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Monster Energy. The company's name is enough to set the average Techdirt reader's eyes rolling. The company that makes sugar-heavy energy drinks has become essentially a caricature of an overly aggressive trademark enforcer. This habit is somewhat surprising, given just how often the company loses lawsuits and oppositions, which one would think would be a deterrent for future behavior. Instead, it almost seems as though every loss only spurs Monster Energy on.This continues on to today, when we learn that Monster Energy filed an opposition to a 21-year-old's trademark application for his business, Monarch Energy. You're probably thinking that the opposition is over the name of the young man's company, which would itself be a stretch as trademark infringement. But, no, it's over the kid's proposed logo.

One of the longer-running sagas here on Techdirt concerns the disgraceful situation regarding the flag of Australia's Aboriginal peoples. Mike first wrote about this in 2010, and again in June of this year. The problem is that what is now widely regarded as the flag of Australia's First Nations was designed fairly recently by a private individual, not a group representing those peoples, or some official Australian government body. The designer, Harold Thomas, signed a licensing deal with a clothing company, Wam Clothing, which imposes hefty fees for the use of the design, even on non-profit health organizations giving away items that bear the flag:

Turning security researchers into criminals is so popular we have a tag for it here at Techdirt. A security hole is found or a breach pointed out, and the first thing far too many entities do in response is turn the messenger over to law enforcement while muttering unintelligible things about "hacking."Security researchers are invaluable. They've exposed a ton of security breaches and helped make the web safer for everyone. Their efforts are rarely appreciated by the entity caught with its security pants down. Just because the breachee has chosen to blow off its obligations to its customers and users doesn't make the person who discovered the breach a criminal. Unfortunately, the CFAA lends itself to abuse and the DOJ is more than willing to abuse it -- something that turns security research into a security risk for those who choose to follow this career path.Then there are efforts like this one, which seems completely inexplicable. It's dog-bites-man news when a security researcher is arrested, but every other case we've covered involved nothing more than the use of a computer. This one expands the definition of "penetration testing."

Last summer, Denver police officers decided the First Amendment didn't exist in the city, at least not while they were in the process of helping a naked black man get some medical attention by handcuffing him in the middle of the sidewalk.Denver PD officers Adam Paulsen and James Brooks noticed journalist Susan Greene filming the incident and decided she needed some law enforcement herself. So they approached her and told her to stop filming by citing an inapplicable law. For whatever reason, they also told her to "act like a lady." Greene was handcuffed and placed in a squad car for 12 minutes before a less-stupid cop contacted these officers and told them to release her.The whole incident was captured by officers' body cameras, including the repeated suggestion the journalist wasn't "acting like a lady" by contesting the officers' decision to cuff her and put her in the nearest squad car.Here was the bullshit the cops used to try to shut Greene down:

Hoo boy. We've criticized a bunch of Senator Josh Hawley's nonsense over the past few months. After all, he's the elite cosmopolitan "get big government out of business" Senator who is railing against elite cosmopolitans, while demanding that government get deeply involved in regulating companies. Well, not all companies. Just tech companies. It's almost as if Hawley is deliberately picking on companies that he thinks don't like his insane brand of politics. Anyway, while Hawley has introduced a slew of nonsensical bills targeting internet companies, the most laughable was the one that literally lays out what features certain websites can and cannot use. As we wrote in our post about it, Hawley seems to want to appoint himself the product manager of the internet.Saagar Enjeti, a reporter for The Hill, recently sat down with Hawley, and Enjeti has posted some highlights from the interview. It's kind of scary that this guy is a sitting US Senator, as almost everything he talks about, he demonstrates an astounding, almost comical, level of ignorance or a clearly superficial understanding. But, hilariously, Enjeti actually asks him specifically to respond to my criticism that he's trying to appoint himself the product manager for the internet. Hawley's response is... not good.

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One of the most successful college football programs in history is coached by one of the most insecure men in America, apparently. This combination of success and neediness has resulted in one of the weirdest forms of location tracking in government history. (via Slashdot)

As you've probably heard, Ed Snowden just came out with his memoir, entitled Permanent Record. I haven't yet had a chance to read it, but it looks fascinating. Snowden obviously can't do the usual book tour for this kind of thing, but he has been doing a fresh round of very interesting interviews about his current situation -- including saying that he'd be willing to come home to the US and stand trial if only the US actually allowed a public interest defense for Espionage Act claims. As we've pointed out for years, one of the (many) problems with the Espionage Act is that it literally does not allow a defendant to explain why they leaked certain information, and assumes that it is equally nefarious to sell secrets to foreign enemies as it is to blow the whistle by informing the press of unconstitutional surveillance.Still, the DOJ decided to help boost sales of Snowden's book by suing him for all of the proceeds, over violation of the contract he held with both the CIA and the NSA. The lawsuit is fairly straightforward. Anyone who works in the intelligence community signs a lifetime contract that forbids publishing any manuscript or speech related to their work, without first getting "pre-publication" review.The government takes this very seriously (in fact, too seriously). Indeed, just recently there was another controversy about pre-publication review regarding a memoir and TV show by former CIA officer Amaryllis Fox. And, for reasons like these, it seems that -- purely on a legal basis -- Snowden and his publisher have a high likelihood of losing the lawsuit (in part because the law is against him here, and in part because he's unlikely to be in a position to contest it from Russia -- a point we'll discuss more below).That said, pre-publication review is a hugely sketchy process. Earlier this year, a bunch of former intelligence officials actually sued the government, arguing that the requirement is unconstitutional. That case is still making its way through the courts, with the government pushing for it to be dismissed. However, there are other recent stories about what a bullshit process pre-publication review tends to be. It involves multiple different contracts with unclear definitions and unclear requirements. Recent revelations have also shown that the feds often use the process to purposefully delay books that will reflect poorly on the government, while speeding through ones that support the government's position, or are coming from high-profile former officials.The ACLU, which is defending Snowden (and also involved in the other pre-publication lawsuit mentioned above) quickly put out a statement claiming that the book doesn't reveal any new secrets and didn't need to go through review:

Could Space X finally give the busted US telecom sector a much needed kick in the ass? Since 2017, Musk's Space X has been promising that it would launch 800 low orbit satellites capable of delivering cheaper, lower latency broadband to large swaths of the United States by 2020 or 2021. By and large Musk and company appear to have been successful sticking to that promise, insisting recently that this proposed timeline was "pretty much on target." That said, Musk had to fire some folks to ensure that the project was meeting its goals, which itself suggests they may not have been.More recent government filings indicate that the company may be able to accelerate the deployment of fast low Earth orbit (LEO) satellites across broad swaths of the Southern US. The company says that a number of improvements were discovered in the wake of launching 60 LEO satellites back in May. In a filing (pdf), the company says an adjustment in orbital spacing and other efficiences may bring the service (which will be sold under the "Starlink" brand) online sooner and more broadly than expected:

Earlier this year, we discussed a trademark suit brought against Anheuser-Busch InBev by Patagonia, the famed outer-wear maker known best for its association with skiing and outdoor sports apparel. While we usually make a big deal about market separation when it comes to trademark enforcement, this case was notable for two reasons. First, the trade dress choices made by AB InBev for its "Patagonia" beer were quite similar to Patagonia's trademarks, not to mention that AB hosted popup locations at skiing and biking locations to sell its beer, exactly where Patagonia is so well known. Second, AB is a notorious trademark hound, gobbling up all kinds of marks and then wielding them like a cudgel against small entities. If anyone were going to be sensitive to the trademark rights of others, you would think it would be a company like AB. But not so much.Rather than admitting its error and siding for strong trademark rights, however, AB InBev decided to try to get the lawsuit tossed by claiming that "Patagonia" is not actually well known and therefore should not be afforded federal trademark rights. The court took 20 pages to decide that AB InBev was wrong and that the case would move forward.

Everything old is new again, and the population of tech workers seems to turn over especially fast in the San Francisco Bay Area. I guess I now qualify as an old timer, in that I remember quite clearly when IBM ran a big ad campaign in San Francisco and Chicago to profess its newfound love for Linux. The ad campaign involved stenciling three symbols side-by-side: a peace symbol, a heart, and Tux, the Linux penguin:The message? Peace, Love, Linux. It didn't make much sense then either. Either way, neither city was happy with the streets being all stenciled up. San Francisco fined IBM $100,000 for graffiti, though perhaps the company figured that was cheaper than buying a bunch of billboards in the same area, and it certainly got more press attention. The story was even more fucked up in Chicago, however. There, one of the random dudes IBM's ad company had hired to paint this ad message all over sidewalks was arrested and sentenced to community service for vandalism. Not great.So, apparently no one working at Twitter was around for that experience nearly two decades ago, because the company has just done the same thing. Just a few days ago I was at the Powell Street BART station and saw it was completely coated in giant posters of tweets, but apparently they're stenciled on sidewalks nearby as well (I seemed to have missed those)

"Dynamic pricing" is an idea that sounds efficient and effective in economic theory, but often collapses under the weight of customer anger when put into practice. But while that is true of some of the most egregious approaches, other forms of dynamic pricing are ubiquitous and largely accepted — in part because of how the systems work, and in part because of how they present themselves to customers. This week, we're joined by Perfect Price CEO Alex Shartsis to discuss the many facets of dynamic pricing, and whether it deserves the hate it gets.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.

On Monday, Yahoo News had a bit of a new bombshell in revealing that the closures of various Russian compounds in the US, along with the expulsion of a bunch of Russian diplomats -- which many assumed had to do with alleged election interference -- may have actually been a lot more about the Russians breaching a key FBI encrypted communications system.

Turns out the truth is no defense to accusations of libel… at least not in Austria. And not when someone's reputation needs to be protected from [rereads article] substantially true statements. The standard for defamation in Austria comes nowhere close to what we're used to in the United States. The bar is low for the plaintiff and a bunch of insanity for the defendant who said true things and still got dinged for it. (h/t Techdirt reader Rose Crowell)Here's the background, as detailed by Philip Oltermann for The Guardian:

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The NY Times recently had a piece by Rob Walker noting that there is no tech backlash, despite many people believing there is one. Unfortunately, I think the article overstates its case, and misses the more important, more nuanced point. I do think that the public narrative -- driven by many in the media and many politicians and bureaucrats -- is that there's a giant "techlash" out there as people are fed up with how various tech companies act. I think that Walker's point is correct that the public is still using the big internet companies in larger and larger numbers. But I'm not sure it quite says what he seems to suggest it means.

Well. This is awkward. Congressional oversight of our intelligence agencies is actually being performed by the overseers. The House Intelligence Committee -- or at least Rep. Adam Schiff -- wants to know what's being withheld by the Office of the Director of National Intelligence.Something fucked up has happened and the ODNI doesn't want to talk about it. What "it" is remains unknown, but it's apparently damaging enough the Intelligence Community is blowing off its obligations to its oversight.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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