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As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently someone created a distorted video of House leader Nancy Pelosi. Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps, just for fun). More bluntly, the speech in question – the edited video – was a lie.The question is not whether political speakers lie. They do and always have. Of course, everyone believes their team upholds truth while the other team lies. As Morrisey sang, "Everyone lies, nobody minds." Well, everyone minds the other team’s lies and somehow ignores their own.Political speech comprises lies, truth, and much uncertainty. Who should decide which speech falls into which category? Not the elected officials and unelected bureaucrats we call “the government.” The First Amendment and the courts preclude the government from determining truth (and lies). Elected officials want to be popular and win re-election; speech critical of them works against attaining those goals. Elected officials tend to see such criticism as “lies.” I would if I were an elected official. So would you. The incentives are terrible. Censorship would be a natural response. Hence we have a First Amendment, an unnatural state-of-affairs undergirded in the United States by fifty years of tradition, that is, of judicial doctrine.So who separates truth and lies (and the in-between) in our unnatural state of free speech? Listeners, citizens, and voters. That’s our democratic faith, or our liberal faith, or whatever you want to call it. It’s a real source of national pride, our unnatural state of speaking freely. It’s a foundation of any American nationalism worth honoring.But people do lie, and the lies can have terrible consequences. True enough. But our liberal faith and our unnatural state have an answer to lies: more speech. Consider the Pelosi incident. More speech revealed the lie in the video almost immediately. It is true that humans are lazy or uninterested and ignore the revelations of “more speech.” Or they seek only information that confirms their hatred and prejudices. In other words, listeners, citizens and voters often fail to live up to the demands of our liberal democratic faith. To remedy that failure shall we thus turn to “truth seeking” politicians who are too often thin-skinned and ambitious?With social media we have a third player involved, the companies (above all, Facebook) that own and oversee these platforms for speech. The companies have a right to, and sometimes do, suppress speech on their platforms. The answer to their mistakes in this regard is... more speech. But the companies also rise to the occasion at times by defending our democratic faith in free speech. In the wake of the Pelosi incident, Facebook decided to leave the Pelosi video up on its platform. Monika Bickert, their head of content moderation at Facebook, affirmed that those who heard and saw the video should decide its truth or falsity. The alternative would have been Facebook taking down the video in the name of truth (and against lies). There are many problems with that alternative, not least Facebook would find itself fighting with, or subordinate to powerful politicians like Ms. Pelosi. So the company left the ultimate judgment to citizens and voters. They followed, in short, the American way.But many people apparently do not like leaving judgments about truth to “more speech” and to Americans. Bickert was pilloried. For her part, Ms. Pellosi said Facebook acted as “willing enablers of the Russian interference in [the 2016] election.” To be blunt again, she accused Facebook of treason.But Monika Bickert was the real American here, at least judging by our long tradition of free speech and respect for the intelligence of citizens and voters. That tradition is under fire. Perhaps it always has been. But we might wonder if our political class is abandoning freedom of speech.Many on the right have decided that Carl Schmitt is correct when he wrote “politics is constituted by the distinction between friends and enemies.” The tech firms are perfect “enemies” for the populist right: filled with “woke” young people, located in California, and using technology few understand. The left has been abandoning free speech for a long time because “the corporations started winning” First Amendment cases. They also often judge constitutional rules by their effects on friends and enemies. In the name of that harsh doctrine, both right and left are abandoning the older faith that Americans have the right and the ability to discern truth from lies.But there are still genuine conservatives and real liberals out there who believe in free speech. Last week Facebook paid a hefty price to be their friend.John Samples is a Vice President at the Cato Institute

Just a few weeks ago, Qualcomm and Apple settled a massive patent dispute on the eve of a trial. In the run-up to the settlement, Apple had made a really compelling case that Qualcomm's practices involve blatant abuse of its patents to jack up prices to insane levels and to limit any real competition. Just recently we wrote about how media-tracking giant Nielsen was abusing patents for anticompetitive purposes, but they looked like blatant amateurs compared to Qualcomm. As we noted in that post, our founding fathers worried quite a bit about the impact of patent monopolies and how they would stifle innovation and competition. James Madison said:

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There's another player on the world's anti-encryption stage. Some German government officials apparently feel it's OK for people to have encryption, but not secure encryption. The German government is exploring the idea of asking forcing tech companies to backdoor their encrypted communications platforms, presumably for the greater good of insecure humanity.

By law, the FCC is required once a year to issue a report indicating whether quality broadband is being deployed on a "reasonable and timely basis." If not, the agency is supposed to, you know, actually do something about it. Unsurprisingly, the Pai FCC last year issued a glowing report declaring that everything was going swimmingly, despite some glaring evidence to the contrary. After all, the nation's phone companies have effectively stopped upgrading their DSL lines, leaving cable giants like Comcast with a quietly growing monopoly over faster broadband speeds (no, 5G won't magically fix this).This week, the FCC once again issued a report stating that broadband was being deployed in a reasonable and timely basis. As with the earlier, leaked versions of this report, the FCC has been quick to proclaim that some modest improvement in overall broadband availability was thanks to Pai FCC policies like killing net neutrality:

This week, both our winners on the insightful side come in response to our post about Twitter banning the Krassensteins, despite the ongoing accusations of anti-conservative bias at the platform. In first place, it's Stephen T. Stone responding to an old, tired, incoherent argument that banning people violates "common law":

Five Years AgoThis week in 2014, there was a back-and-forth between Ed Snowden and the NSA, starting with the former explaining in an interview how he tried to raise concerns internally through the "proper channels". James Clapper responded by publishing an email from Snowden that was not about his concerns as counterevidence, but Snowden insisted that was not the only email and, more importantly, explained why that's missing the point anyway.Meanwhile, one former official was excoriating Snowden for making other countries angry, Bruce Schneier was suggesting that the leaks actually help with the cracking of terrorist encryption, the White House itself accidentally revealed the identity of a top CIA spy in Afghanistan and... the House of Representatives happily reauthorized intelligence community funding with no new oversight, whistleblower protections, or anything else.Ten Years AgoThis week in 2009, a Canadian nonprofit released a deceptive report calling for stronger copyright laws that turned out to be largely plagiarized, eventually leading to three reports being recalled. The BSA would have been on their side though I'm sure, since it was also painting a grim picture of Canadian piracy based mostly on hunches. In Sweden, the judge who was to determine whether the original judge in the Pirate Bay trial was biased was himself removed for bias — and this wasn't even the last twist of the week, as Sweden's cultural minister then apparently fell afoul of local laws about commenting on ongoing litigation by saying she supported the original ruling. Meanwhile, the EFF was trying to counter the RIAA's propaganda in schools, the CEO of Sony Pictures was standing by his belief that there's nothing good about the internet at all, and a guy amusingly sued Guinness when it made him the world record holder for most lawsuits filed.Fifteen Years AgoThis week in 2004, the RIAA was adding another sympathetic and apparently innocent target to the list of people it harassed for money with legal threats, while it was also taking a cue from the MPAA and demanding a broadcast flag for digital radio. Clear Channel bought up a patent on selling instant recordings of live shows and started shaking down bands, while record labels were betting it all on ringtones while jacking up the price (great plan). There were, of course, plenty of legal download sites around by now. Over 100 in fact. Some might say too many.We also heard one of the earliest rumblings of an innovation that today seems... well, not exactly mundane, because I personally still find Google Street View to be pretty incredible, but much more common than it did in 2004, when it was hard to envision it as more than a specialty product for certain industries: a company planning to drive around in a camera-laden van and map everything with photos.

Any brief review of the posts we've done here on the craft beer industry's recent heel-turn on all things trademark would give you the impression that there are few good guys any longer and all potential trademark disputes become disputes dialed to eleven in every case. The industry, which has exploded in last twenty years or so, initially developed a tradition for cooperation and congeniality. This was largely to do with the craft industry being heavy on very small startup breweries coupled with the tradition for creative names of brews and artistically inspired label designs. The end result was breweries that quite often swept aside what would be trademark disputes in other industries in favor of camaraderie.That tradition has unfortunately largely disappeared over the past decade. In its place is what's become the steady corporatization of the craft beer industry, which has dragged expensive legal teams into the ranks. Those legal teams too often treat trademark concerns differently than the old guard did, opting for protectionism and aggression rather than cooperation.But the old ways are not entirely gone, as demonstrated by UK and American brewery teams that chose instead to work with rather than against one another.

This is fantastic. Not in the way something amazing and pure is fantastic, but fantastic in the way that only an oft-maligned profession feeding on itself can be. It could be lawyers or debt collectors or Instagram influencers. In this case, it's law enforcement.Someone in the San Francisco Police Department tried to disparage a dead public defender/police critic by leaking a police report on his death. The person apparently on the receiving end -- stringer Bryan Carmody -- shopped it to a few local journalists. The SFPD decided the leak investigation should wend its way through Carmody's house. So, officers raided his place and walked off with $10,000-worth of laptops, phones, tablets, and other electronics.Sidestepping the state's journalist shield law has not worked out well for the SFPD. After some momentary commiseration from San Francisco public officials, the SFPD is now surrounded by critics. And it's not just the normal critics. Even the District Attorney has publicly stated he doesn't see how this search could possibly have legal -- a surprising turn of events considering most prosecutors tend to support the local PD (or stay silent) when the PD fucks things up.The chief of police has also issued an official apology for the actions of the officers he oversees. Chief Bill Scott turned over the leak investigation to an outside department and said the warrant obtained to search the journalist's home lacked "clarity" and was "concerning."This public statement has led to criticism from another surprising source: the local police union. The SF Police Officers Association is unhappy -- not because of the raid itself, which it has no comment on -- but because Chief Scott threw officers under the bus rather than take responsibility for an investigation he was directly overseeing.

It’s hard to know exactly what to say about this decision involving a subpoena seeking to unmask a Reddit user. There are some notably good things about it, and still plenty bad. The bad: that a subpoena seeking to unmask a critic was upheld. The worse: that their First Amendment right to anonymous speech ultimately took a backseat to a copyright claim. On the other hand, there is some good in the decision, too, particularly in the discussion considering the First Amendment implications of upholding the subpoena, which may be helpful for future anonymous speakers. Also, while the subpoena was upheld, it was upheld with conditions that will somewhat minimize, but certainly not eliminate, the chilling effect of its enforcement.In this case a user known as "Darkspilver" had criticized the Jehovah’s Witnesses organization on Reddit. He chose to do it on Reddit in significant part because Reddit allowed him to post his criticisms anonymously. [p. 2] In his critical posts he included two items that the Jehovah’s Witnesses organization claims violate its copyrights: an ad the Jehovah’s Witnesses had run to solicit donations, and a chart he made from data found in one of the organization’s Excel files. The organization then propounded a subpoena to find out the identity of the Reddit user it alleged had infringed its copyrights in posting these things.We’ve written many times before about the concerns raised when discovery demands can cause online speakers to lose the anonymity the First Amendment entitles them. These discovery demands can come in many forms – state civil subpoenas, federal grand jury subpoenas, NSLs, etc. – but while the procedural rules governing how each one may be balanced against the speaker’s First Amendment right to anonymous speech can vary, that First Amendment right does not. All of these instruments should be equally, and adequately, protective of this constitutional interest. But in practice the protection they afford are not. An online speaker whose anonymity might end up protected in the face of certain types of discovery demands might find it trumped by others.In this case the discovery demand came in the form of a Section 512(h) subpoena – the special species of subpoena that the DMCA invented for copyright holders to use to identify users of online platforms whom they allege had infringed their copyrights through their use of those platforms, and without first having filed an infringement lawsuit. This case addressed how courts should decide whether to uphold these subpoenas in the face of the First Amendment interest in protecting the identity of the speaker.Which brings us to the good parts of the decision, where it recognized that there was a significant First Amendment interest in protecting anonymous speech. [p. 7-9] Perhaps most importantly, it recognized that the First Amendment protects anonymous speech even when the speaker is outside of the United States.

As we've discussed plenty of times in the past, when the federal government creates something that could be covered by copyright law, US copyright law requires it to be put into the public domain for the benefit of the public. I've never quite understood why the same is not true for patents. Instead, the US government does big business licensing off patents. While some may argue that this is a good revenue generation scheme for the US government (which theoretically should lower taxes elsewhere), it has significant downstream effects. And that's especially true in the healthcare market.As we've discussed before, you'll often hear big pharma insisting it needs patents because it takes some ungodly sum to research and bring a patent to market. That number goes up every year. By a lot. In the early 2000s, the numbers was clocked at $800 million. Last year, drug companies were now claiming $2.7 billion. But much of that is a total myth. Indeed, research shows that big pharma is often adding up the costs that the federal government itself spends on encouraging new drug development and adds it to the total cost as if that cost is borne by the pharmaceutical industry, rather than the taxpayer.And yet, even though the US taxpayer tends to pay for a significant share of the research and development in new drugs, big pharma companies which take over the project down the road get to keep 100% of the profits -- and, thanks to a totally broken patent system that gives them a literal monopoly, they jack up the prices to insane levels (and this works because of our idiotic healthcare setup in which no one ever knows the cost of what we're buying, and insurance companies act as weird middlemen).I'm reminded of all this in reading a new piece by Dr. Eugene Gu, talking about the absolute insanity of Truvada, an important drug for HIV patients, which is controlled by pharma company Gilead Sciences. Gu outlines a story that reflects exactly what we discussed above. Gilead charges impossibly high fees for Truvada even though most of the development was paid for by US taxpayers:

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The DOJ's current prosecution of Julian Assange threatens the profession of journalism. By turning cultivating sources and publishing classified documents into acts of treason, the DOJ is undermining protections supposedly guaranteed by the First Amendment and shored up by years of case law.But the DOJ has been undermining these protections for years. Six years ago, news surfaced that the DOJ had issued 30 subpoenas for AP journalists' phone records. The fallout from this continues, which includes the DOJ modifying (very slightly) its rules for obtaining journalists' communication records.When it comes to leak investigations, all bets -- and all Constitutional protections -- are off, apparently. The rules have exceptions and justifications to allow the DOJ to do what it wants to do anyway: spy on journalists until it can find the leak source. A new Office of Professional Responsibility report obtained by the Freedom of the Press Foundation FOIA request shows the DOJ convincing itself that threatening press freedoms is a responsible use of its powers.

While the Pai FCC is chomping at the bit to approve T-Mobile and Sprint's competition and job killing megaunion, rumors are that DOJ staffers remain highly skeptical about the purported benefits of the deal. The sticking point remains the same: that the merger would reduce overall competition in the space by 25%, a move that historically almost always results in higher consumer prices, and less effort and innovation overall. Unions and Wall Street analysts also believe the deal will eliminate anywhere between 10,000 and 30,000 jobs as redundant positions are inevitably eliminated, something T-Mobile continues to deny.While Sprint and T-Mobile lobbyists continue to apply as much pressure as they can in a bid for regulatory approval, there's every indication the DOJ remains highly resistant to their charms. For example, Bloomberg reports that one proposed condition being pushed by the DOJ is the mandatory creation of an entirely new fourth competitor in the wake of the deal. In short, T-mobile and Sprint would be forced to divest spectrum and other assets to create a fourth competitor to keep the market semi-healthy:

You might recall during the 2017 UK elections, some attention was paid to the ongoing tradition of quirky, satirical political candidates running for office. But none got more attention than one "Lord Buckethead." There are lots of videos and photos showing Lord Buckethead on stage with Theresa May on election night, but the best summary of the whole situation came from John Oliver:Of course, this was not, in actuality, the first time "Lord Buckethead" had run for office. There was a Lord Buckethead who ran against Margaret Thatcher in 1987. And against John Major in 1992. Those were both done by Mike Lee, who was a video distributor and indie film producer, who thought it might get him some attention for some of his movies. In 2017 comedian Jon Harvey took up the cause.But all of it was actually based on a character from a 1984 science fiction movie called Hyperspace, which was a (pre-Space Balls) Star Wars parody that you've probably never heard of, starring Chris Elliott and Paula Poundstone. Lee released the film in the UK, retitling it "Gremloids" in an attempt to capitalize on Gremlins... a totally different movie that was two years old by that point. Hyperspace/Gremloids was originally written and directed by an American filmmaker, Todd Durham.After the 2017 return of Lord Buckethead, Durham apparently decided to exert his copyright on the character and take all the fun away:

With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn't apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.So far, courts have been hesitant to push back against the government's assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.So, it's good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:

If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)Also, it's a RICO lawsuit.There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.

You've heard the narrative of course: China is supposedly terrible on intellectual property, always copying the US and swiping our secrets. This has been the popular narrative over the last few decades, with politicians and other folks continuously insisting in strong terms about how we need to get China to "respect our intellectual property." Early on we warned folks that this wouldn't end well, and so far we've been exactly right. Unlike many supporters of our patent and copyright systems, China actually recognizes that those systems are mercantilist forms of monopoly protectionism, and if there's a country out there that knows how to leverage such protectionism, it's China. And here's the ridiculous gift that the US has handed China: in demanding that it better "respect" patents and copyright, it gifted China the key to being protectionist in a manner that the US can't really complain about. It's a tremendous self-own by US policymakers, but it keeps happening.We warned about this a decade ago when we pointed out that China was rapidly patenting stuff, and using all those patents to make a giant public display about how it was now "respecting patents." But, in practice, it was using those patents to block American competitors and to even block US companies in other countries. To China, its patent strategy is not about greater innovation, it's about using the monopoly-powers that (inexplicably) Americans are demanding China "respect" as an economic weapon against non-Chinese companies.That's why it's astoundingly short-sighted that the USTR continues to target China in its silly Special 301 report. We've talked about this report for years. It's the report that the USTR comes out with every year, based solely on anecdotes and industry associations whining about this or that country -- and putting them on a "list" that has no practical impact other than that US diplomats are supposed to whine to the governments of those countries. While the list is sometimes used to browbeat smaller countries into changing their local copyright or patent laws, larger companies literally laugh it off. Canada, for years, has publicly explained that it completely rejects the USTR's methodology in the Special 301 report, and thus doesn't consider its findings to be legitimate. And Canada is less of an economic powerhouse than China.All that is prelude to China now going on the attack against the US (one of many attacks, thanks to our President kicking off what he promised would be an "easy" trade war), claiming that the USTR's naming of China on the Special 301 Report is a political attack on China:

The Supreme Court has declared it's cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we've been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they're wrong about can be salvaged by the good faith exception.)In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here's the background, as summarized in the Supreme Court's opinion [PDF]:

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I know that it's fun and easy to attack Facebook these days -- and the company certainly deserves all sorts of criticism. But the criticism should be within the realm of reality. And the latest, from Nancy Pelosi, is not that. As you may have heard, there's all sorts of controversy over the past week or so concerning Facebook's decisions on how to moderate purposefully doctored videos of Pelosi, that are either edited or just slowed down to make it appear (falsely) that she is stumbling over words or slurring them. As we pointed out, there are good arguments from a variety of different perspectives on how Facebook should handle this. Currently, it is limiting the ability for the video to spread algorithmically, and when people try to share it manually, it pops up a warning about how the video has issues and you might want to think twice about sharing it.That said, it wasn't even the video that was making the rounds on Facebook that got all the attention. Instead, Fox News ran a similar video, and that's the one that President Trump himself tweeted. And yet, oddly, everyone seems to be rushing to blame Facebook. The latest to step up to the plate is Nancy Pelosi herself, who is now saying that Facebook choosing not to pull down the video means the company is a "willing enabler" of Russian election interference:

While we think we have a solid grasp on how much companies spend on lobbying and influence peddling, we actually have no idea. Case in point: while a company like Comcast may disclose its overall spending on "lobbying" (as defined as visiting DC to speak to politicians in a bid to shape policy), there's a universe of other influence peddling it's not at all transparent about. For example when AT&T and Comcast wanted the FCC to kill net neutrality rules, both paid a long list of legitimate and sometimes shady groups to express support for the move, even if that support ran in stark contrast of the interest of their constituents.Hand in hand with "astroturf" and other efforts, companies often pay a long list of consultants, academics, think tankers and others to parrot support for what, quite often, is anti-competitive and anti-consumer policy positions. For example, paying an ex-politician to write an op/ed supporting the death of net neutrality isn't strictly "lobbying," but it's influence peddling. Yet such efforts aren't usually included in many companies' financial disclosures. Participation in proxy trade organizations and state-level lobbying often lacks the same transparency as standard "federal lobbying" disclosures.Some Comcast investors have apparently grown tired of this lack of transparency. In a recent letter to the company, an investment group dubbed Friends Fiduciary demanded greater transparency into the company's lobbying practices, arguing that failure to do so is actively harming the company's reputation:

One of the many ugly aspects of the Article 13/17 disaster is the way that politicians not only ignored the concerns of millions of EU citizens, but actively insulted them, describing them as "bots" or Google "astroturfing". As Mike noted at the time, treating people with contempt, shortly before the main elections for the European Parliament, was not a wise move. German politicians were particularly contemptuous of young voters, and the latter did not forget. The mainstream German political parties -- the center-right CDU and CSU, and the center-left SDP -- were trashed in the recent elections, largely because very few young people voted for them. The German Greens, by contrast, had their best results yet.One person who may have helped to bring that about is the YouTuber Rezo. Shortly before the EU vote, he released a 55-minute "personal rant" entitled, "The destruction of the CDU" (in German). In its first week, it had been viewed over 12 million times, and attracted over 180,000 comments. Despite its title, it is not just an anti-CDU polemic, but details the failure of all the mainstream German parties to address key issues -- notably the climate crisis, but also poverty, German support for US militarism, and Article 13. It urged German viewers to vote -- but not for the CDU, CSU, SDP or the extreme right-wing AfD. A few days later, over 90 fellow YouTubers joined Rezo in making the same call in a shorter video (in German).The general view seems to be that the action of these top YouTubers probably caused many more young Germans to think and talk about the issues raised by the elections for the European Parliament, and then to go out and vote, than anything in the country's history. Against a background of general cynicism and lack of political engagement in the EU, you might expect this initiative to be celebrated as an amazing achievement, and something to be emulated in future elections.Nope.Here's what Annegret Kramp-Karrenbauer, leader of the CDU, said about those YouTubers who offered their views on which party people should vote for:

Zenimax, parent company of Bethesda, was in a trademark dispute with book publisher BookBreeze.com on behalf of author Jay Falconer over Zenimax's trademark application for the term "Redfall". I could have sworn I wrote about this when the this dispute started in February, but it appears not. At issue is that Falconer has a sci-fi series of novels with the Redfall title and he is claiming that the public might be confused between his books and whatever game Zenimax is planning to publish with that trademark. Much of the speculation is that it will be for the next Elder Scrolls game.

Twelve years after first broaching the subject, the Texas legislature has finally killed red light cameras. This follows years of fraud, corruption, and contractual language negating prior ban attempts. The Newspaper reports on the good news, which unfortunately comes with some bad news. The supermajority vote means the bill can't be vetoed by the governor, but some cities have managed to grandfather in their resident-screwing cameras.

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.They claim it's to "restore predictability and stability" in our patent system, but that's laughable. It is to massively increase the universe of patent-eligibility to include a wide range of things that almost anyone who understands innovation would consider it insane to allow patents to restrict. It would literally obliterate the three key Supreme Court cases that rejected patents on genes, medical diagnostics, and most software, and open the door to patenting "laws of nature," "abstract ideas" and "natural phenomenon." Really. It specifically says that:

The DHS has made traveling in and out of the US an experience worth sharing. Not so much with your fellow travelers or friends and family back home, but with CBP officers and other DHS employees, who are demanding access to social media accounts under its "extreme vetting" program.While DHS components have stepped up the intrusiveness of their border screenings, they haven't been able to show all these manhours and infringed rights are actually doing anything to keep the country safer. More and more information is being gathered, but it's either of little to no use, or the agencies engaging in these searches can't be bothered to tally up the wins and losses of the border security game.The Brennan Center, however, has compiled a report on the DHS's screening programs and their various enhancements. It isn't just about what has been done by DHS components, but the side effects of these efforts. The Fourth Amendment might be the noticeable victim, but these programs -- especially the social media monitoring -- have adverse effects on other rights as well.

I'll start this post off with a brief story about famed tech reporter Kara Swisher. Many, many years ago, she reached out to me and suggested we meet up for some reason or another (I honestly don't remember why). I went to her house in San Francisco and we walked to a fancy nearby coffee shop where she insisted on telling me exactly what type of coffee I should get.Here's the thing: I don't drink coffee. I can't stand the stuff.However, Swisher is such an incredible force of nature that I felt like I literally had no choice but to order the coffee that she recommended. I ordered it and drank (a bit of) it. And I'm not exactly a shrinking violet when it comes to expressing my own opinions on things.That is to say, Swisher is not just strongly opinionated, she has a way of convincing lots of other people that her opinions should be theirs as well. And that's a really powerful ability, and one that Swisher has wielded well over the past few decades -- especially in calling bullshit on dumb tech ideas and policies. We need someone like Swisher holding tech companies accountable.However, what happens when Swisher's opinion is a bad one? She recently has become so focused on attacking Facebook (in some cases for good reasons) that her thinking on the company is going to cause an awful lot of harm to not just other reporters, but to free speech and the open internet. Last month I was shocked to find Swisher proactively cheering on government censorship in Sri Lanka, after the country blocked Facebook following the terrorist attacks in that country. We pointed out how shortsighted this was, and Trevor Timm from the Freedom of the Press Foundation was even more direct in his criticism, noting how it smacked of Western paternalism, in which "we" can handle free speech, but poor people "over there" somehow can't.

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Well, this is a new twist on prosecutorial misconduct. Why play fair when you can play with Network Investigative Techniques?

Recent privacy conversations have tended to fixate almost exclusively on Facebook and its seemingly-bottomless pit of privacy scandals. But we've noted more than a few times how telecom has somehow been excluded from these conversations, despite behavior that's historically been as bad...or worse. From hoovering up and selling your location data to every Tom, Dick, and Harry on the internet, to trying to charge consumers even more money just to protect their own private data, telecom has a long, thirty-year history just packed with playing fast and loose with your private browsing, location, and other data.And yet while the newswires are routinely now flooded with stories about how we need to break up Facebook, telecom has oddly gotten a pass. Telecom lobbyists just convinced the US government to effectively neuter FCC oversight authority over ISPs, all while these same ISPs call for heavier regulation of Silicon Valley giants they want to compete with in the online video ad space. That this might just be all one connected problem appears to be a concept that has escaped the thinking of far too many purported experts in the antitrust and tech policy worlds.Telecom giants are particularly problematic because they not only own the conduit to the home, they increasingly own the services and content flowing over those connections, providing endless anti-competitive opportunities. As companies like AT&T and Comcast keep making very clear, they not only want to dominate wireless and fixed broadband, they want to be the next Google or Facebook. Fortune recently did a deep dive into AT&T's ambitions, highlighting how the company's data collection and tracking ambitions are every bit as problematic as Facebook:

The CBP has an unlikely partner in its surveillance of journalists, activists, and lawyers: the Mexican government. It's not going to pay for The Wallâ„¢, but it's apparently willing to help out in other ways.

I have avoided writing posts every time Denuvo's DRM, once thought un-crackable, ends up being very, very crackable. At some point, everyone basically agrees that the dragon has been slayed and we all ought to stop poking it with pointy sticks. The most recent story involving Denuvo, however, deserves to be highlighted, if only to recognize that the neutering of this once-vaunted antipiracy tool has reached a stage that requires a different time measurement. Let me explain.As Denuvo's technology unraveled, both the company and its defenders retreated to a position of claiming that even if Denuvo could protect a game for mere weeks, or even days, then it was still worth it. A huge chunk of a game's total sales, goes the theory, occur in the initial release window, so protecting that timeline is vital. As Denuvo began to be cracked more quickly, that useful time for protection went from months to weeks to days. As a result, I began updating you all here with posts detailing the dwindling timeline for major game titles' protected status. It became a useful unit of measurement right up until a game was cracked before its public release.But perhaps we have a new unit of measurement we can start using: the length of time before a game publisher decides to strip out Denuvo itself. We don't appear to have much time to use this new measurement unit, however, as that timeline already appears to be in the category of days.

The raid of stringer Bryan Carmody's home by the SFPD has detonated directly in the face of the department. After someone in the department leaked a police report in an effort to smear a prominent public defender following his unexpected death, an internal investigation was opened to determine which SFPD employee was the source of the leak.This internal investigation quickly went external. Bryan Carmody had shopped copies of the police report to a few news stations, which resulted in the SFPD raiding his home and seizing $10,000 of his equipment, including phones, laptops, and storage devices.After a brief round of "this is all by the book" by a number of SF officials, it soon became apparent this was not at all by the book. In addition to Carmody's First Amendment protections, the stringer was also likely shielded by state law, which forbids searching and seizing journalists' property for the sole purpose of trying to identify a source.The mayor walked back her statement defending the SFPD for its actions. So did a couple of council members. The District Attorney delivered the harshest criticism of the police force, saying he couldn't imagine a situation where this search would have been appropriate.At long last, the department itself is coming around to how much it fucked this whole thing up. A qualified apology has been delivered, as Evan Sernoffsky reports for SF Gate.

Once upon a time, there was something called the Office of Technology Assessment, charged with the critical if unenviable task of educating members of congress about issues related to technology. Since that seems like a pretty good thing to have, recently some people have been pushing to re-establish the office. This week, we're joined by two of those people — Daniel Schuman from Demand Progress and returning guest Zach Graves from the Lincoln Network — for a discussion about bringing back the OTA.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Social media's war on conservatives continues, this time taking out accounts linked to... the so-called #Resistance?

The DOJ spent several years toying with the idea of prosecuting Julian Assange for the publication of leaked documents. It finally pulled the trigger earlier this year, utilizing UK police to pick up the ousted Assange from the Ecuadorian embassy. There was only a single charge related to cracking passwords protecting classified documents. It wasn't much of an indictment, but it initially appeared the DOJ might steer clear of the First Amendment… well, at least as well as it's capable of doing.That all changed last week. The DOJ brought a new indictment, loaded with charges and First Amendment implications. It was no longer limited to some password-cracking attempts that went further than receiving sensitive files from a source. The new indictment basically turns journalism into treason. Things journalists do every day, like cultivating sources, seeking out leakers/whistleblowers, and publishing the results of these efforts are all treated as Espionage Act violations.The charges are so broad, they cover more than the day-to-day business of journalism. If all it takes is asking someone to hand over sensitive documents, it's likely Donald Trump himself violated the Espionage Act while still on the campaign trail when he informally asked Russia to dig up 30,000 emails from then-State Department head Hillary Clinton's servers.This prosecution has the potential to do so much damage to First Amendment press protections, even the DOJ wasn't of a single mind when it came to pushing the new indictment.

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You would be hard pressed to think what the world needs is more copyright lawsuits. As we've discussed for years now, the US is already inundated with copyright lawsuits, many (perhaps most) of them filed by so-called "copyright trolls" who are seeking to shakedown recipients with "settlement" demands. A competent Congress would respond by looking at this abuse of the court system for extortionate purposes and maybe make it less inclined to abuse.But not this Congress.Instead, it has decided to bring back a truly awful idea: a special copyright trolling court, which it likes to say is the equivalent of a "small claims court" for copyright. The latest version of the CASE (Copyright Alternative in Small-Claims Act of 2019) in the House and the Senate was introduced recently, and is getting lots of love from all the usual sources.We should note, that the House bill is sponsored by Rep. Hakeem Jeffries, along with Jerry Nadler. You may recall that those two Congressman were recently seen hosting a giant $5k per ticket fundraiser at the Recording Industry's biggest party of the year, the Grammys. And, right afterwards, they suddenly introduce a bill that will help enable more copyright trolling? Welcome to the world of soft corruption.As we explained last year when this monstrosity was introduced as well, the bill is written in a manner totally disconnected from reality. Supporters insist it is "too difficult" to sue over copyright, yet provide no evidence that this is true. But, more importantly, the entire framing of the bill is based on the idea that those who sue for copyright infringement only do so when they have valid claims. Indeed, anyone paying even the slightest bit of attention to copyright lawsuits over the last decade would know this is laughable.The entire bill is disconnected from reality and would only serve to make copyright trolling become an even bigger problem, and would enable an even more significant level of the copyright shakedown game, in which dubious claims of infringement are tossed around in hopes of extracting settlement fees. At a time when we should be looking to stop such extortionate acts, these bills move in the other direction. It's a joke.

For all of the traditional recording industry's claims of how important copyright is for "supporting artists," the most egregious examples of legacy industry folks screwing artists over tend to involve copyright -- and especially cases involving sampling. The law around sampling is particularly stupid, and has been for decades. Musicians can pay a compulsory license to cover a song, but if you just want to sample a bit, that's a whole different story. And even if you try to do it right... well, copyright will fuck you over. Perhaps the most egregious example is what happened with the Verve's hit song Bittersweet Symphony. Unless you've lived under a rock for the past two decades, you've heard this song. And you may have heard variations on the story of how it used a sample from the Rolling Stones, who were then credited as co-songwriters, giving them a cut of the publishing (which has become a common practice these days when songs are sampled). At least that was the story I initially heard years back. But the full story is truly despicable, and it's back in the news now because, more than two decades later (also, two decades too late), the Rolling Stones have given back the rights. We'll get to that in a second. Because the background here is worth understanding.There are a few different versions of the story floating around -- and not all of the details match. But at the very least, the Verve's Richard Ashcroft wrote the song Bittersweet Symphony, and the recording used a barely noticeable sample of a recording by the Andrew Oldham Orchestra. That recording was an orchestral cover of the Rolling Stones' song The Last Time. Andrew Oldham had been an early manager of the Stones, and the Andrew Oldham Orchestra was a side project (that sometimes involved the Stones themselves). The sample that the Verve wanted for Bittersweet Symphony wasn't even the same as the Rolling Stones song. It was part of the original arrangement for the Oldham Orchestra, apparently done by composer David Whitaker, who is credited in none of this. Also, the opening violin solo that is so iconic and so identified with Bittersweet Symphony is not actually from that sample. It was done by the Verve themselves, designed to flow right into it the part with the sample.Oh, and here's the real kicker: the Rolling Stones totally copied the song "The Last Time" in the first place -- from a 1955 gospel track by the Staple Singers, called This May Be The Last Time, which itself was based on some traditional gospel songs. The Rolling Stones nowadays totally admit they copied the Staple Singers song. Keith Richards said:

A few years ago, the European Union passed some fairly decent net neutrality rules that went notably further than the FCC's 2015 rules we just discarded here in the States. They not only prohibited ISPs from unjustly blocking, throttling, or restricting access to services the ISP may compete with, they imposed some basic protections governing zero rating -- a practice ISPs here in the US have increasingly been using anti-competitively.The problem for the EU is that after the European Union's Body of European Regulators of Electronic Communications (BEREC) crafted the guidelines, it was up to individual countries to interpret and enforce them, something that apparently hasn't been going all that well. According to a new coalition of 45 academics, nonprofits, and private companies, European ISPs are routinely tap dancing around the restrictions. Under the current rules, European ISPs are allowed to inspect and shape traffic using "deep packet inspection" (DPI) tech, but only if it's to optimize the network. They can't utilize DPI to track user activity for money making purposes. But the group says in a letter to European authorities they're doing so anyway in violation of the rules:

This week, both our top winners on the insightful side come in response to a comment on our post about Price Harry using the GDPR to go after a photographer, asserting that it's a good thing because the target was a paparazzi, not a journalist. Stephen T. Stone won first place by asking a simple question:

Five Years AgoThis week in 2014, we watched as the proposed NSA reform bill — the USA Freedom Act — got watered down by the House to the point that every civil liberties organization pulled its support for the law, and it started to look like Reps. Rogers and Ruppersberger had pulled a fast one on us all. The House inevitably passed the now-useless bill (even without the votes of half of its original co-sponsors), so attention had to turn to the Senate and other ways of fighting back against the NSA, like a small victory in freeing the NIST from collaborating with the agency on encryption standards.Ten Years AgoThis week in 2009, various Attorneys General were still on the warpath against Craigslist (even those who had successfully busted criminals on the site) after it gave in to pressure the previous week. While some tried to draw odd conclusions from Craigslist's cooperation, the company was also fighting back and suing for declaratory relief against one AG. And we had to wonder as they did: why Craigslist, not newspapers or other websites?Meanwhile, Perfect 10 was shot down yet again in an attempt to hold search engines liable for image thumbnails, while Joel Tenenbaum's lawyer was gearing up for a likely defeat with plans to defend downloading as fair use. And we read one pro-copyright book that surprised us by relying heavily on... Techdirt comments to make its case about how bad the pirates are.Fifteen Years AgoThis week in 2004, Jack Valenti was feuding with Quentin Tarantino over the latter's failure to condemn movie piracy, Italy was getting ready to put people in jail for file sharing, and California was considering doing the same. Google was making waves on two fronts: then-brand-new Gmail's unprecedented offering of 1GB of storage was spurring the competition to at least pretend to do the same (while a typo on Gmail itself led some people to think they might be getting a terabyte), and the Google IPO was leading absolutely everyone to try to find a way to benefit from the hype (not least the list of underwriters, which was basically all of Wall Street). But, the guy who had been selling fake "pre-IPO shares" to Wall Street insiders was one of two scammers facing jailtime, too.

Tomorrow will represent a full year since the GDPR went into effect. In the run-up to the GDPR, we called out many of the problems with the regulation which, while well-intended, did not seem to deal well with the nature of the internet, speech, or what privacy actually means. In the year since, we've posted numerous stories highlighting the negative consequences of this poorly considered law.Whenever we do that, however, many of the law's defenders insist that these unintended consequences are a small price to pay for either protecting our privacy or reining in the internet giants. So, it does seem worth investigating whether or not the GDPR has done either of those things. And, so far, the evidence is sorely lacking. Indeed, on the question of dominance, we pointed out late last year that the early returns suggested that the GDPR had only made Google more dominant, which hardly seems like a way to punish the company.And now that we have more results, it seems more and more people are realizing that the GDPR has been an utter failure. As CNBC notes in its evaluation of the law, it's hard to see how the GDPR has resulted in any benefits to the public. Instead, it's just created a big mess:

We've had many long discussions here, and have replicated those discussions through more official channels, as to how there are severe problems with the DMCA when it comes to its collision with free speech. One of the core issues is the way the DMCA sets up a system in which service providers feel forced to proactively take down the speech of others based on accusation in the form of a DMCA notice, rather than this working the way it does in nearly every other aspect of American law in which an accusation does not result in a penalty. And penalty truly is the right word, as the American system recognizes that speech is among the most fundamental of freedoms. And, yet, when service providers like Twitter get sent DMCA notices over copyright claims, they are heavily incentivized to take down the content and take action against the account holder -- or face potentially massive liability.Such as the Twitter account for the Houston Rockets, which found itself suspended over a series of DMCA notices for old tweets that apparently contained some unlicensed music. The Rockets also weren't alone.

I thought I had read the worst defense of civil asset forfeiture when I read a former Michigan police chief's argument against a conviction requirement being instituted in his state. Former Police Chief Robert Stevenson's argument was basically this: a conviction requirement makes it too hard for cops to take property from people without proof.

Yesterday, I wrote about the new, superseding indictment of Julian Assange and noted how the theories behind it were absolutely insane and a blatant attack on the 1st Amendment. The Obama administration went after leakers using the Espionage Act, which already was really terrible (the law itself should be deemed unconstitutional, but to use it against whistleblowers, rather than actual espionage was horrific). Here, the Trump administration has taken it up a notch by trying to use it against a publisher. I've seen a lot of people defending this move by arguing that either (a) Julian Assange is a terrible human being, or (b) that Wikileaks is not a "real" or "legitimate" news organization.Neither of those things matter. And if you think they should you are missing the point in an incredibly dangerous way.The activities described in the indictment are things that many journalists do all the time. For example, in the first count, the government calls the following an offense against the United States under the Espionage Act:

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I was tempted to start this post with just a series of head-smashing-into-desk emojis, but I thought that might come off as a bit weird. Remember Craig Wright? He's the somewhat controversial guy who has claimed to have really been Satoshi Nakamoto, the creator of Bitcoin. Suffice it to say, there are a lot of people who do not believe Craig Wright, and have highlighted how Wright has failed to provide any of the fairly straightforward methods the original Satoshi could use to prove who he was, and instead used complicated methods that suggest gamesmanship, rather than actual proof.As we've highlighted in our posts, Wright seems most focused on patenting everything he can with regards to Bitcoin and cryptocurrency -- which, at the very least, seems to go against the open, sharing nature that was a key part of the early cryptocurrency community that Satoshi Nakamoto supported.And now comes the somewhat hilarious report that Wright has tried to register the copyright on the original Bitcoin whitepaper that Satoshi Nakamoto published. This is basically a troll move. Registering the copyright is meaningless. The Copyright Office does not review carefully if you are the actual creator. It's mostly a rubber stamp process -- and it's rarely an issue because in most cases if someone tried to fraudulently register someone else's copyright, that would come out pretty quickly and it would not take long to sort out what's real. But in this case, when you have an anonymous secret author, it gets a little more complicated.As CoinCenter's Jerry Brito notes this is sort of a bug of the system, but he also notes that someone else could also register the copyright and see if Wright would actually sue over it (in which case, he'd have to establish to a court that he actually held the copyright):