Techdirt

The constitutional challenge to FOSTA chugs on. A few weeks ago the DOJ filed its opposition brief to defend FOSTA, and then last week several amicus briefs were filed intending to support the government's side. But in reading the one filed by twenty-one state attorneys general, it seems that's not what it did.The important thing to remember about this appeal is that the question before the appeals court isn't really about the constitutionality of FOSTA itself. What's being appealed is the case having been dismissed for lack of standing by the plaintiffs. The district court never directly ruled on the constitutionality of the law; it only ruled that these plaintiffs had no right to complain about it to the courts. According to the district court these plaintiffs weren't being hurt, or likely to be hurt, by FOSTA, and so it dismissed their case. What the parties are fighting about now is whether this assessment by the district court was right.For the plaintiffs it makes sense to keep pressing the constitutional issue because shining a light on the unconstitutionality of the law illuminates the injury the unconstitutionality has already caused and will continue to cause. But the defense has a different and much simpler job. All the DOJ has to do to defend FOSTA is say is, "The district court was right. These people were not hurt by FOSTA and will not be hurt by FOSTA, so keep this case dismissed." If the appeals court agrees that there has been no injury, and that there is unlikely to be any injury, then the case remains dismissed and this constitutional challenge goes away.And so that's what the DOJ's brief basically does: parrot the district court's decision that there is nothing to see here. The DOJ spent its pages arguing that there has been no injury, nor is there the likelihood of any injury, because FOSTA could not possibly empower prosecutors to reach the plaintiffs.

Any review of the recent posts we've done on gaming giant Nintendo would certainly reveal a disappointing trend. That trend appears to be the company, which has always maintained an aggressively tight grip on its IP, upping its efforts to take down all kinds of ROM sites, fan-made games, and gaming leaks. Gamers here may also already be aware that there is something of an odd fascination in gaming communities with the Commodore 64, an 8-bit gaming computer created way back in 1982 and discontinued in the early 90s. There are thriving modding and porting communities dedicated to figuring out how to get the C64 to do things it was never intended to do.Which perhaps makes it surprising that it was only in the last week or so that someone figured out how to get a working C64 to be able to play a port of the original Super Mario Bros. The whole enterprise appears to have nothing to do with wanting to play an illicit copy of the 80s game and everything instead to do with a community of enthusiasts simply tinkering and seeing what could be pulled off for fun. Getting Mario on a Commodore apparently took something like seven years and was hailed as an achievement by the Commodore community. Reactions such as the below are indicative of the responses.

Back during an earlier round of the never-ending legal dispute between Oracle and Google concerning whether or not APIs can be covered by copyright the Supreme Court requested that the White House weigh in on its opinion -- leading then Solicitor General Donald Verrilli (formerly a top lawyer for the MPAA) to weigh in with what we argued was a painfully clueless brief. The underlying issue here, from the very beginning, revolves almost entirely around the simple point: do you actually understand what an API is? If you do -- and recognize that it's fundamentally different from executing software code -- then this is an easy case. An API is simply an instruction set -- a recipe of sorts -- for being able to interface with a particular program. And US copyright law is clear that copyright cannot apply to any "idea, procedure, process, system, method of operation, concept, principle, or discovery."An API is easily covered by that designation, but because you have non-technical lawyers who can't understand the difference between software operating code (which is copyrightable) and an API (which is not) they argue that the two are virtually identical, and thus APIs should be covered by copyright. Tragically, that argument worked at the appeals court (it didn't work at the district court, where Judge Alsup already had some coding history and famously taught himself how to program in Java to better understand the facts of the case).Now that the case is back on appeal to the Supreme Court, looking specifically at questions of fair use around the reuse of an API, the Supreme Court has (somewhat oddly) asked the White House to weigh in again. As part of its Monday orders it invited the White House to give its opinion on whether or not it should even hear the case (not yet on the actual merits of either side's case):

Because there's no shortage of people willing to believe someone else's millions can be theirs with minimal effort, another semi-celebrity has hopped aboard law firm Pierce Bainbridge's Fortnite-suing money train. Destination unknown.The law firm has helped everyone from former sitcom star Alfonso Ribeiro to a sentient meme known as "Backpack Kid" throw money into a federal court holes over the past several months. Thanks to a recent ruling by the Supreme Court, most of its copyright infringement lawsuits are on hold because the plaintiffs have yet to actually have protection granted for their dance moves by the US Copyright Office.It's not like this is just a matter of waiting out the Office. The Copyright Office has made it clear it will only extend copyright protection to dance moves showing sufficient creativity. It's not likely to find most of the dance moves being sued over worth protecting as most of them consist of only a "few movements or steps with minor linear or spatial variations." One of the first litigants to jump into the Sue Fortnite pool -- Alfonso Ribeiro -- has already been rejected by the federal government.Unfortunately, the lawsuits continue, as Nick Statt reports for The Verge.

We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.

In 2015, following a tragic shooting in San Bernardino, California, Congress faced a difficult issue. The Federal Bureau of Investigations (FBI) was in possession of a locked iPhone that belonged to one of the shooters, and it wanted to gain access to that phone as part of its investigation. Members of Congress found themselves in the middle of a contentious debate over whether Apple should be required to unlock the phone to give the FBI access to its contents. During this pivotal time, Congress did not have an unbiased source of information to turn to for an explanation of the technical feasibility and societal implications of requiring Apple to enable the FBI to bypass those protections. In the absence of such a source, we were forced to rely solely on the input of the FBI and of Apple—two players who had strong, conflicting interests at play in the debate.But that wasn’t always the case. For more than twenty years we had the Office of Technology Assessment (OTA), an independent, bipartisan agency set up to provide unbiased information on technology and its potential impacts. However, in 1995 the agency was defunded, stripping Congress of the ability to access unbiased tech advisors as we entered the digital age. Today, as Americans are feeling the effects of emerging technologies—including issues around data privacy and artificial intelligence—we are experiencing the repercussions of the decision to defund this vital piece of the Congressional support system.Although some have suggested that the Government Accountability Office (GAO)’s new Science, Technology Assessment, and Analytics (STAA) team should fulfill the role of the OTA, or that the combination of GAO and the Congressional Research Service (CRS) can meet Congress’ technology expertise needs, relying solely on GAO and CRS for all of our technology assessment needs is a short-sighted solution. Despite the potential of GAO’s new STAA team and the fine tradition of CRS, neither of these two organizations—independently or combined—fill the void left by the shuttering of the OTA. In the ecosystem of Congressional support agencies CRS summarizes; GAO evaluates; and the OTA anticipates.During the encryption debate following the San Bernardino shooting, CRS generated a report outlining the debate and summarizing existing knowledge and laws on encryption and law enforcement investigations. GAO could have initiated a study focused on analyzing what happened and how the situation could be handled in the future. However, only the OTA is set up to anticipate this issue and have the foundational expertise to inform Congress about both the technological and policy questions at play when the issue arose.Americans are starting to take notice of the lack of effective lawmaking following some of the biggest technology scandals in recent times. Without the OTA’s forward-thinking approach, Congress’ ability to address the technological challenges of the present, and of the future, will fall short of what effective lawmaking during the ever-evolving digital age demands. A well-funded agency whose sole purpose is advising Congress on technology issues, free from the influence of corporate and special interests, is absolutely necessary.Congress’ technology assessment needs will only continue to grow as we work to anticipate the potential benefits and effects of emerging technologies. As we consider the use of technologies such as AI, facial recognition, quantum computing, and emerging energy storage and generation in both the private and public sectors, it is increasingly important that Congress have unbiased assessments of what is on the horizon. While CRS and GAO are well equipped to look at what is known and what has already happened, and to identify questions and gaps, the OTA’s role is to chart the way forward by generating new knowledge that answers those questions and fills those gaps.We must make strategic investments in our ability to encourage innovation, understand its benefits, and help constituents be best equipped for the challenges emerging technologies may bring. Technology is transforming our daily lives. We should not fear it; we should be well-prepared to deal with the changes it will create—the Office of Technology Assessment will help us do just that.

Bring your soundtrack on the go, wherever you go, with the VAVA Voom 23. With a 5,200mAh rechargeable battery, this Bluetooth speaker streams audio for up to 24 consecutive hours at an 80% volume level. With that battery life and its rugged engineering, you can take it on hikes, climbs, and all types of outdoor adventures. This little 8" speaker was built for the outdoors, with an integrated carabiner to attach to your bag, and the ability to withstand sand, dust, water, drops, knocks, impacts, and the wear of daily usage. It's on sale for $25.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

For all the completely evidence-free talk of "anti-conservative bias" on social media, as we keep pointing out, the real problem is that moderating content at scale is impossible to do well. I know I've been repeating this a lot lately, but it's because some people still don't seem to be getting this, or why it's important.Take, for example, this recent USA Today story talking about the content moderation woes not of conservatives on the platform, but of black users trying to talk about racism on Facebook. Or women talking about sexism. It's getting blocked as hate speech.

We've highlighted for years how flimsy (read: often nonexistent) privacy and security standards in the internet of things space is opening the door to all kinds of problems, from historically-massive DDOS attacks to your refrigerator leaking your Gmail login data. And while your your not-so-smart kettle exposing your network credentials is intimidating enough, the problem is far more worrisome in the "smart" automobile space, where a compromised system could prove decidedly more, oh, fatal.Most modern car infotainment GUIs hint at the sloppiness lingering just beneath. Security researchers have routinely highlighted how many cars are absurdly vulnerable to not just hacking but a near-total takeover of in-car systems. They've similarly noted how historically, automaker efforts to patch these vulnerabilities are slow to arrive--if they arrive at all.Granted it's not just retail vehicles that pose a security risk. Last week, researchers highlighted how GPS units installed in many fleet automobiles (designed to help companies track their shipments or employees as they travel) could also be somewhat easily compromised, allowing attackers to track these vehicles and their drivers without their permission:

Early last month, it appeared the NSA was ready to shut down its bulk phone records collection. The subject of the first Snowden leak was argued to be an essential part of the national security process, but as it underwent significant modifications, the NSA seemed willing to sacrifice a program of dwindling value to save its more intrusive collections.This perhaps inadvertent revelation came via a podcast, which is just the way things are done these days. Appearing on the Lawfare podcast, national security advisor Luke Murry had this to say about the Section 215 phone records collection:

Another life -- two of them actually -- has been destroyed by a law enforcement smash-and-grab operation. Acting on information residing solely in the nostrils of a single law enforcement officer, Alabama deputies destroyed a house and took possession of everything of value in it. C.J. Ciaramella has more details at Reason.

Another life -- two of them actually -- has been destroyed by a law enforcement smash-and-grab operation. Acting on information residing solely in the nostrils of a single law enforcement officer, Alabama deputies destroyed a house and took possession of everything of value in it. C.J. Ciaramella has more details at Reason.

When we learned about this project a couple of years ago we promised Bob Schwartz we'd run a plug for it when the time is right. Today is Jazz Appreciation Day and the crowdfunding has begun, so the time is now right. Here is Bob’s plug:You realize something needs to be done and you are the only one crazy enough to do it. This happened when my law and music worlds collided: A D.C. restaurant stopped booking live music due to license demands from a Performance Rights Organization. I suggested that bands could play "originals," and play from a book of Public Domain popular music – but no such book exists – even though as of Jan. 1, 2019 more music is entering the Public Domain.I realized I knew the very best music, law, and library people to create such a book, of 370 songs, and to give it away – in text and musical notation software, free for creative use and adaptation – as an Open Educational Resource. And to add up to 50 more "1924" tunes next Jan. 1. But this would mean raising all the money in advance to pay the curator / arrangers, who have agreed they would not claim any purported (and dubious) rights in their research, notation, harmonization, notes, or formatting, or in the compilation itself. If any such rights exist they will be licensed cc-0.I'm happy and relieved to report that the Public Domain Song Anthology will be acquired and sponsored by The Music Library Association (MLA), Peabody Institute (Johns Hopkins), the University of Michigan, and the University of Virginia.These university libraries and other MLA members have raised their share of the necessary funds, including for the publication of a print volume for subscribing libraries and donors. The rest, according to plan, must come from a public-facing crowd-funding campaign. Mike and Techdirt, who have their own share of worthy causes, have generously agreed to let me include this link to the Indiegogo page for completion of this project, which includes avenues for corporate or foundation sponsorship. For other means, including donor-advised support, contact me or MLA's Open Access Editor Kathleen DeLaurenti. Thanks.

Last year the Eleventh Circuit held that the Georgia statutory code, including annotations, was not protected by copyright. It was an important decision, not just for Carl Malamud's PublicResource.org, which had been sued for publishing Georgia's operative statutory law, including the annotations, but for any member of the public who necessarily needs to be able to freely access the law that governs them.Georgia has now petitioned the US Supreme Court to review the Eleventh Circuit's decision. But more significantly, Public Resource is also planning to file a brief encouraging that review. Not because Public Resource wants the decision reversed, of course. But because it wants the decision to be affirmed.Here's the situation. If the Supreme Court declines to review the decision, it will stand. That's a good thing, because it means there would be no risk of infringing copyright in publishing the Georgia state code. Given the decision's reasoning, it would also be difficult for any other state within the Eleventh Circuit to assert copyright in its statutory code either. But for any other state outside the Eleventh Circuit the question of whether statutory law could be copyrighted would remain unsettled. The Eleventh Circuit's decision is persuasive authority that courts elsewhere may defer to, but it's not binding authority, so they don't have to. What the Eleventh Circuit got right they could still get wrong.Also, even if other courts were to ultimately follow in the Eleventh Circuit's footsteps, it is arduous and expensive to have to litigate in each state and circuit in order to get to that point. Meanwhile plenty of publicly-beneficial uses will remain chilled by the fear of potential litigation and liability as we wait for all these courts to eventually rule that this public access, unrestrained by copyright, is OK.It would be much more efficient if the Supreme Court could just cut to the chase now and affirm that the Eleventh Circuit's holding is the law of the land. The case is ready and ripe for review, with especially cogent reasoning, so taking up this one would be much more expedient than having to wait for any other case to finally reach the petition stage. After all, the public's need to access the law that governs it is just as critical now as it will be later.An amicus brief is being put together on behalf of law students, legal educators, and lawyers who are solo practitioners or in small firms to remind the court of this fact. All of these constituencies need access to the law, and not just superficial access, but meaningful access that will allow for the analysis necessary to teach, learn, and practice the law as clients, current and future, need. Yet neither are economically in the position to be able to easily afford the subscription fees they have to pay the commercial databases which are able to monopolize access to the law when states can get away with demanding paid licenses for it. Small law firms and solo practitioners are at a distinct disadvantage to large firms who, with generally wealthier clients, are better able to absorb these costs. And all are at a disadvantage to their peers in Georgia, who no longer need to pay to get access to what the Eleventh Circuit recognized was "intrinsically public domain material, belonging to the People."If you are a solo or small firm lawyer, or are a law student, and would like to sign on as an amicus to encourage this Supreme Court review, click through the link above to the brief, where there is a form through which you may add your name before midnight on May 2.Disclosure: I've contributed to the drafting of this brief.

Whether it's from his novels, or his work for the EFF and others, most of you probably know all about Cory Doctorow. He last joined the podcast two years ago to discuss his book Walkaway, and this week he's back to talk about his latest book, Radicalized — a collection of four novellas, the first of which is directly based on the issues with the DMCA's anti-circumvention provisions. Check out the episode for a discussion about the book, anti-circumvention, tech companies, and more.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.

So we've noted for a while now how the Trump administration's protectionist bid to ban Huawei from US networks is a bit light on, you know, public evidence. While Huawei is now routinely lambasted for helping the Chinese government directly spy on American consumers, there's still no public evidence that supports that claim. That hasn't stopped the administration from waging an all out war on the company, ranging from pressuring the FCC to pressure carriers to avoid Huawei phones, to banning ISPs from getting public subsidies if they use Chinese equipment.The problem, again, is that despite an 18 month investigation the last time these concerns flared up, there's been absolutely no public evidence Huawei spies on US consumers. The other problem: numerous US hardware vendors have a bit of a history of drumming up lawmaker hysteria on this front to their own benefit.The Trump administration's protectionist gambit has had a lot of help from a US media that isn't particularly keyed into this added context, or how patriotism may color their coverage of the issue. The latest case in point: Bloomberg this week issued what seemed like a bombshell report claiming they'd finally found evidence of Huawei installing seemingly nefarious backdoors in their gear:

In response to who knows what -- maybe just a desire to make it easier for the government to track/investigate internet users -- the Austrian government wants to eliminate online anonymity in its country by 2020. The proposed law says pseudonyms are still allowed, but they'll be linked to accounts that require users to provide site operators with a ton of personal information.

The Complete Learn to Code Master Class Bonus Bundle has 11 courses to get you up to speed with popular programming languages. You'll learn about C++, Python, Google Go, JavaScript, and more. It's on sale for $29.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Over the last year or so, a key focus of Facebook's has been to battle what it calls "coordinated inauthentic behavior." While the phrase may sound vaguely Orwellian, I actually appreciate the thinking behind it. It's one thing to say you're going after "fake accounts" or "propaganda" or "trolls," but that language is imprecise, and certainly doesn't provide much clarity for what Facebook is actually targeting. Indeed, using vague language continues to be a massive problem in all sorts of content moderation challenges. So, instead, Facebook focused on "coordinated inauthentic behavior," which is much more definable, and also neatly encapsulates a lot of activity that most people all agree is at least somewhat problematic in a variety of contexts. I've also appreciated some of the actions that Facebook has taken to try to stop or prevent such "coordinated inauthentic behavior."What I don't appreciate is a highly questionable lawsuit Facebook filed on Friday, again supposedly targeting coordinated inauthentic behavior on its platforms: in particular fake likes and fake followers. Now, let's be clear: no one is suggesting that services that provide fake likes or fake followers are a good thing. They are scams and they are designed to mislead people. I think Facebook has every right to try to delete such fake likes and fake followers from its platforms.What I'm less sure of, however, is if Facebook should be able to sue the companies (and the individuals behind those companies) for creating such a service. But that's what Facebook has done. The complaint argues that it's a CFAA violation (and a violation of California's version of the CFAA). If you don't recall, the CFAA (the Computer Fraud and Abuse Act) was the law that was originally designed to go after malicious hackers, but was written in such broad and vague language -- regarding things like "unauthorized access" and "exceeding authorized access" -- that it's been used in all sorts of questionable ways, including not obeying a web site's terms of service. It's been referred to as "the law that sticks" when no other law can be used against "vaguely icky" activity done on a computer.One of the most annoying things over the past few years is seeing big internet companies regularly try to use the CFAA and expand what it covers in ways that are extraordinarily broad and could lead to real problems down the road. Facebook has actually done this for years, with a big case being the time it sued a site, Power Ventures, which helped users aggregate all their various social network info. This was not "hacking" in any real sense, and the access was "authorized" by the end user, but Facebook didn't like it and argued that because it sent Power a cease and desist letter, that any further access violated the CFAA. Unfortunately, the courts have agreed with Facebook, setting a dangerous precedent.And, now, Facebook has gone back to the well, arguing that setting up fake likes and fake followers also violates the CFAA:

You might recall that Verizon found itself under fire last summer after it throttled the data connection of California firefighters as they were busy battling the Mendocino Complex Fire. When the firefighters complained to Verizon, the company didn't immediately put the restrictions on hold; instead they attempted to upsell the providers to a faster plan. While not technically a net neutrality violation, the repeal of the net neutrality rules (and FCC authority over ISPs) did impede the first responders' ability to effectively contest the restrictions. Verizon also ultimately admitted that the move was in direct violation of the company's own rules.Last week, California took the first steps toward passing a law that would prevent wireless carriers from imposing such restrictions on first responders during an emergency. Not too surprisingly, wireless carriers (who've effectively been dictating all federal telecom policy the last few years) weren't too keen on that idea:

Although the terrible fire at Notre Dame cathedral in Paris destroyed the roof and spire, the main structure escaped relatively unscathed. Thoughts now are on repairing the damage, and rebuilding the missing parts. France has announced that it will hold an international competition to redesign the roofline. As the Guardian points out, the roof was ancient, but the spire was not:

Things are getting interesting. For the past few months, we've been discussing the emergence of a new player in the digital games distribution business, in which Valve's Steam platform has been dominant for roughly a decade. Epic Games' platform has begun gobbling up new AAA game releases, signing them to 6 month exclusivity deals. Those deals have generally angered the majority of gamers, leading to the kind of review-bombing of already-released titles on Steam that Valve has previously pledged to prevent.It has appeared for all the world that a new era of game exclusivity has begun in the PC gaming space. This is not a development that gamers like. Nobody wants to find out that a PC game that by nature cannot be hardware exclusive has suddenly become distributor exclusive. But even as the outrage has grown, most have seen this as a business model competition, with Epic trying to ramp up its user numbers by signing these deals, which themselves are signed by offering developers a flat 88% of the revenue generated, whereas Steam only offers anywhere from 70%-80%.The majority of reports are somewhat slanted to make Epic the bad guy in all of this. After all, it is the one introducing exclusivity into the industry. In that light, this is as much a PR battle as a business battle. And if that's true, then Epic boss Tim Sweeney just fired off one of the great PR counterattacks the gaming industry has ever seen.

New York City's Department of Investigation can only do so much. The rest is up to the NYPD. The DOI made 145 recommendations in 2018 -- covering everything from use of force reporting to sex crime investigations. To date, the NYPD has implemented less than half of those. It has completely rejected 31 recommendations, a third of those covering proposed changes to its use of force reporting.Oversight is only as good as the agency being overseen. The NYPD doesn't care much for accountability. So, it's chosen to ignore the things it doesn't like and half-ass its way towards compliance with recommendations it feels it might be able to live with.Most of the rejections come from changes to use of force reporting. The NYPD would prefer no use of force reporting. The DOI would prefer 100% accountability in this area. A "compromise" has been reached. From the report [PDF]:

There are so many issues related to what's referred to (misleadingly, of course) as "intellectual property" that it's difficult to cover them all. For a while I'd been meaning to write about the attempt to "raise up" trade secret law to the federal level and what kinds of problems that might cause. Professor Eric Goldman, not surprisingly, was covering this all along, noting that the Defend Trade Secrets Act from 2016 was the "biggest IP development in years" (even if Congress, in a little twist, made sure it was not officially an "intellectual property" law -- which means that Section 230 immunity still applies).Of course, it usually takes a few years for the real effects of new laws to be felt. In a fascinating, if troubling article, economist Ike Brannon, notes that we may be on the verge of a new raft of patent trolling-esque legal fights over loosely defined "trade secrets," that have the potential to be much, much worse than patent trolling. At least with patent trolls, there's an actual patent with actual definitions (even if they're a mess) that can be looked at to see if there's infringement. The world of trade secrets is a lot more murky.Brannon points to a crazy recent case, involving a title insurance company Title Source (now Amrock) who sued a data analytics firm called HouseCanary over a claim that HouseCanary breached a contract the two companies had to deliver "an advanced, automated home valuation model." HouseCanary countersued, claiming that Title Source used its proprietary trade secrets to develop its own home valuation model. As Brannon points out, most people thought little of these counterclaims... but a funny thing happened when it got to court:

For years, advocates for the non-wealthy public have put forward plans to simplify the tax-preparation process by having the IRS pre-prepare a tax filing with the information it already has, sending it to citizens, and allowing those citizens to either sign and return it or do their own tax preparation if they think there are errors. Several politicians have put versions of this plan forward, including Elizabeth Warren. The idea is that, for the vast majority of Americans, the IRS already has all the information it needs for the tax filing. Why make most people do tax prep when they don't have to?Well, for just as many years, the companies that make money by doing this tax prep work have lobbied heavily in Congress to keep this from becoming law. Intuit, makers of TurboTax software, has been particularly active on this front, with novel arguments that amount to, "But if you make this law, then we'll make less money." When that messaging became a PR disaster, the company tricked a bunch of mouth-pieces to say all this for it.Now, if all of that seems like shady shit, you ain't seen nothing yet. One of the ways companies like Intuit hand-wave concerns that its lobbying efforts are coercing the poor and middle class to pay for tax prep that is so simple it should be free is by pointing out that it entered into an agreement with the IRS to offer their own free-to-file programs for anyone that makes less than $66k in a given year. While that's true, ProPublica has a nice write up of just how far Intuit in particular goes to hide this program from the very public it's supposed to be serving.

Over and over and over again we've pointed out that content moderation at scale is impossible to do well -- in part because at such scale, there are bound to be a huge number of errors, even if the percentage of errors is relatively small. We've also pointed out that a lot of the content decisions that moderators face fall into a terrible gray area, where it's not easy to craft scalable rules that can be applied fairly across the board -- in part because context matters and it's impossible to scale the reviewing and understanding of context.Motherboard recently had an excellent article detailing one manifestation of this problem, by noting that trying to apply rules across the board leads to some problematic results:

Upgrade to crisp Bluetooth listening that's free from distractions with the AXR 1Voice Active Noise Cancelling Bluetooth Headphones! These over-the-ear headphones sport built-in noise-cancelling technology that eliminates 90% of outside sound, making for a more immersive listening experience. They're rated to last up to 12 hours on a single charge and feature a 3.5 mm jack for extra flexibility. They're on sale for $50.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Since some conservatives are convinced social media companies are trying to turn their platforms into liberal paradises, weird and ignorant noises are being made by a handful of government figures. I blame Ted Cruz.Last year's Facebook hearing was marked/marred by Republicans incorrecting [h/t n-gate] each other about Section 230 immunity and its supposed reliance on Twitter, Facebook, et al maintaining their position as "neutral public forums." Section 230 does not require this, but it's become somewhat of a DC urban legend at this point. Since this highly-inauspicious beginning, the Senator from Texas has pitched a "Fairness Doctrine" for the internet and aligned himself with Rep. Louie Gohmert to misunderstand the internet as much as possible.Back at the state ranch, a member of the Texas Senate has decided he's going to force social media platforms to be neutral. Bryan Hughes has crafted a bill that would allow the state's attorney general to sue Twitter, etc. for booting people off their platforms. There's a big "if" in the bill that pretty much ensures it will never be enforced, even if it somehow manages to survive a Constitutional challenge.

In October 2017, a Louisiana federal court tossed a lawsuit brought by an anonymous cop against:

Last summer, New York State took the historically-unprecedented step of voting to kick Charter Communications (aka Spectrum) out of New York State. Regulators say the company misled them about why it repeatedly failed to adhere to merger conditions affixed to the company's $86 billion acquisition of Time Warner Cable and Bright House Networks, going so far as to falsify (according to the NY PUC) the number of homes the company expanded service to. The state has also sued the company for failing to deliver advertised broadband speeds, for its shoddy service, and for its terrible customer support.While the threat was largely unprecedented, there have been indications that this was largely just a negotiations tactic by the state. However sincere the threat was, it appears to have worked. Charter Spectrum and state regulators have struck a new deal (you can find the settlement here, pdf) that will keep the company in NY State, but will require it to actually, you know, try:

Our first place winner on the insightful side this week is Stephen T. Stone with a response to one commenter's silly conspiracy theory about commenters' accounts:

Five Years AgoThis week in 2014, James Clapper was busy giving speeches to students to try to prevent any admiration of Ed Snowden, and working hard to stop members of the intelligence community from talking to pretty much anyone. Homeland Security was warning parents that typical teenage behavior might be a sign of terrorist radicalization, while a court was telling the DOJ it must release the memo that described the justificiation for a drone strike on a US citizen.Meanwhile, we were wondering why the US government was getting involved in the Aereo case (on the broadcast industry's side of course), though at least it appeared at the time that the SCOTUS justices understood the gravity of the case, even as so many people persisted in describing Aereo's compliance with copyright law as circumvention of copyright law.Ten Years AgoThis week in 2009, while the entertainment industry was doing its best to celebrate the recent verdict against the Pirate Bay, some folks in Sweden noticed that the judge in the case appeared to have ties to the copyright lobby, while journalists were beginning to realize that Google can do anything The Pirate Bay could. Meanwhile in the UK, British Telecom was voluntarily blocking the site as an act of unnecessary self-regulation.We also took a look back at ten (failed) years of the V-Chip, and witnessed the end of an era when Yahoo announced it was killing off Geocities.Fifteen Years AgoThis week in 2004, we witnessed both slightly good and worryingly bad omens regarding the future of patent reform — but we also saw the birth of the EFF's excellent patent-busting program. A lawsuit over liability for Napster's investors was headed to court, while the RIAA was ditching its absurd amnesty program for file sharers, various groups were trying to automate the booting and blocking of file sharers — though there were early signs of a shift in piracy from file sharing to stream ripping. We also saw the first person ever charged under a seven-year-old internet stalking law.

More details are coming to light about California's opacity activists. Faced with impending transparency, a handful of law enforcement agencies decided to fire up the shredders rather than risk turning over police conduct records to the public under the new public records law.Inglewood's police department was given the go-ahead to shred years of responsive documents last December in a council meeting that produced no record of discussion on the matter or the council's determination.Public records requests filed after the new law went into effect in January uncovered moves made by the Fremont city council to help local police rid themselves of records the public might try to request. The city lowered the retention period for officer-involved shooting records from 25 years to ten and allowed the department to destroy 45 years of police misconduct records it had decided to hold onto until it became inconvenient for it to do so.Darwin BondGraham of The Appeal has discovered even more record destruction by California law enforcement agencies occurring ahead of the law's implementation.

Minnesota appears poised to be the first state to pass "right to repair" legislation taking aim at corporate efforts to monopolize repair. The grass-roots technology movement in support of these bills began in rural America, where the draconian DRM embedded in John Deere tractors made repairing them a costly nightmare for many farmers. The movement has also been prodded along thanks to efforts from companies like Sony, Microsoft, and Apple to effectively ban third-party repair of games consoles and phones; a move that not only restricts consumer freedom and drives up consumer costs, but creates additional unnecessary waste.California recently became the 20th state to eye such legislation, though Minnesota appears likely to be the first to actually pass such a law. Minnesota's law has passed through committee and awaits a vote in the Minnesota House, and if approved (which seems likely) would take effect in early 2020.Not too surprisingly, both John Deere and Apple lobbyists have descended upon Minnesota to prevent that from happening. For its part, John Deere doubled down on the primary (and false) argument most of these companies are making; namely that if you let consumers and authorized third-party shops repair consumer tech, you're putting consumers at risk:

It's the trademark story that simply won't go away and in which the legal system appears to get everything wrong. The saga of the San Diego Comic-Con's legal adventures against what was formerly the Salt Lake Comic Con (now rebranded as FanX Salt Lake Comic Convention) has been brutally frustrating. The whole thing started when the SDCC decided somewhat out of the blue to begin enforcing a trademark it had been granted for "Comic-Con" against the Utah production. The trademark original sin of this story began all the way back with the USPTO, which absurdly granted the SDCC its trademark for a purely descriptive term, one which is only unrecognizable as such due to the shortening of the second word from "convention" to "con." Despite that, the trademark suit brought against the Salt Lake Comic Con somehow ended in a win by jury for the SDCC, which was awarded only $20k. In the trial, SLCC had pointed out several times that the term "comic-con" was both descriptive in nature and clearly had been abandoned by SDCC, evidenced by the long list of other comic conventions going by the term carried out throughout the country.Deep breath.Well, after getting its five-figure award for a lawsuit that ran the course of nearly half a decade, SDCC realized that it sure would suck to be stuck with its $4 million in legal fees at the end of the day, so it petitioned the court to force SLCC/FanX to pay those fees. Oh, and in accordance with the jury's finding that there was trademark infringement, it asked the court as well to ban FanX from calling itself a comic con, a "comic convention", or any phonetic versions of those terms. Such a request itself validates the claim that SDCC's trademark is descriptive. If a comic convention cannot call itself a "comic convention" due to an existing trademark, that trademark is descriptive, full stop.Unfortunately, because the world doesn't make sense any longer, the judge in the case did issue an injunction against FanX calling itself a "Comic-Con" and ordered FanX to pay SDCC $4 million in attorney's fees.

In the fall of 2017, we wrote about a, well, bananas copyright lawsuit filed by costume maker "Rasta Impsta" against K-Mart, alleging that it was selling an infringing banana costume.That case quickly settled (so, it's likely K-Mart just paid off Rasta Imposta to go away), but around the same time the company had sued a few other companies over similar costumes, including one operation called Kanagroo Manufacturing, for making a similar banana costume. As we had noted at the time of the Kmart case, historically, there's been no recognized copyright in costumes, since articles of clothing are considered uncopyrightable. Except, in a truly awful Supreme Court ruling in 2017, the court swung open the door to clothing/costume copyrights, by arguing that certain elements in a piece of clothing could be considered copyrightable as "design" rather than as a "useful article" (which is not subject to copyright).And, thus, last year a District Court judge issued an injunction against Kangaroo Manufacturing, arguing that its banana costume likely infringed on the banana costume of Rasta Imposta. The court, not surprisingly, cites that awful Star Athletica Supreme Court ruling to argue that elements of the banana costume are separable and thus can be covered by copyright. Rasta argued that the following elements were separable and could be covered by copyright:

The "War on Cops" is a belief system that's currently being preached to the converted. Evidence abounds that it's safer to be a cop now than it's ever been, and yet, officers still claim they're being targeted and use these unfounded fears to obtain military equipment and qualified immunity rulings.We've covered how safe police work is here before. But the narrative coming from the law enforcement community refuses to change, despite evidence to the contrary. Research is piling up, exposing law enforcement agencies' claims of cops being targeted by a vengeful populace as a self-serving lie. At best, these claims are merely wrong. But given the easy access to law enforcement officer death data, a refusal to see the stats for what they are is incredibly disingenuous at best.Adding yet more documentation to the pile is a study released by researchers from three American universities. The study [PDF] shows policing just keeps getting safer.

The AWS Solutions Architect Certification Bundle is a 6-Course, 32-Hour bundle that will help you get on certification track with the industry-leading cloud computing platform. You'll start with learning about Amazon Web Services at a high level by introducing cloud computing concepts and key AWS services. Other courses cover the AWS Certified Solutions Architect exam, the methods that AWS uses to secure its cloud services, and much more. It's on sale for $49.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Two recent crashes involving Boeing 737 Max jets are still being investigated. But there is a growing view that anti-stall software used on the plane may have caused a "repetitive uncommanded nose-down", as a preliminary report into the crash of the Ethiopian Airlines plane puts it. Gregory Travis has been a pilot for 30 years, and a software developer for more than 40 years. Drawing on that double expertise, he has written an illuminating article for the IEEE Spectrum site, entitled "How the Boeing 737 Max Disaster Looks to a Software Developer" (free account required). It provides an extremely clear explanation of the particular challenges of designing the Boeing 737 Max, and what they tell us about modern software development.Airline companies want jets to be as cost-effective as possible. That means using engines that are as efficient as possible in converting fuel into thrust, which turns out to mean engines that are as big as possible. But that was a problem for the hugely-popular Boeing 737 series of planes. There wasn't enough room under the wing simply to replace the existing jet engines with bigger, more fuel-efficient versions. Here's how Boeing resolved that issue -- and encountered a new challenge:

We've been saying for ages now that content moderation at scale is literally impossible to do well. It's not "difficult." It's impossible. That does not mean that companies shouldn't try to get better at it. They should and they are. But every choice involves real tradeoffs, and those tradeoffs can be significant and will upset some contingent who will have legitimate complaints. Too many people think that content moderation is so easy that just having a a single person dedicated to reviewing content can solve the problem. That's not at all how it works.Professor Kate Klonick, who has done much of the seminal research into content moderation on large tech platforms, was given the opportunity to go behind the scenes and look at how Facebook dealt with the Christchurch shooting -- an event the company was widely criticized over, with many arguing that they took too long to react, and let too many copies of the video slip through. As we wrote in our own analysis, it actually looked like Facebook did a pretty impressive job given the challenges involved.Klonick, however, got to find out much more from the people actually involved, and has written up an incredible behind the scenes look at how Facebook dealt with the video for the New Yorker. The entire thing is worth reading, but I did want to highlight a few key points. The article details how Facebook has teams of people around the globe who are ready to respond and deal with any such "crisis," but that doesn't make the decisions they have to make any easier. One thing that's interesting, is that Facebook does have a policy that they should gather as much information as possible before making a call -- because sometimes what you see at first may not tell the whole story:

A few months back Steven Spielberg had a "get off my lawn" moment in demanding that films from Netflix and other streaming services be excluded from Oscar contention. The sentiment isn't uncommon among old-school Hollywood types who see traditional film as somehow so sacred that it shouldn't have to change or adapt in the face of technological evolution. It was the same sentiment recently exhibited by the Cannes film festival when they banned Netflix films because Netflix pushed back against absurd French film laws (which demand a 36-month delay between theatrical release and streaming availability).We'll note that shortly after Spielberg's rant, he could be found pushing streaming services at Apple, which suggests a dash of...inconsistency in his arguments. Regardless, Academy members don't appear swayed by Spielberg's request, and have announced that current rules for Oscar contention will remain unchanged. More specifically the Academy will retain "rule two," which says a film is eligible to be considered for an Oscar so long as it has a seven-day run in an Los Angeles area theater. So sayeth the Academy:

Five years ago, the Massachusetts Supreme Judicial Court got out ahead of the tech curve by declaring that state law enforcement would need warrants to seek historical cell site location info. This predated the US Supreme Court's Carpenter decision by four years. The state court's prescient decision was compelled by the state's Constitution, which provides greater protections than the United States' Constitution.But no matter which Constitution was used, the court found that the Third Party Doctrine shouldn't cover CSLI because, while everyone uses cellphones to communicate with each other, not a single cellphone user carries one around just to create tracking data for the government.A recent decision by the same court expands protections for cellphone users -- going further than Carpenter's protection of historical cell site location info. As the ACLU's Kade Crockford points out, real-time acquisition of location info now comes with a warrant requirement. This covers more than service provider-assisted "pings." It also covers one of law enforcement's favorite toys.

You will hopefully recall a few posts we had previously written about Blizzard pointing its considerable legal guns at fan-run World of Warcraft servers. In 2016, and again in 2018, Blizzard issued takedown notices and legal threats for two fan-run servers that were running the "vanilla" version of WoW that came out way back in 2004. With the nostalgia fad in full swing, fans of the game were interested in going back to its roots. Blizzard does not offer any vanilla experience of this sort, so fans of the game got together and offered one for themselves. Blizzard got both instances shut down.But in those cases, Blizzard argued that the vanilla product competed with the current iteration of the game. What if there had been no current iteration? What if World of Warcraft had simply shut down, with Blizzard no longer offering any way to play any version of it?Well, that's exactly the situation NCSoft finds itself navigating, as it recently came to light that a smallish group of enthusiasts for MMO City of Heroes had been hosting a server for the game that had been completely shut down in 2012. Perhaps the most surprising part of the story is that the folks running the server kept it private and mostly secret for something like six years. Perhaps the least surprising part of the story is that, when word eventually got out about it, pretty much everyone went into full freak out mode.

A few months back, we wrote about the concern that Spotify buying Gimlet Media and supposedly betting big on podcasts could signify the end of the open era of podcasts. The fear was that Spotify would ramp up the effort to put many podcasts behind its paywall, and silo off certain podcasts. To be fair, Spotify would hardly be the first to do so. Stitcher has been doing something like that for years. But, of course, there are other players in the field as well. Over the last few months there's been a lot of buzz around a company called Luminary which has raised somewhere around $100 million to, in its own words, become the Netflix of podcasting.The idea behind Luminary is that it would offer up an app that could access all the usual podcasts via RSS feeds, but that it would also push people towards a monthly subscription fee that would include some "premium" ad free podcasts that it would develop itself. Over the past few months, it's been clear that Luminary has been putting that $100 million warchest to work, announcing premium podcasts from the likes of Trevor Noah, Malcolm Gladwell, Russell Brand, Adam Davidson, Manoush Zomorodi, Hannibal Burress, Conan O'Brien's team and a lot more.And this week the company finally launches, and apparently Spotify is blocking Luminary from offering all of its podcasts, even the ones that are freely available for everyone else from Gimlet:

Way back in 2012, the Washington Post published an article entitled 'Why Hollywood Is Doomed'. The thrust of the post is that the major movie studios were entirely too focused on restrictive copyright laws and draconian enforcement efforts when any simple look at Hollywood revenues would show that great movies make great amounts of money. That is the correlation that Hollywood should be focused on, not imaginary stances that every instance, or even a majority of instances, of piracy represents lost ticket revenue. The author's example of this was the original The Avengers movie, which is nearly universally accepted as just a fantastic flick, but which was also heavily pirated. Despite the piracy, the box office take worldwide for the movie was $1.5 billion, on a budget of $220 million. It was such a triumph, in fact, that it solidified the MCU series of movies that have made so much money that throwing actual numbers around at this point is pointless.Fast forward to today, when Avengers: Endgame is set to release in America this week, but where it was initially released in China. The strategy behind releasing to China first was explicitly to minimize the effects of piracy in that country. That strategy doesn't appear to have worked all that well, as the film is already on torrent sites ahead of the US release, due to several cam-versions of the film being created in China.

A rather surprising conclusion has been reached by the Sixth Circuit Court of Appeals: a common parking enforcement tool of the trade may be unconstitutional.Not everyone who's been ticketed multiple times for parking violations has made a federal case of it. Alison Taylor did, though, arguing that Saginaw, Michigan's practice of "chalking" tires was a violation of her Fourth Amendment rights. Taylor had been ticketed fifteen times when she decided to sue. The court sides with her, finding that marking tires to determine whether a vehicle has been parked too long constitutes not just a search, but an unreasonable one, under the Fourth Amendment.The Appeals Court opinion [PDF] leads off with an almost unforgivable pun:

So this post is going to touch on some issues that people get very emotional about, and I'm going to ask (probably pointlessly) that folks not focus on those issues, but on the issue that this post is actually trying to address: which is the ridiculous claim that Change.org can be sued for notifying users that statements in a petition "may be contested." A group called "Stop Antisemitism" put a petition on Change.org making a bunch of claims about CAIR, the Council on American-Islamic Relations. Many of those claims are ones that I would personally label as "highly questionable," or in some cases "downright misleading," and which some might say are simply "pure bullshit." The actual petition is supposedly a call to have Attorney General William Barr investigate CAIR. Not surprisingly, a bunch of people have complained to Change.org about this particular petition.Change.org decided to leave the petition up, but to append a "flag" at the top with the following text (in fairly small print):

The 2019 Microsoft Excel Bootcamp Bundle has 5 courses designed to help you become a data crunching pro. You'll learn the basics of designing a spreadsheet, creating charts and graphs, then move on to learning popular functions and automation. One course focuses on PivotTable, which allows you to automatically sort data from one table and present it in another, and another focuses on Microsoft VBA to help you automate tasks and operations that you perform frequently, and more. The bundle is on sale for $39.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Maryland legislators -- pretty much all of them -- are congratulating themselves for making it easier to put kids in jail.

Big wireless carriers haven't been exactly honest when it comes to the looming fifth-generation wireless standard (5G). Eager to use the improvements to charge higher rates and sell new gear, carriers and network vendors are dramatically over-hyping where the service is actually available, and what it can actually do. Some, like AT&T, have gone so far as to actively mislead customers by pretending that its existing 4G networks are actually 5G. AT&T took this to the next level recently by issuing phone updates that change the 4G icon to "5GE" on customer phones, despite the fact that actual 5G isn't really available.This isn't just confusing consumers. Even Salesforce CEO Marc Benioff was misled this week by AT&T's gambit: