company didn’t terminate enough subscribers. This uncertainty about whether a safe-harbor applies will undoubtedly lead ISPs to act on more complaints, ensuring they cannot be liable for the infringement. Is it "reckless" for a company not to investigate postings from an IP address if other postings from that IP address were CSAM? What if the IP address belongs to a public library with hundreds of daily users?This ambiguity will likely force platforms to moderate user content and over-remove legitimate content to ensure they cannot be held liable. Large firms that have the resources to moderate more heavily and that can survive an increase in lawsuits may start to invest the majority of moderation resources into CSAM out of an abundance of caution. As a result, this would leave less resources to target and remove other problematic content such as terrorist recruitment or hate speech. Mid-sized firms may end up over-removing user content that in any way features a child or limit posting to trusted sources, insulating them from potential lawsuits that could cripple the business. And small firms, who likely can’t survive an increase in litigation could ban user content entirely, ensuring nothing on the website hasn’t been posted without vetting. These consequences, and the general burden on the First Amendment, are exactly the type of harms that drove courts to adopt a knowledge standard for online intermediary liability, ensuring that the free flow of information was not unduly limited.Yet, the EARN IT Act ignores this. Instead, the bill assumes that companies will simply adhere to the best practices and therefore retain Section 230 immunity, avoiding these bad outcomes. After all, who wouldn’t want to comply with best practices? Instead, this could force companies to choose between vital privacy protections like end-to-end encryption or litigation. The fact is there are better ways to combat the spread of CSAM online which don’t require platforms to remove key privacy features for user.As it stands now, the EARN IT Act solves the moderator’s dilemma by creating a new one: comply, or else.Jeffrey Westling is a technology and innovation policy fellow at the R Street Institute, a free-market think tank based in Washington, D.C.

Things change. And the stuff that used to work just doesn't anymore. We've covered a lot of this over the years, mainly focusing on how the rise of the internet was greeted with rent-seeking and protectionist policies meant to extend the upper hand that incumbent industries had enjoyed for years.But things are changing elsewhere, outside of industries reliant on intellectual property protection and Congressionally-approved monopolies. Marijuana is being legalized (or at least decriminalized) all over the nation, resulting in an upheaval of sorts in the drug dog industry. According to a few law enforcement officials, drug dogs can't live full lives without sniffing drugs and marijuana legalization is probably just going to result in some mercy killings. A life that doesn't involve being run around a car during an illegally-extended pretextual stop apparently isn't worth living.We are again being asked to shed a tear for a law enforcement-adjacent industry. Social distancing and sheltering-in-place in response to the coronavirus has led to a downturn in driving. And if there's fewer drivers on the road, proxy cops are seeing their revenue streams dry up.

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We've been covering a bunch of nonsense copyright stories lately, as the pandemic has really done quite a job in demonstrating the complete inanity of much of our copyright infrastructure. The latest, as posted by the Twitter account @linernotesdanny, is about how his brother, Dr. David Johnson, tried to livestream a violin recital on Facebook playing Bach's Partita for Violin Solo No. 1 (which is a lovely piece of music), but copyright filters "silenced" it.

So far the broadband industry has done a notably good job keeping their networks running during the COVID-19 quarantine. That said, some ISPs have been monumentally terrible when it comes to protecting the safety of their employees and the communities they serve.Charter Spectrum, for example, spent precious weeks refusing to let non-essential employees work at home, even in cases where positive tests had been discovered at the company's offices. And instead of giving its field technicians the necessary safety gear and hazard pay, Charter execs somehow decided it would be a good idea to give these frightened employees $25 gift certificates to closed restaurants.Other companies like Comcast have handled the problem far better, providing hazard pay and work-at-home opportunities where possible. As has Verizon, which this week took things one step further by quietly ceasing most new broadband installs and repairs. Users who had tech visits scheduled say they've been cancelled as the company reins in operations:

NSO Group has finally decided to engage in the lawsuit Facebook filed against it late last year. The Israeli surveillance tech company has shown itself to be pretty cavalier about its market expansion plans. Despite being located in a country surrounded by unfriendly governments, NSO is more than willing to give Israel's enemies something to use against it. Its client list includes Saudi Arabia, United Arab Emirates, Bahrain, and Kazakhstan.Facebook's lawsuit is questionable and if it wins, it would cause a lot of damage. Facebook is unhappy NSO software uses WhatsApp to deliver malware payloads to targets. But seeking precedent that would criminalize terms of service violations isn't going to help anyone, much less stop NSO from using encrypted messaging apps as attack vectors.NSO is now firing back. And it makes a point that's true, if not all that sympathetic. It is not its customers. Much like the gun dealer who sells the gun eventually used in a mass shooting, NSO's sales of malware to governments that use them in questionable ways isn't really NSO's fault. It may have provided the surveillance tech, but it is not telling governments who to target or participating in the surveillance directly.

One of the most consistent aspects of lawyers who crusade against copyright infringement is just how inconsistent their views on "the law" are. Copyright trolls regularly skirt the law while claiming to fight for justice for copyright holders. Hell, some trolls, that would have you believe they are bullwarks against piracy, have been found out to have essentially committed and encouraged the very piracy they sued over themselves.The point is that it's all a panoply of monied interests and shifting levels of ethics perfectly calibrated to let the copyright lawyer do as he or she pleases on any given day. You can see this in practice yet again, with Kerry Culpepper, Hawaiian IP attorney, deciding to register a bunch of trademarks for piracy related terms and then going around and shutting down accounts for "pirate" services on social media sites.

Not many people noticed this, but last week, the FTC announced that it was sending more than $1 million in "refunds" to people duped by the scam company "World Patent Marketing" that would try to sucker people who thought they had big ideas to pay WPM to either help them patent their "invention" or to "promote" their patented invention. In reality, it turned out (as with many of these companies) it was just a scam to get the company's CEO quite rich:

With increased regulatory pressure surrounding the platform's ability to help distribute disinformation (often to bloody and disastrous effect), Facebook owned Whatsapp this week announced it would be more tightly restricting how app messages can be forwarded. Under the new system, if a user receives a "highly forwarded" message – one which has been forwarded more than five times – that user will only be able to send it on to a single chat at a time. Previously, users could forward these messages on to five people at a time, a limit that was implemented last year.It doesn't block all message forwarding (you can still smash the forward button individually as many times as you like), but it does implement a little "friction" in a bid to slow mass forwarding in general. Over at the Whatsapp blog, the company explains its thinking:

Last week we talked about just how insane it was that hospital administrators were threatening and/or firing doctors and nurses for speaking out publicly on social media about just how unprepared America's healthcare system has been for the COVID-19 pandemic -- and now we find out it gets even worse. Business Insider has seen a memo sent around by the country's largest hospital provider, HCA Healthcare, noting that they changed their social media guidelines just as the pandemic got really cooking, to tell those healthcare professionals on the frontline that telling the truth in public might cost them their jobs:

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Content moderation at scale is impossible to do well. The latest example? Facebook's rules to takedown content deemed to be people trying to price gouge medical supplies like face masks resulted in tutorials on how to make your own face masks being taken down:

Conspiracy theories have always plagued the deployment of new wireless technology. WiFi has no proven impact on human health, yet it has been a bogeyman for the better part of the last fifteen years. Fast forward to 2020, and social media is filled with "internet famous" folks claiming new fifth-generation (5G) wireless is part of a vast mind control conspiracy or a massive threat to human health. Russia, and likely other countries, have incorporated 5G for a few years into its online trolling operations, apparently believing it's another wedge issue that can be used to amplify already heated divisions in western countries.During the coronavirus, the conspiracies surrounding 5G have exploded, with many "famous" Twitter users falsely linking 5G directly to the coronavirus. And in recent months, a lot of these bogus claims have been amplified by the likes of U.S. celebrities, who appear to be getting their health and science information from the "healing with crystals" set. Like Woody Harrelson, who last week vaguely suggested that 5G and the coronavirus are somehow linked. Or M.I.A., who in March doubted a COVID-19 link but falsely told her 650,000 followers 5G could slow down human healing:

Well, it took a pandemic to normalize domestic surveillance by [checks notes] employers. Not sure if this is the dystopia we needed or the one we deserved, but the shelter-in-place policies that have turned lots of office workers into telecommuters has led to incredible growth in one particular market sector.

As we all live through this bad but real life knockoff of a season of The Walking Dead, we've talked about how professional sports leagues are dealing with forced shutdowns. With auto-racing leading the way, several leagues and/or broadcast stations have turned to broadcasting athletes playing video game versions of their sports since they cannot broadcast the real thing. This has been done over varying mediums and to varying degrees of professionalism, but it's quite clear that there is a thirst during what is nearly a national shutdown for something like the live sports the country regularly enjoys.And maybe I've been confined to one space for too long, but NASCAR's version of all of this, broadcast on Fox Sports, is getting genuinely entertaining. Not only as intended, either, but also due to the wild variance with how serious those involved are taking all of this. Let's start with the NASCAR driver who failed to take it as seriously as those around him would have liked.

In the midst of a pandemic, a Navy captain pleaded for the health and safety of his sailors. And for that, he was relieved of duty.A letter to Navy officials, written by Captain Brett Crozier of the USS Theodore Roosevelt, was obtained by the San Francisco Chronicle. Social distancing doesn't work when you're stuck on a ship. Just ask anyone stuck on the handful of luxury cruise liners that became floating attack vectors for the coronavirus.

Earlier this year (though it feels like decades ago...) we wrote about how Mycroft AI was being sued by a patent troll, and how the company's CEO Joshua Montgomery had put up quite a blog post about the scourge of patent trolls, and how Mycroft AI had taken the position -- like a few smart companies before them -- to never settle and never give in to patent trolls. The blog post included this fun paragraph:

It's amazing how two people can look at the same situation and see the exact opposite conclusions. As experts are pointing out that to fight COVID-19 we should be relaxing intellectual property laws to enable more experimentation and collaboration, some have decided what we really need is more locking up of knowledge, and apparently Senator Ben Sasse falls into that ridiculous camp. We joked a few weeks ago about a law professor who's never seen an intellectual property law he didn't want to make worse, saying that pharma companies needed longer patent terms to incentivize the creation of treatments, but we didn't think anyone in power would actually take that nonsense seriously.Senator Sasse, however, took up the ridiculous challenge, and has introduced the Facilitating Innovation to Fight Coronavirus Act. It's a bad, bad, bill that makes no sense at all, but it's separated into two sections that have no business being together in a single bill other than as a ridiculous way to try to convince people who want one provision to support the other. Let's start with the first provision, that actually does make sense. It would take away laws that are blocking some doctors from helping, and also blocking doctors from making use of unproven but potentially valid treatments:

In a win for researchers and the ACLU, a federal court has ruled that violating a site's terms of service is not a criminal violation of the CFAA.The ACLU filed this lawsuit in 2016, representing researchers, scientists, and journalists who were looking into whether employment websites engaged in discriminatory behavior. To do so, the researchers needed to deliberately violate the terms of service of the websites they were studying by creating bogus accounts and providing other false information.Since the CFAA has been the go-to law for companies seeking to silence security researchers and critics, the ACLU and its plaintiffs raised a pre-enforcement challenge, seeking a ruling declaring this work legal before the DOJ had a chance to abuse this terrible law to shut the research down.The DC federal court doesn't go so far as to extend First Amendment protection to these actions, but it does hold, importantly, that the CFAA does not criminalize terms-of-service violations. From the decision [PDF]:

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Lots of famous folks have been making (often amusing) "Stay Home" public service announcements. One great one showed up last week, in which Samuel L. Jackson read a copy of a new "poem" by Adam Mansbach, the author (a decade ago) of the infamous Go the Fuck to Sleep. This time, it was Stay the Fuck at Home. As with the original, Mansbach wrote it, and they got Samuel L. Jackson to read it -- though it debuted on the Jimmy Kimmel show (filmed with everyone at home, of course). You can see it embedded below (hopefully starting at the right part):As you can see, this was in the middle of a much longer clip from the show (an interview of Jackson by Kimmel). Many, many people snipped out just the reading and posted versions of it to Twitter and YouTube. In fact, the first version I spotted was a tweeted version that only had about half of the reading. A bunch of versions showed up on YouTube as well... and, of course, Disney had to step in and shut that shit right down with a copyright takedown (ht to Plainsite, who first spotted this).While there was some confusion as to how Disney held the copyright on this, it's because it was originally aired on Jimmy Kimmel's show which is on ABC, which is owned by Disney. So, pretty straightforward, and you might argue, a legitimate use of copyright. The clip's copyright is held by Disney, and so it's not a bogus takedown.But that doesn't make it smart. After all, the whole damn point of this is to make it be seen by as many people as possible. That's the nature of a Public Service Announcement. And the Kimmel clip buried the reading in the middle, whereas many people making clipped versions of it made it that much easier for people to see it. And, I should remind you, the whole damn reason that the original Go the Fuck to Sleep became popular in the first place was because of "piracy" sharing the original around (oh, and also, the original artwork was done without licensing some of the artwork).But, hey, it's the middle of a pandemic and Disney's going to Disney everything up, I guess.

Fifth generation wireless (5G) is not magic. It's not witchcraft. It's not a "race." It's not going to kill you. And frankly, it's not even all that interesting.We've noted for years now how 5G has been over-hyped by wireless carriers looking to spike lagging smartphone sales, or the gear makers hoping to cash in on global network builds. They've been busily trying to suggest that 5G is almost magic, capable of everything short of curing cancer. In reality 5G is barely available, expensive to adopt, and requires pricey new handsets that aren't worth it because we haven't figured out battery life issues. In time 5G will be a good thing in the way faster, more resilient networks are good, but it's not actually all that transformative.On the flip side of the industry's relentless empty hype is the conspiracy theorists who, despite the overwhelming consensus of scientists, insist that 5G is bad for your health. While it would be hubris to claim we know everything about the way wireless technology impacts human biology, the science we have at the moment makes it clear 5G is not killing you. Theories to the contrary have always bubbled around the internet, but during the pandemic they've somehow gone next level, resulting in folks actually burning down 5G towers in the UK last week:

No one really needs to wait until Friday afternoon to bury bad news. Not these days when bad news is all we seem to have, occasionally mixed with even worse news. But the White House remains the White House, so the time-honored process of dumping stuff you want to stay out of the headlines right before everyone punches out for the weekend remains in place.The government as a whole claims it wants whistleblowers to report wrongdoing through the proper channels. It then routinely follows this up by ensuring the proper channels remain the best way to see good deeds punished.The whistleblower that reported President Trump's inappropriate conversation with Ukraine president Volodymyr Zelensky saw their report buried by the White House's Office of Legal Counsel. So much for the proper channels. President Trump himself asked for the whistleblower to be outed, undermining the protections the federal government has established to ensure wrongdoing is reported.The only party receptive to the whistleblower's complaints has now been fired by President Trump, closing the loop on the White House's retaliatory actions.

As most of you will know, the term "fake news" has been so bastardized at this point so as to be more a moniker of quite literally the opposite of its original intended meaning. Once used to label the sort of nonsense news stories that people would share haphazardly on social media, the term is now almost exclusively used by government strong-men with paper-thin skin and entirely too much power. Still, the term does have a real meaning, if only we made a point of getting back to it.Perhaps in one story, we can illustrate both sides of this. One of the aforementioned leaders that has enjoyed shouting "fake news!" at any media coverage he doesn't like has been Israel's Benjamin Netanyahu. You would think "fake news" would be something Netanyahu really hates. And, yet, Netanyahu also apparently gathered his cabinet members, sat them down, and then solemnly showed them video of Iranian government officials secretly dumping dead bodies in garbage dumps so as to conceal how many COVID-19 deaths the country was enduring.There was just one tiny problem...

Hamilton County (TN) Deputy Daniel Wilkey is in more trouble than possibly any other law enforcement officer has ever been in. Currently facing nine lawsuits over his bizarre and disturbing rights violations, Wilkey is simultaneously facing 44 criminal charges, 25 of which are felonies.Wilkey's rights violations were especially creative. He forced one woman to undergo an involuntary mid-winter baptism in a nearby lake in exchange for some assistance with the drug charges Wilkey was filing against her. In another incident, Wilkey pulled over a car full of minors, forcing the only male occupant to strip to his boxers while he alternated between swearing at the teens and preaching to them.The criminal charges against Wilkey are a hideous blend of mundane and horrifying -- ranging from reckless driving to false imprisonment to stalking to rape. Wilkey could have been taken off the street anytime before this turned into national news, but the Hamilton County Sheriff's Department apparently felt eight internal affairs investigations in ten months was acceptable behavior, rather than a continuous stream of misconduct it should have diverted before it overflowed the office's capacity to control the narrative.But the Sheriff's Office seems determined to protect Wilkey from the consequences of his actions. As Courthouse News reports, a whole lot of camera footage from Wikey's patrol car has suddenly gone missing. The attorney for the woman who was forcibly "baptised" by Wilkey has just discovered months of possibly-damning footage has mysteriously vanished.

Late last week, we wrote a nice story about how the infamous image of the coronavirus that is causing COVID-19 is in the public domain, since it's a work of the US federal government. That's part of the reason why it's everywhere these days:But, as one of our commenters pointed out, that won't stop Getty Images from trying to sell you a license to the image (even complete with the CDC logo on it, which takes real balls by Getty) for an astounding $500.I mean, the text with the image even directly says that it was created at the CDC. You'd think some worker bee at Getty might recognize that this makes it public domain.Getty has a bit of a history of this, and was even sued by a photographer for trying to license images that she had put into the public domain. To be clear, Getty is not violating any law here. Something that's in the public domain is free for use in any manner, meaning that you certainly could try to sell it, though it does seem a bit sleazy and dishonest, especially at a time when news about the coronavirus is so important.What would be problematic, of course, is if Getty actually threatened, sent DMCA takedowns, or sued over anyone using the image. Because that would be bullshit. It's a little unclear exactly how Getty got this image. It's listed as part of the "Smith Collection/Gado." However, it's hard to find out what exactly that means. There is a company called Gado Images, which mixes a bunch of buzzwords about AI with stuff about archiving photographs. I'm not sure I understand what one has to do with the other. It says it's using AI for "digitizing, capturing and sharing the world's visual history." And licensing it, perhaps. But if the images are not Gado's to share, then that raises a whole bunch of other questions.Either way, the whole thing is pretty sleazy, and Getty should either (a) take it down, or (b) admit that it is public domain and make it freely available.

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

WordLogic is a patent troll. The company has been around for a while and holds a bunch of patents (such as US Patent 7,681,124) which it claims covers the concept of predictive text writing. While WordLogic is (was?) a publicly listed company, the stock is currently worth $0.0001 per share. About the only news about the company has to do with hiring patent lawyers and failing to live up to bragging press releases.The company has spent the last few years filing a whole bunch of patent shakedown lawsuits. A quick glance shows 12 federal cases involving the '124 patent, and they don't appear to have gone all that well for WordLogic. I didn't check all of the cases to see how they ended up, but I haven't come across one that they've won yet. Two cases are notable. Unified Patents asked the patent office to review the patent, saying it should never have been granted in the first place. The PTAB (the review board) came out with an initial ruling that the patent was likely invalid, at which point, WordLogic suddenly found religion and "settled" the case before the PTAB could issue a final ruling on the validity of the patent.But that meant that WordLogic could continue to shake down companies with that patent. Indeed, it looks like 9 of the cases over the '124 patent were filed after the review was "settled." In one case, against Fleksy, WordLogic's lawyers were facing Rule 11 sanctions in which Fleksy highlights that nothing it does comes anywhere near what the patent asserts and that WordLogic knew this. Just a snippet:

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Pretty much everyone knew this was coming. Fox News' coverage of the COVID-19 pandemic has been absolutely despicable -- insisting that it was little more than the flu, was overhyped by Trump's political enemies, and nothing anyone should be worried about, before turning on a dime to suddenly pretend they never said any of that earlier, and that suddenly it was always obvious it was serious:

Location data has long proven to be hugely profitable to wireless carriers, given it's used by everyone from city planners to marketing departments. Now it's proving useful to help spread the track of COVID-19, allowing researchers to see not only who an infected person has been in contact with and where they've been, but also helping them predict where hot spots might appear next. Such technology was used during the Ebola outbreak in West Africa to help both track and predict the movement of the disease.Now the government says it's working in partnership with the advertising industry to use such location data here in the States. The Wall Street Journal (paywall, alternative read at The Verge) indicates the Centers for Disease Control and Prevention and state and local governments have already received cell phone data about people in areas of “geographic interest." In this case, to track movements and determine how well people are adhering to "stay at home" restrictions:

Update: The full video is now back up and it's even worse than the original clip we posted. It's unclear if it went back up thanks to YouTube deciding it was fair use, or Pinsky removing the bogus takedown. Either way, watch it here:Copyright system supporters keep insisting to me that copyright is never used for censorship, and yet over and over again we keep seeing examples that prove that wrong. The latest is Dr. Drew Pinsky, the somewhat infamous doctor and media personality, who has been one of the more vocal people in the media playing down the impact of the coronavirus. In a video that had gone viral on Twitter and YouTube, it showed many, many, many clips of Dr. Drew insisting that COVID-19 was similar to the flu, and that it wouldn't be that bad. Assuming it hasn't been taken down due to a bogus copyright claim, you can hopefully see it below:

This week, both of our winning comments on the insightful side come in response to the news that Jared Kushner's coronavirus task force has been using private email accounts for official business. In first place, it's That One Guy breaking down his reaction:

Five Years AgoThis week in 2015, in what was not an April Fool's joke, President Obama signed a silly cybersecurity executive order that amounted to little more than an empty threat, while raising some concerning questions. Meanwhile, in the TV world, analysts were still happily pretending cord-cutting doesn't exist and doing their part for an entire industry in denial (to the point cable companies would throw tantrums when forced to offer a la carte channels). We also took a look at how the TPP could be used to undermine free speech, and a ridiculous ruling in Ireland that required ISPs to kick accused filesharers off the internet.Ten Years AgoThere were a couple of huge rulings this week in 2010. In one, the district court in the Myriad Genetics case ruled that patents on isolated genes are invalid, in a decision that would have a widespread impact. In another unrelated but equally monumental ruling, a court said the Bush administration broke the law with warrantless wiretaps.Meanwhile, a huge wave of automated copyright shakedown lawsuits hit the US, the EU was putting the pressure on Canada to change its IP laws, the Olympic Committee was already hard at work securing its sweeping powers in Vancouver for 2012, and Sony made a lot of people very angry and ruined a lot of cool projects by removing the ability to install other operating systems on the PS3.Fifteen Years AgoFive years earlier in 2005, Sony was on the receiving end of a sudden disruption when a judge ruled that the PlayStation and PlayStation 2 infringed on patents and could not be sold in the US, while over on the Sony Music side, the boss was asking the Supreme Court to step in and stop piracy (the very real chilling effects of the entertainment industry's stance on Grokster weren't getting it done). Librarians and hobbyists were stepping up to oppose the broadcast flag, ISPs were practically begging to be regulated by blocking VoIP usage, and Verizon was blaming the entertainment industry for its decision to cripple Bluetooth on phones.

By now, you've probably seen this image of the coronavirus responsible for COVID-19 a million times:It's freaking everywhere. And it's in the public domain. That's because it was created by employees at the CDC, and as a work of the US government it is exempt from copyright laws, meaning anyone can use it. Which is probably why everyone uses it. One of the many reasons why a public domain is so useful.The NY Times has a nice story about how the image came to be that's well worth reading.

The Houston Police Department's botched drug raid that resulted in the killing of the home's two occupants continues to cause problems for the PD and the city of Houston. The raid was predicated on a phone call from an unbalanced, vengeful neighbor with a history of calling in bogus crime reports. Probable cause was bolstered (if that's even the word) by dirty cop Gerald Goines, who fabricated a confidential informant and provided evidence for drug trafficking allegations by pulling heroin from the console of his cop car.The end result was the execution of Dennis Tuttle and Rhogena Nicholas -- a couple who had been together for 21 years and whose house contained nothing more than personal use amounts of marijuana and cocaine. There was no evidence of the heroin dealing alleged by Goines' nonexistent informant.Goines is now facing murder charges and a handful of other felony charges. The PD's drug task force has been disbanded. And Rhogena Nicholas' mother -- who was at one point falsely named as the person behind the anonymous tip Goines supposedly received -- is suing the city for its failure to properly oversee the police department. (via Courthouse News)The city has so far refused to cooperate with the lawsuit. Nicholas wants to depose city officials about the raid but the city has chosen to continue its stonewalling and obfuscation. The city (and the PD) have done everything they can to avoid giving Nicholas anything to work with, starting immediately after it became clear the raid wasn't justified and had been led by an incredibly dirty cop. Here's the Texas appeals court's description [PDF] of the city's post-raid recalcitrance:

A few weeks back we wrote about how Fortress Investment Group -- a massive patent trolling operation funded by Softbank -- was using old Theranos patents to shake down BioFire, a company that actually makes medical diagnostics tests, including one for COVID-19. Fortress had scooped up the patents as collateral after it issued a loan to Theranos, which Theranos (a complete scam company, whose founders are still facing fraud charges...) could not repay. Fortress then set up a shell company, Labrador Diagnostics, which did not exist until days before it sued BioFire. After it (and the law firm Irell & Manella) got a ton of bad press for suing BioFire over these patents -- including the COVID-19 test -- Fortress rushed out a press release promising that it would issue royalty-free licenses for COVID-19 tests. However, it has still refused to reveal the terms of that offer, nor has it shared the letter it sent to BioFire with that offer.And while some have argued that after issuing this "royalty-free license" offer, the whole thing was now a non-story, that's not true. It appears that the offer only covers half of the test: the pouches that have the test-specific reagents, but not the test device that is used to analyze the tests. And so while the COVID-19 test pouches may get a "free" license, the machines to test them are still subject to this lawsuit.In the meantime, tons of people have been asking how Theranos -- who appeared to never have a working product, despite publicly claiming it did (and convincing Walgreens that it did) -- could possibly have received patents on technology that never actually existed. Tragically, the answer is that our patent system (for reasons that make no sense) does not require a working prototype, which results in all sorts of nonsense getting a patent. That said, the good folks at Unified Patents have launched a crowdsourcing contest for prior art about the two Theranos patents in question.

Most people know about TikTok, from the company Bytedance, but not many know that it is the international version of the similar, but separate, Douyin app. The What's on Weibo site has a good explanation of why the two versions came about, and how they differ:

I'm still amazed that any photographer could think it's wise to hire notoriously bad copyright trolling lawyer Richard Liebowitz. Liebowitz, among many other problems, has been sanctioned for lying to the court, sanctioned for failing to comply with court orders, and even got into trouble for lying to a court about the death of his grandfather (in that one he actually had a friend of his father's write a letter to the court basically saying that the judge should excuse Richard's many lies, because he's just not that experienced). And even if you could look past all that, he's a dreadful copyright lawyer. Going back a few years we quoted a judge telling him "No reasonable lawyer with any familiarity with the law of copyright could have thought..." Just a few months ago, a court made it clear that Liebowitz's reputation comes with baggage:

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Israel's leading malware purveyor is pitching in to help with the pandemic. NSO Group -- which has pitched its spy tools to a number of questionable governments -- is trying to help track the spread of the virus with its proprietary surveillance tool.This would be the third effort by the country to keep tabs on the disease, starting with the Israeli government's authorization of the use of phone/location data to monitor infected individuals. There's also a more voluntary effort, created by the country's Ministry of Health, that allows users to "check in" by providing data about where they've been and whether or not they've tested positive for the disease.But it's NSO's spyware that's the most worrying. Motherboard was able to observe the software in action and Lorenzo Franceschi-Bicchierai reports it's a pretty scary piece of spycraft.

T-Mobile and Sprint finally closed their controversial $26 billion wireless mega merger this week, opening the door to a new era in U.S. wireless with notably less overall competition and, inevitably, higher prices. The government, courts, much of the press, and many "top policy thinkers" of the era happily ignored 40 years of very clear global data showing that such consolidation in telecom reduces competition, raises overall prices, and inevitably results in a steady parade of layoffs. And most of them did so for all the usual reasons: either rigid partisan ideology, or the prioritization of profit above reason, empathy, or common sense.But the deal's approval was also rife with an unprecedented amount of corruption, fraud, and regulatory capture -- even for the U.S.The FCC rubber stamped the deal before it had even seen its own impact analysis data, with Commissioner Brendan Carr meeting with T-Mobile behind closed doors nine times to help the deal gain approval. T-Mobile slathered Trump's businesses with cash and hired Trump ally Corey Lewandowski shortly after Lewandowski mocked a kid with Down Syndrome on TV. DOJ antitrust boss Makan Delrahim, instead of doing his job, personally helped guide the deal's approval process via personal phone and email accounts.Former FCC Commissioners from both parties lobbied for the deal, often without making their financial motives clear in media appearances and a steady parade of editorials. And that's before you get to the comically broken U.S. court system, which tied itself in knots ignoring every last shred of hard data just so the deal could proceed.It's a merger that could only have been approved in the Trump era, given similar competition-eroding deals (AT&T T-Mobile in 2011, and Sprint T-Mobile in 2014) were shot down for good reason: global data, from Canada to Ireland, shows this kind of consolidation is almost always problematic. Less competition means higher prices. Unions and Wall Street analysts alike have estimated this particular deal could result, in time, with anywhere from 10,000 to 30,000 employees being fired as redundant retail and management positions are eliminated. Studies even suggest people at other companies will likely be paid less.And while the DOJ floated a half-cooked deal that will try to create a new replacement fourth carrier out of Dish Network and some twigs, most experts strongly doubt much ever comes from it for a laundry list of reasons. The most obvious being that AT&T, Verizon, and T-Mobile will all be incentivized to make sure, via relentless lobbying, that this new fourth carrier never fully materializes. And barring any election-triggered change, the current FCC, known for being a glorified rubber stamp to industry, isn't likely to engage in the kind of nannying necessary to make sure the deal works, or punish companies that fail to live up to pre-merger promises.As the deal closed this week, media outlets covering the news failed to include any of this as context. CNET, for example, largely repeated T-Mobile's claims with a focus on network performance, with not so much as a peep on how or why such a deal might be problematic for your wallet or T-Mobile employees. Ditto for TechCrunch, which briskly broke down the last year or two of sleazy lobbying as little more than "months of regulatory maneuvering" while giving extra weight to merger conditions that U.S. history makes clear will never actually be enforced:

Performance Rights Organizations (PROs), sometimes known as "Collection Societies," have a long history of demanding licensing for just about every damn thing. That's why there was just some confusion about whether or not those with musical talents would even be allowed to perform from their balconies while in COVID-19 lockdown. And if you thought that it was crazy that anyone would even worry about things like that, it's because you haven't spent years following the crazy demands made by PROs, including demanding a license for a woman in a grocery store singing while stocking the shelves, a public performance license for having the radio on in a horse stable (for the horses), or claiming that your ringtone needs a separate "public performance" license, or saying that hotels that have radios in their rooms should pay a public performance license.Five years ago, we wrote about another such crazy demand -- a PRO in Sweden demanding that rental car companies pay a performance license because their cars had radios, and since "the public" could rent their cards and listen to the radio, that constituted "a communication to the public" that required a separate license. The case has bounced around the courts, and finally up to the Court of Justice for the EU which has now, finally, ruled that merely renting cars does not constitute "communication to the public."From the CJEU's press release:

As the world navigates the reality of the COVID-19 worldwide pandemic, we've already noted several ways that the outbreak has changed our daily lives. Me being me, I noticed just how many professional sports organizations were moving into broadcast versions of their eSports as a way to fill the void. That of course isn't the only way video game life has changed.Another appears to be the odd case of Final Fantasy 14, an online MMORPG. The game has had a vibrant, if congested, real estate economy involving the buying of virtual homes and properties. Due to the outbreak, the game recently announced that, similar to real life in many cities, evictions were on a pause.

It's always fun to read a good benchslap of cops who've tried to turn nothing at all into "probable cause." It doesn't happen very often because courts are far too obliging far too often. The standard law enforcement officers are held to -- objective reasonableness -- rarely seems reasonable, no matter how objectively you approach it.This ruling [PDF] by a Florida federal court does not coddle the officer who made a mockery of both objective reasonableness and probable cause. You can tell this is headed into unconstitutional territory during the recounting of the events that led to the arrest of Jorge Sanchez. (via FourthAmendment.com)Local officers were working with the DEA on a drug trafficking investigation. They decided to pull over someone heading away from the house they were surveilling. But the officers had nothing approaching probable cause. All they had was someone driving away from a house they suspected might be tied to drug sales. But that wasn't going to stop them from stopping Sanchez. So, they did what they had to do.

It's worth repeating for the folks in the back: the FCC's hugely unpopular, facts-optional and fraud-slathered repeal of net neutrality did a lot more than just kill "net neutrality." It gutted the FCC's already dwindling authority over giant telecom monopolies, shoveling any remaining authority to an FTC that lacks the authority or resources to police the US telecom sector (the whole goal of telecom lobbyists). As a result, you've now got ISPs free to engage in problematic behavior (like bullshit fees, or charging people "rental fees" for modems they already own) that the government is incapable and unwilling to address.And the government's decision to ignore the public and pander to the telecom lobby has deeper ramifications as well. As telecom lawyer and former FCC staffer Gigi Sohn writes in an editorial at The Verge, there has been a multi-decade effort to kill telecom oversight under the (clearly false) claim that the miracle of the free market will somehow magically fix a sector that's been clearly broken for decades:

As we noted just a few weeks ago, two Senators -- Kelly Loeffler from Georgia and Richard Burr from North Carolina, both of whom were publicly trying to play down the risks associated with COVID-19 -- were quietly engaging in stock trades that suggested they had a different viewpoint (while five different Senators sold stock during this period, only Loeffler's and Burr's look particularly suspicious). Burr's stock sell-off was revealed first, and got the most attention, in part because he's also the Chair of the Senate Intelligence Committee and was getting classified briefings about COVID-19. The latest news on that front is that the Justice Department has supposedly opened an investigation:

The FBI's inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ's Inspector General. During the FBI's surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page's communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.Current and former DOJ/FBI officials made it clear the FBI's questionable actions in this case were only the agency's most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.The Inspector General's findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI's FISA work. And the office is finding even more to be concerned about.