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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:

Has the DHS been trying to put the "IC" in ICE? A letter reviewed by Betsy Woodruff of The Daily Beast seems to indicate ICE is possibly now part of the "Intelligence Community," bringing it in line with the FBI, CIA, and others who have access to the NSA's collections.

The unsettled nature of how copyright law applies to public works of art like murals continues to be frustrating in the extreme. We've already seen examples of how this becomes an issue with mural artists whose work briefly appears in unrelated works, such as music videos, as those works are filmed in public. You guys remember public, right? It's that place we all get to coexist and enjoy together without constantly stomping on each other's necks over intellectual property rights. Except we don't anymore, as far too many artists believe that they can imprint their art in full view of the public and then disallow any commercial depiction of that public space.And if that doesn't sound idiotic to you, you need psychological care.This is once again at issue, as Mercedes has asked a court to make it clear that murals appearing on public walls in the background of a few promotional photos of their vehicles is fair use. This is in response to the very threatening noises made by four mural artists to their murals appearing in the background of some Instagram images. To be clear, Mercedes is suing only to ask for a court to declare images, like the following, fair use, not to attack the artists themselves.That partial mural in the background is one of the murals in dispute by the four artists. The mural is not the focus of the photo. It's not the subject of the photo. It's just that Mercedes took pictures of its vehicle driving around in public and those murals are in the background, partially depicted. Whatever that is, it sure doesn't sound like copyright infringement, and sure does sound a hell of a lot like fair use. Which is exactly what Mercedes is asking the court to declare.

Almost two years after Marcus Hutchins, a.k.a. MalwareTech, was detained by the FBI at the airport as he left a security conference in Las Vegas, the government finally has finally gotten its man.Charges were stacked and restacked over the past couple of years, as the government brought pressure to bear on Hutchins, who maintained his innocence right up to the point he signed the plea agreement [PDF]. Faced with possibility of spending several years in jail -- and evidence of his past, somewhat shadier exploits continuing to surface -- the man who saved the world from the Wannacry ransomware has pleaded guilty to two conspiracy charges. This means the government will be dropping the other eight charges against Hutchins, which will hopefully keep the researcher from spending several years in jail.

Stupid Patent of the MonthThere’s an increasing insistence from the highest echelons of the patent world that patent abuse just isn’t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls—a term for companies that do nothing but collect patents and sue others—mere “monster stories,” and suggested in a recent oversight hearing that it was simply name-calling.But whatever you call them—trolls, non-practicing entities, or patent assertion entities—their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It’s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses—candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in “sales and distribution via electronic transactions,” or use an automated system “for processing business and financial transactions,” Landmark says they infringe one of its patents.Those lawsuits don’t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood’s patents are made clear both by news accounts of Lockwood’s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood’s patents.Patent Office records show Lockwood first applied for a patent in 1984, but his litigation ramped up after he acquired U.S. Patent No. 6,289,319 back in September 2001. The document describes an “automatic business and financial transaction processing system,” which Lockwood has interpreted to give him rights to demand licensing fees from just about any web-based business. Upon receiving that patent, Lockwood promptly sent 100 letters to various e-commerce businesses, demanding $10,000 apiece. When that didn’t work, he started filing lawsuits.For more than 15 years now, some companies have been paying thousands of dollars to license Lockwood’s patents rather than pay the legal fees required to defend themselves. Hiring attorneys to fight the patents would have cost far more, and Lockwood was keenly aware of this leverage.“Do they really want to spend $1 million and two years of their life to invalidate a patent they can license for a couple thousand dollars?” Lockwood said in 2003, speaking to a Los Angeles Times reporter about his lawsuits. “People get divorced over this stuff. They have strokes over this.”Sixteen years and more than 100 lawsuits later, stress and the expenses continue to mount for Lockwood’s targets. Through Landmark, Lockwood continues to demand money from businesses that provide basic e-commerce, although his price has gone up. Companies targeted by Landmark Technology patents in recent years have shown demand letters [PDF, PDF] indicating the company now demands around $65,000 to avoid a lawsuit.Not a single court has ever weighed in on the merits of Lockwood’s patent claim, according to court papers [PDF] filed in 2017 by one of his targets.Despite some court rulings that have helped cut back patent trolling over the years, nothing has slowed down Lockwood’s broad assault on Internet commerce. This year, through a newly created company called “Landmark Technology A,” Lockwood’s patent no. 7,010,508—related to the ‘319 patent that came before it—has been used to sue two more companies: a specialty bottle-maker in south Seattle, and an Ohio company that sells safety equipment.Based on Landmark’s history, it’s unlikely these two lawsuits will be the last.Continuations and ConsequencesHow did this happen, and how does it continue? Lockwood applied for his first solely-owned patent in 1984, getting it two years later. It describes a network of “information and sales terminals” that could “dispens[e] voice and video information, printed documents, and goods,” accepting credit card payments. There’s no evidence Lockwood developed any such network or even had the ability to do so. In fact, Lockwood, a former travel agent, reportedly admitted during a deposition that he had never used a personal computer “for any length of time,” according to the 2003 Los Angeles Times profile.In the mid-90s, Lockwood sued American Airlines for patent infringement, seeking to collect royalties on its SABRE flight reservation system, which he claimed infringed three of his patents. He lost that case when, in 1997, an appeals court agreed with the district court that his patent claims were not infringed and were invalid.That wasn’t the end of Lockwood’s efforts to make money through patent litigation, though. He continued to get more patents, acquiring Patent No. 6,289,319 in 2001, and 7,010,508 in 2006. Both patents have been used in more than 85 lawsuits, according to the LexMachina legal database. He was able to get those patents despite the fact that they were based on a patent that had been found invalid. Even better for Lockwood, he was allowed to use the “priority date” of the earlier patent. That means the only prior art that could be used to invalidate the patent would have to be from earlier than that priority date—May 24, 1984.Led by a family-owned chocolate shop, a group of small businesses banded together to share legal costs and fight Lockwood’s PanIP. When they put up a website about PanIP’s abuse of the system, Lockwood sued the owner of the chocolate shop for defamation and trademark infringement.The ‘319 patent, which is richly deserving of our “Stupid Patent of the Month” award, was issued because of a problem we’ve spoken about before—abuse of the continuation process.The Patent Office allows applicants to file “continuation” applications with new claims, as long as they’re based on what was disclosed in previously-filed applications. This creates opportunities for applicants to game the system and get patents on advances they could not have developed. For example, even though Lockwood applied for the ‘319 patent in 1994, it’s a continuation of the original 1984 application—which means that only prior art from 1984 or earlier can be used to invalidate it.Landmark’s complaints demand money from operating businesses, claiming that because their systems process “business and financial transactions between entities from remote sites,” they infringe the ‘319 patent. Their recent complaint [PDF] against Illinois-based Learning Resources, Inc. includes a claim chart [PDF] explaining the alleged infringement, which is a 42-page detailed chart that describes using a computer to order a toy on the defendant’s website.That chart makes clear that Landmark’s patent doesn’t claim any particular technological advance—just the basic idea of transmitting data between networked computer terminals.This patent should be invalid under Section 101 of the patent laws for failing to claim an actual invention. At best, it describes basic computer technology—like an “on-line means for transmitting said information, inquiries, and orders”— to exchange information, and respond to orders. That is a ubiquitous and essential part of e-commerce, not a patent-eligible invention.Right now, lobbyists are pushing for a wholesale re-write of Section 101, which is the best chance of stopping patents like this one early enough in a case to avoid spending hundreds of thousands of dollars on lawyers and expert witnesses. Drastic alterations to Section 101 could leave targets of Landmark in an even worse position—in order to get out of a multi-million dollar lawsuit, they’ll have to find published, pre-1984 prior art describing the precise, nearly indefinable contours of Lockwood’s “invention,” and invest huge sums on prior art investigations as well as expert witness reports.Before lawmakers distort Section 101 so that it’s nearly useless, they should consider campaigns like Landmark’s. It involves an “inventor” who’s long been focused on litigating patents, not creating new innovations—and who admits to leveraging the high cost of litigation defense against small businesses. Lowering the bar for patent-eligibility even further will do far more to threaten innovation than encourage it.Reposted from EFF's Stupid Patent of the Month series.

You know how supporters of Article 13 in the EU keep insisting that just because Article 13 (now Article 17) says not to take down non-infringing content that any worries about taking down non-infringing content are misplaced? About that... This week there's been a lot of fuss about the whole "Time 100" thing that purports to highlight the 100 most influential people in the world. This bit of backslapping among the famous starts off with glowing magazine profiles, followed by a big party, the Time 100 Gala and the Time 100 Summit, which is the conference version of the backslapping. Time Magazine livestreamed the Summit yesterday via YouTube.

Here's how we're fighting the War on Drugs. Lots of stuff going on, but not much seems to be happening in terms of actually, you know, keeping drugs from ending up in buyers' hands. The byproduct of the problem -- the cash -- is all anyone seems interested in.As Brad Heath points out in his tweets referencing this in rem complaint, federal agents camp out at major air traffic hubs looking for nothing but cash. As we've covered here earlier, the DEA is actually paying TSA agents to search for cash and alert officers if any amount worth seizing rolls through checkpoints.The same thing is happening in FedEx hubs. In this case, officers from the DHS, Indiana State Police, Indiana Metro PD all combined to stop some cash from traversing the country from Ohio to Arizona.The filing lets us know what the government finds suspicious in terms of packaging and sending stuff around the country: everything. If you like using FedEx and their new boxes, but apply a bit too much tape, you might be a drug dealer. From the complaint [PDF]:

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Last November, John Oliver had a fun episode of his show discussing whether or not President Trump had fulfilled his promise to "drain the swamp" (spoiler alert: he did not). Part of that episode focused on the story of Scott Angelle, who Trump appointed to run the Bureau of Safety and Environmental Enforcement, an organization within the Department of the Interior, whose sole focus is supposed to be on enforcing safety standards for offshore oil drilling. The organization was created in the wake of the BP Deepwater Horizon spill, after people realized that there was a conflict of interest in the existing government agency in charge of enforcing safety, the Minerals Management Service, because it was also in charge of collecting revenue from those very same oil companies. So the BSEE was set up solely to focus on safety. Except, as a NY Times profile made clear, when Scott Angelle took over, he seemed much more focused on using the position as a business opportunity for oil companies -- perhaps not surprising, given that Angelle had very close ties with the industry, including getting $1 million to sit on the board of a pipeline company. In the report, which talked about just how often Angelle seemed to be meeting with oil execs, it noted:

We've long talked about the more than 750 towns, cities, and counties that have responded to US broadband market failure by building their own broadband networks. We've also talked at length about how data has shown these networks often offer better service at lower, more transparent prices than their purely private sector counterparts (usually natural monopolies), whose apathy and political power has only grown in the wake of limited competition.We've also talked at great length about how instead of derailing these efforts by offering better, cheaper service (aka competition), industry giants like AT&T and Comcast have found a cheaper solution: they've quite literally paid state lawmakers to pass protectionist laws in dozens of states that ban or hinder towns and cities from even exploring the option. These bills are widely opposed by the public, but a new study says the phenomenon is growing all the same:

Early last year, news leaked out the French government was building its own encrypted messaging service. This seemed a bit disingenuous when this same government was routinely calling for backdoors in encryption for everyone else. The potential upside of the government rolling its own is that it would push government officials off third-party services and onto a platform where they might not be compromised along with everyone else if or when these privately-run platforms were hacked/backdoored.The problem with rolling your own encryption is it's a more daunting task than those asking for it imagine it will be, as Mike Masnick pointed out in last year's post.

A lot of bad stuff has been coming out of the EU lately, notably the awful Copyright Directive with its upload filters. So it makes a pleasant change to report on the passing of strong legislation to protect whistleblowers revealing breaches of EU law, a move which the Pirate MEP Julia Reda describes as "One of the greatest successes of this mandate!". Its scope is wide. Areas covered include public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, and -- of particular interest to Techdirt readers -- privacy, data protection and security of networks and information systems. Two key components of the new directive are "safe reporting channels" and "safeguards against retaliation", as the European Parliament's press release explains:

The news site TorrentFreak tends to get more false DMCA copyright notices than other sites, in part because of its name. It seems that people who don't bother investigating anything jump to the wrong conclusion that because it has "Torrent" in its name, it must be a "piracy" site, rather than a news site that reports on news about copyright and filesharing. So last week, TorrentFreak got some attention after Starz not only sent a bogus DMCA takedown over a TorrentFreak news article about leaked TV shows, but then started DMCAing anyone who even tweeted that Starz was abusing the DMCA this way. Starz eventually admitted it had made a mistake and issued a pretty lame apology.You might think that others in Hollywood would at least pay a little attention to this sort of thing -- but apparently not. This weekend TorrentFreak reported that yet another tweet of yet another of its stories was removed due to a copyright claim -- this time from Warner Bros. Just like last time, where Starz utilized an awful third party service (The Social Element) to handle these takedowns, this time Warner Bros employed a company called Marketly, one of a few such companies who claim they're in the "brand protection" business and go around issuing often dubious takedowns.

Of all the laws we discuss here at Techdirt, probably none comes up as often or in relation to as many things as Section 230 of the Communications Decency Act. It's not an exaggeration to describe it the way Professor Jeff Kosseff does in the title of his new book, The Twenty-Six Words That Created The Internet, offering a detailed history of this vital piece of law. This week, Jeff joins us on the podcast for an in-depth discussion about where Section 230 came from, and where it's going.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.

The DHS's airport panopticon is rolling out slowly, but surely. And of course it's being done with as little oversight or guidance as possible. Major international airports are already turning your face into your ID, giving travelers little option but to get their faces out if they don't want to receive extra questioning.If you're worried about adding your face to the government's extra-large bin o' biometrics, you're welcome to opt out. The easiest way to avoid this is to not travel at all, which is exactly what the DHS suggests. There are other options, but by the time you know they're available, you've likely already had your face scanned and matched against the DHS database by software known mostly for its failure rate.This happened to a JetBlue flier who noticed her face had been scanned and matched against… something… before she was able to board her international flight. She reached out to JetBlue via Twitter and got some not-very-enlightening answers and a couple of disturbing clarifications.

Apparently the new reality is that following any sort of attack, people will quickly rush in to blame the internet and social media. We've seen it in various forms in the past, but it really took off with the Christchurch shootings last month. And, with the horrific and tragic suicide bombings in Sri Lanka last week, it didn't take long for the same sort of thing to happen. Within hours after it happening, someone had jumped into a Twitter thread on content moderation to let me know that my views on content moderation were clearly invalid, given that the "failure" of social media companies to stop extremists in Sri Lanka was clearly to blame for the attacks. And, hours later, it was announced that the Sri Lankan government's response to the bombings was to cut off Facebook, Instagram and Whatsapp (all owned by Facebook). There was some confusion about this, with some people claiming they could still access Whatsapp, while others could not, and others saying that YouTube was also blocked.Either way, the government decided that social media was clearly part of the problem here. Sri Lanka has blocked these platforms in the past as well, claiming they were "spreading hate speeches and amplifying them" and last year there was a report that basically said Facebook had completely ignored how extremists used the platform in Sri Lanka. According to a NY Times report from last year:

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Yet another example of the awfulness of copyright filters. Back in 2006, librarian Michael Sauers posted a public domain film (a US government production) called "Your Life Work: The Librarian" to YouTube. If you don't know, "Your Life Work" was a series of educational shorts that, according to the Internet Archive, were "meant to inspire young post-depression workers into specific new careers." One of those careers? Librarian. Sauers' upload of the video has lived happily on YouTube for over 12 years until a few days ago when, if you visited it, you saw this instead:If you can't see that, it says that the video is unavailable, stating: "This video contains content from NBC Universal, who has blocked it in your country on copyright grounds."Now, that's obviously bullshit, because the video is in the public domain. So, what happened? Well, the takedown notice that Sauers received reveals what almost certainly happened:If you can't see that, it shows that the video taken down is entitled "Your Life Work: The Librarian." But the "copyrighted content" is listed as "The Public." If you don't know, "The Public" is a new movie written, directed and starring Emilio Estevez. The plot of the movie -- involving a group of homeless library patrons who refuse to leave a public library in Ohio during a bitter cold winter -- sounds interesting, and it appears this was a labor of love for Estevez, who worked on the film for the better part of a decade. He must have been thrilled back in January when Universal Pictures acquired the rights to the film.Earlier this month, the film got an actual theatrical release, and apparently Universal Pictures does what all the big Hollywood Studios do: upload all the content to YouTube's ContentID tool to make sure no one has offered up a pirated copy.There was just one problem. It appears that Estevez included a clip of "Your Life Work: The Librarian" within the movie (in which he, himself, plays a librarian). He, of course, is free to do so (thanks to the public domain), and having put that clip into his movie doesn't magically make that clip covered by copyright. But what the fuck does Universal Pictures care about pesky little things like the public domain and librarians' YouTube accounts? It's a big important Hollywood studio, and if it stomps out public domain material and ends up giving strikes to actual librarians, well, it's all good because it must "stop piracy."So, Universal doesn't bother making sure that the public domain parts are excised from what it gives ContentID, and ContentID identifies a match... and bye bye public domain material, and Sauers now faces having a copyright strike on his account. Sauers has said he's disputed the claim, but now he has to wait around and see if Universal comes to its senses and withdraws the claim, or decides to double down.Once again, this is why expecting automated filters to work is a real problem -- and it's doubly obnoxious that companies like Universal Pictures (and the MPAA that represents it) have been among the leading voices calling for more internet filters and things like "notice and staydown" which would effectively be used to block even more such content. Hopefully, Universal/YouTube restore Sauer's video soon, but it's just another example of how copyright is frequently used to take down perfectly legitimate speech.In the meantime, though, you can still see Your Life Work: The Librarian at the Internet Archive... at least until Universal Pictures goes after it as well.

If you hadn't noticed by now, the Trump administration has made blacklisting Chinese telecom companies one of its top priorities. That's been most notably exemplified by the administration's attacks on Huawei, which is repeatedly cited as an asset of the Chinese government without much in the way of proof. From pressuring U.S. carriers to drop plans to sell Huawei phones to the FCC's decision to ban companies from using Huawei gear if they want to receive federal subsidies, this effort hasn't been subtle. A harder, broader ban is supposedly looming in the wings.There's no doubt that Huawei, like AT&T here in the states, isn't a shining beacon of ethical behavior. At the same time, the dulcet undertones justifying much of the blacklisting is based on the premise that the company spies on Americans on a massive scale. Yet nobody has provided evidence of that. In the slightest. In fact, one 18-month investigation into Huawei in 2011 (the last time we had a similar epidemic of hand-wringing on this subject) found that there was no evidence supporting that claim. As in, at all:

In Australia, the government has automated traffic enforcement, letting the machines do the work. It's also automated the limited due process procedures, giving aggrieved citizens the chance to have their complaints and challenges ignored at scale, as The Newspaper reports.

Earlier this month, we were discussing the odd (read: stupid) campaign by a City Councilman for the City of Marathon in Florida to get his city to trademark the city seal. The whole thing was frustratingly stupid for all kinds of reasons. For starters, trademark law is very clear that municipal governments can't trademark their seals, full stop. Councilman Mark Senmartin wanted his own government to do something it couldn't legally do. Cool. The city seemed mostly unaware of this at the time, instead refusing to bow to Senmartin's demands since there had been virtually zero issues with people using the seal inappropriately elsewhere, with one minor issue during a local political campaign notwithstanding. And, to wrap the absurdity of it all in a nice little dumb bow, Senmartin proceeded to apply for the trademark himself and send his own city a cease and desist notice, apparently in an attempt to prove a point.That point appears not to have taken, however, as the City of Marathon has flicked the C&D off of its shoulders, having apparently educated itself on trademark law.

How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

It's getting a bit silly to have to keep pointing this out, but contrary to the popular narrative, there are tons of artists who not only recognize that the narrative that "piracy is the problem" is false, but many who recognize that piracy actually has its advantages. And, now, apparently, we can add esteemed film director Werner Herzog to that list. In an interview, he made it clear that when other options aren't readily available, he has no problem with people pirating his works:

Reverse warrants are the new regular warrants. Ever since law enforcement discovered most Americans carry tracking devices with them 24/7, they've been approaching cellphone providers with warrants targeting geographic areas rather than people.When a crime has been committed but cops don't have any suspects, they ask Google and others to canvass the area for them. Officers hand providers a geofence and ask for everyone who wandered into the selected area during a certain timeframe. Once cops have everyone, they start looking for someone.It seems weird but it's really not all that different than sending officers out to areas around crime scenes to ask anyone if they've seen anything. The difference here is cops are getting info about people's movements in an area when they're not suspected of any criminal activity. In addition, the areas covered by warrants often include high-traffic areas like businesses and multi-family housing, increasing the chance cops are going to zero in on the wrong suspect simply because someone lives or works near a crime scene.That's exactly what happened in Phoenix, Arizona. Detectives investigating a shooting handed a reverse warrant to Google. This data was used to arrest the wrong person, as Jennifer Valentino-DeVries reports for the New York Times.

For all the talk of how Twitter supposedly is banning conservatives left and right (it's not), the company is actually dealing with the impossibility of handling content moderation at scale. Adequately determining which content is "good" and which is "bad" is an impossible task.Let's take an example case, which -- at the very least -- should show that Twitter isn't just banning conservatives. The pseudonymous defense lawyer known as "bmaz" is probably known to many readers here. He's been a long-time co-author of the Empty Wheel blog with Marcy Wheeler. He's also a prolific and emotional tweeter. Sometimes I agree with him and sometimes I do not. When I do not, he doesn't shy away from letting me hear about it, often expressing his opinions strongly -- which is something I've always appreciated about bmaz. He may not be polite, but he's direct and doesn't hide his true feelings.And as of last week he was gone from Twitter. According to Scott Greenfield, bmaz has been "permanently" banned from Twitter. Why? Because he told a bunch of NRA supporters his general feelings towards their position, with two of them being "Own the death you piece of crap" and "You too are a fucking idiot asshole. As are your whole 62 followers. Fuck off."If you can't see that, it shows the two tweets quoted above (both directed at a short list of NRA spokespeople or supporters, as part of what appears to be an ongoing thread -- though there's no way to check that now). It also shows Twitter giving its reasons for cutting bmaz off.

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For years now, people who understand this stuff have been screaming from the rooftops that automated filtering leads to all sorts of legitimate content being taken down -- and yet, the EU went ahead and approved the EU Copyright Directive and its mandatory filters anyway (and, if you're still repeating the lie that it does not require filters, a quick reminder that multiple politicians who supported the Directive have now admitted that of course it requires filters, so don't even bother).And it didn't take long for a new example of why demanding filters for copyright purposes is incredibly stupid. Last Thursday, the DOJ finally released the redacted version of the Mueller Report. The document is obviously in the public domain as a work of the federal government -- and tons of publishers rushed to get book versions on store shelves as they do with every big government report, often turning them into best sellers, despite their availability for free.Among the many places that the digital version of the report was made available was Scribd, the sort of Youtube-for-PDFs that remains annoying but very popular. And what happened? Well, of course, Scribd took the report down claiming it violated someone's copyright.

"A series of lawsuits," the court calls it. This is the ongoing work of 1-800-LAW-FIRM and Excolo Law -- two firms that specialize in bringing losing lawsuits to federal courts. It's a series of lawsuits and a series of losses. An unbroken string of dismissals at both the district and appellate levels -- all in response to the firms' attempts to hold social media companies responsible for the acts of terrorists.Mandy Palmucci -- a victim of the terrorist attacks in Paris, France -- filed an incredibly long lawsuit (121 pages!) last year with the assistance of these two law firms. She needn't have bothered. This one joins the pile of rejected complaints passing through the federal court system. (h/t John Roddy)The only thing notable about this latest loss is how irritated Judge William H. Orrick seems to be with these lawsuits that keep landing in his court. Handling one of these lawsuits twice appears to have dug deep into Judge Orrick's reserves of patience. From the decision [PDF]:

The NYPD, that paragon of opacity, screwed up. And now it wants its stuff back.The Georgetown Center on Privacy & Technology has been engaged in a public records lawsuit against the NYPD since 2017. It's seeking records on the department's use of facial recognition technology. The NYPD has fought hard, but has been forced to hand over almost 3,700 pages of relevant info to date. This after initially telling the Center it had "no responsive documents."Contained in the steady drip of documents handed over to the Center was something the NYPD wasn't supposed to release in unredacted form. It took almost a month for the department to realize it had screwed up. Rather than let uncensored bygones be bygones, the NYPD took it up with the judge presiding over the case. The NYPD's legal rep wasn't too thrilled with the department's inadvertent transparency.

This week, both our winners on the insightful side come in response to our post about Zoe Keating's detailed look at the problems with last year's Music Modernization Act and its impact on independent musicians. In first place, it's Rico R. highlighting how little many musicians even knew about what was happening:

Five Years AgoThis week in 2014, the world was dealing with the Heartbleed bug and turning its attention to the NSA's possible awareness of it — leading Obama to tell them to start revealing flaws but with no particular incentive to actually do so. It wasn't clear if the NSA had definitely known about and used Heartbleed, but there was nothing stopping them and people certainly weren't going to take their advice on dealing with it. Overall, the simple truth was that the government pays to undermine, not fix internet security. Meanwhile, the Guardian and the Washington Post won Pulitzers for their coverage of the Snowden leaks, which made a lot of folks angry including Rep. Peter King and CIA torture authorizer John Yoo.Ten Years AgoThis week in 2009, the BSA was using the spate of stories about Somali pirates to talk about software piracy in a stunningly tonedeaf fashion, NBC was crafting its plans to make Olympic coverage worse and more expensive, the Associated Press was admitting its attack on aggregators looks stupid to the "untrained eye" while failing to explain why it shouldn't look stupid to everyone else too, and a hilarious but frightening warrant application got a college student's computer seized in part for using "a black screen with white font which he uses prompt commands on". DMCA abuse was chugging along as usual, with an activist group using it to hide exposure of its astroturfing and a news station using it to cover up video of it embarrassingly falling for an April Fool's story. And long before the Snowden revelations, not only were we already seeing revelations about the NSA's abuse of power, we were already unsurprised.Fifteen Years AgoThis week in 2004, the internet was still beginning to embrace some of the innovations that define it today: location-based services were on the rise, with Google launching localized ads and mobile phone navigation systems threatening to oust expensive dedicated hardware (something also happening in other areas like event ticket handling), and more and more people were going online wirelessly in one way or another. Of course, along with this was the rise of some more problematic trends too, like patent hoarding houses and DRM. In California, the first two arrests were made under a new law banning all kinds of video cameras in movie theaters, while one state senator was seeking to completely ban Gmail (which was still new) for some reason — though at least the legislature shot down another ban on violent video game sales to minors.

This year seems to be the year in which governments all over the globe really, really want to regulate the internet. And they're doing a ridiculously dumb job of it. We've talked a lot about the EU, with the Copyright Directive and now the Terrorist Content Regulation. And then there's Australia with its anti-encryption law and its "abhorrent content" law. India has already passed a few bad laws regarding the internet and is discussing a few more. Then there's the UK, Germany, South Korea, Singapore, Thailand, Cameroon, etc. etc. etc. You get the idea.Oh, and certainly, the US is considering some really bad ideas as well.When you look at what "problem" all of these laws are trying to solve, it can basically be boiled down to "people do bad things on the internet, and we need to regulate the internet because of it." This is problematic to me for a variety of reasons, in part because it seems to be regulating the wrong party. We should, ideally, be going after the people doing the bad things, rather than the tools and services they are using to do the bad things (or to merely promote the bad things they're doing). However, there is an argument -- not one that I wholly buy into -- that one reasonable way to regulate is to focus less on which party is actually doing the bad thing, and more on which party is best positioned to minimize the harm of the bad thing. And it's that theory of regulation (applied stupidly) that is behind much of the regulatory theory on the internet these days.Well, there's also a second theory behind many of the regulatory approaches, and it's "Google and Facebook are big and bad, so anything that punishes them is good regulation". This makes even less sense to me than the other approach, but it is certainly driving a lot of the thinking, at least in the EU (and possibly the US).Combine those two driving theories for regulating the internet and you've got a pretty big mess. They seem to be taking a sledge hammer to huge parts of the internet, rather than looking for narrow, targeted approaches. And, on top of that, in focusing so much on Google and Facebook, so many of these laws are written solely with those two platforms in mind, and with no thought to how it impacts every other internet company, many of which operate on a very different basis.Earlier this year, I wrote up my thoughts on what sort of regulatory approach would really "break up" big tech while preserving an open internet, but it's an approach that would require a very big shift in mindsets (one I'm still hoping will occur).However, Ben Thompson has taken a much more practical approach to thinking through regulating the internet. He, like me, is skeptical of most of these attempts to regulate the internet, but recognizing that it's absolutely going to happen no matter how skeptical we are, he is proposing a framework for thinking about regulating the internet, in a way that would (hopefully) minimize the worst outcomes from the approaches being used today.You should read the whole thing to understand the thinking, the background, and the approach, but the key aspects to Thompson's framework are to recognize that there are different kinds of internet companies -- and that's true not just up and down the stack, but across the different kinds of services. So his hope is that if the regulatory approaches were more narrowly targeted to a manner in which they fit better we'd have a lot less collateral damage in trying to shove a square regulatory approach through a round internet service.Another key to his approach is a more modern update to the common "free as in speech v. free as in beer" concept that everyone in the open source world is familiar with. Ben talks about a third option that has been discussed for decades, which is "free as in puppy" -- meaning something that you get for free, but which then has an ongoing cost in terms of maintaining the free thing you got.

In 2017, FCC head Ajit Pai came under fire for filling a new "Broadband Deployment Advisory Council" (BDAC) task force with oodles of industry representatives, but few if any consumer representatives or local town or city officials. Not too surprisingly the panel saw a significant amount of controversy, several protest resignations, and the arrest of a one-time panel chair for fraud, but the panel itself never actually accomplished much of anything to address the problem it was created for.Fast forward to last week, and the FCC has once again found itself under fire for appointing a member of the The American Legislative Exchange Council (ALEC) to the agency's "consumer advisory" panel:

Another one of 1-800-LAW-FIRM's lawsuits has been tossed for a second time. After being shut down at the district level for attempting to hold social media companies responsible for the Pulse nightclub shooting in Orlando, Florida, the law firm asked the Sixth Circuit Court of Appeals to take another look at its dubious legal theories.The Appeals Court has taken another look and it doesn't like what it sees any more than the district court did. The violent act committed inside the nightclub was horrible, but the court cannot provide a remedy for every wrong -- especially not in a case where the plaintiffs are trying to hold a third party responsible for violent acts they neither encouraged nor committed.Social media platforms may make it easier for terrorists to spread their message, but that does not add up to material support for terrorism. That's the legal theory 1-800-LAW-FIRM and Excolo Law have been using to push these lawsuits in order to dodge the obvious Section 230 implications. It has yet to find support in any court. It doesn't find any here either. From the decision [PDF]:

A quick followup to yesterday's post about officials in Peachtree, Georgia looking to pass a resolution that would allow city officials to spend taxpayer money to sue their own critics for defamation. There were all sorts of problems with this... and it appears the taxpayers weren't happy. At the city council meeting last night, lots of those taxpayers made it clear this was a bad idea:

I know that some will argue that "every week" is a bad week for Facebook with regards to privacy, but this week in particular is looking especially awful, with (last I checked!) three "big" stories regarding the company's bad decisions and handling regarding data. Of course, because this is Facebook, I still think the reporting is getting the story a bit wrong. The story that has gotten the most attention is the least concerning, while the ones getting less attention are the real problems.First up is the NBC News story going through a big pile of leaked internal documents from its ongoing lawsuit with app developer Six4Three. If you don't recall, the company, which made a skeezy app to let you find pictures of other people on Facebook wearing bikinis, got mad and sued Facebook when Facebook (finally) realized that maybe it shouldn't give app developers access to so much data, and cut them all off (effectively killing Six4Three's entire ability to operate). Many people reacted to this week's story as if it was some big reveal that Facebook cut favorable data deals with some partners, and that it toyed around with business models selling access to data, but frankly, I don't see all that much that's different from the cache of documents that was released back in December.As I said then, most of the stuff that people are freaking out about appears to be taken out of context. Facebook investigating different business models isn't inherently bad. And many people are framing those discussions completely outside of the context of what Facebook was actually doing at the time or how people viewed the data it had access to. A lot of focus is on the fact that Facebook put a dollar value on the data -- but that doesn't actually mean (as many are suggesting) that it ever planned to "sell the data." It did look at charging app developers to access the data, but that's not a particularly crazy idea -- and one that lots of people discussed at the time, and one that plenty of companies with lots of data use.There are, certainly, reasonable concerns to be raised about Facebook looking to deliberately undermine competitive services via its platform -- and that was the part that most concerned me back in December as possible antitrust violations. But, there doesn't really appear to be that much new on that front. Facebook looks sketchy, but when hasn't it looked sketchy?And, because some will erroneously call me a Facebook shill, let's look at the other two privacy blunders this week because there's nothing redeeming about either of them. Both are straight up awful. They're the kinds of security mistakes that tiny startups with no real understanding of security make. Not something that a company like Facebook should ever make. If you want to be concerned about Facebook and privacy, focus on these two stories that suggest not so much a cavalier attitude towards privacy as an incompetent implementation of basic security practices.First up, Business Insider revealed that Facebook was asking users for their email password and then sucking up all your contacts without asking for permission. While you might wonder what idiot would hand Facebook his or her email password for no obvious reason (a valid question) that doesn't absolve Facebook from even asking. After pressing Facebook on this, the company admitted that it sucked up the email contacts of 1.5 million users this way, and that it's now deleting it.

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Back in 2011 DOJ regulators blocked AT&T from acquiring T-Mobile, arguing that that the deal would have harmed consumers and resulted in higher rates by eliminating one of just four major wireless players. That's a pretty easy argument to make, given every time a country allows four wireless carriers to morph into three, the sector gets less competitive and prices go up (see: Ireland or Canada). Blocking the deal wound up being a good thing: T-Mobile went on to be even more disruptive, and has helped introduce a number of consumer-friendly market shifts like cheaper international roaming and the death of long-term contracts.In 2014 T-Mobile and Sprint tried to merge, and regulators (quite correctly) pointed out the deal wouldn't be good for consumers or the market, and blocked it from happening.Fast forward to 2019, and T-Mobile is once again trying to merge with Sprint, hoping to take advantage of the Trump era to finally overcome regulatory scrutiny. Both companies have been telling everyone who'll listen that reducing the total number of competitors will somehow boost competition in the sector. Not too surprisingly, even in this era of blind telecom sector fealty, regulators are having a hard time swallowing this particular pill. Both Reuters and the Wall Street Journal cite DOJ insiders who say that the DOJ isn't likely to approve the deal in its current form:

The First Amendment is getting no help from the nation's highest court. Yet again, the Supreme Court is declining an opportunity to answer a very important question about free speech: where is the dividing line between threats and violent -- but protected -- speech?The Supreme Court already punted on this issue in 2015 with the Elonis v. United States case. In that case, Anthony Elonis posted a bunch of nasty stuff online about his ex-wife. He ended up being jailed for these, with the court finding his posts -- which he claimed were merely him venting in the form of ultraviolent rap lyrics -- constituted threats.His appeal went all the way to the top but the Supreme Court had nothing for him. It did overturn his conviction, but it left the First Amendment question unanswered. The Supreme Court said the trial court adhered to the wrong negligence standard -- one that said Elonis should have known his posts were threatening if any "reasonable person" would find them threatening. The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal (i.e., that they were "genuine threats") when he posted them.As for the First Amendment, the Supreme Court seemed happy to avoid this issue completely. Having decided the wrong standard was used by the trial court, the Supreme Court declared it did not need to hand down an opinion on the First Amendment implications, leading to the mess we're in now, with lower courts drawing disparate conclusions about the line between threats and protected speech.The mess will continue. Pittsburgh rap artist Jamal Knox was jailed for the lyrics of his song "Fuck the Police." An obvious tribute to the 1988 N.W.A. track, Knox's song included the names of two officers that had previously arrested him and some very descriptive violent acts involving them.

Undaunted by the fact that internet filters never actually seem to work, the UK continues its quest to censor the internet of all of its naughty bits.The UK has long implemented porn filters in a bid to restrict anybody under the age of 18 from accessing such content. New age verification controls were also mandated as part of the Digital Economy Act of 2017. But as we've previously noted, the UK government has seen several fits and starts with its proposal as it desperately tries to convince the public and business sectors that the ham-fisted effort is going to actually work. This week the country formally announced that its filter proposal officially now has a start date: July 15.According to the UK government, websites that fail to comply with the country's age verification program face fines up to £250,000, risk being taken offline, or may lose access to payment services:

We've not been shy about pointing out that the recent practice by famous athletes of trademarking their nicknames all seems somewhat silly. The whole thing smacks of some combination of a money-grab over terms often not coined by the athletes themselves, and the kind of protectionism by the famous that is just all the rage these days. A recent incidence of this concerning the trademark application for Luka Doncic's nickname carried with it a twist, however, in that the applicant was not by Doncic himself, but by the Dallas Mavericks, the team for which he plays. The thrust of our post on the matter was roughly: well, that seems kind of shitty. After all, NBA players tend not to play for the same teams forever, though it's worth pointing out that the Mavericks pulled this off with Dirk Nowitzki, so there's that. Still, should Doncic move to another team, what happens to that trademark on his nickname?Mark Cuban appeared to show up in the comments.

Recently, the Greene County (TN) Sheriff's Department spent the day being owned on Twitter. It wasn't necessarily the sheriff's fault. The Tennessee Dept. of General Services decided to show off the Sheriff's armored vehicle, obtained via the Defense Department's 1033 program. This program allows agencies like the GCSD to obtain military equipment so they can ensure the safety of [checks census figures] the 68,000 residents of Greene County.This is the tweet from the Department of General Services that became the landmine under the Sheriff's Department's MRAP's wheels:

What is it with the state of Georgia and its attempts to stifle free speech and a free press? It's the state that argues its official copy of the law is covered by copyright and cannot be posted online. The same state that is currently trying to regulate journalism by creating "ethical standards" they have to follow. The same state that is so bad in responding to public records law that an official was actually criminally charged for it?The latest, as sent in by a few people, is that tonight, Peachtree City, a suburb of Atlanta, is voting on a laughably obviously unconstitutional provision that would allow city officials to file bogus SLAPP suits, using taxpayer funds, against critics. Really. Specifically, the proposal says that the city will provide "coverage for legal expenses when a City official has been defamed in a public media outlet or otherwise slandered or libeled to the public..." It does note that the defamation must be a "valid claim for defamation... under Georgia law." So, one might argue that filing a bogus SLAPP suit wouldn't be covered by this policy -- but it's unclear how that will work.We see bogus defamation lawsuits filed all the time to censor critics, and as a public official, the bar to a successful defamation lawsuit is (for very good reasons) quite high. So, under this proposal, will the city officials have to pay back the city treasury if such a case is tossed out? One would hope that's the case, but the text of the proposal has no language to that effect. The only language is has regarding reimbursement is that if the lawsuit is "settled in the City's favor, the City shall seek reimbursement for the actual legal costs incurred in successful pursuit of the defamation ruling by the person or persons committing the defamation."It has no provision for what happens when it turns out there wasn't defamation and the city just wasted taxpayer funds suing critics who didn't actually defame anyone.It is already dubious that any public official should ever be suing critics -- but to have taxpayers have to foot the bill for SLAPP suits is both deeply obnoxious and unconstitutional, that it seems perfect for Georgia.The city manager, Jon Rorie, is quoted in a few different articles about this, basically making the same extraordinarily bad point

The U.S. House Judiciary Committee held a hearing last week to discuss the spread of white nationalism, online and offline. The hearing tackled hard questions about how online platforms respond to extremism online and what role, if any, lawmakers should play. The desire for more aggressive moderation policies in the face of horrifying crimes is understandable, particularly in the wake of the recent massacre in New Zealand. But unfortunately, looking to Silicon Valley to be the speech police may do more harm than good.When considering measures to discourage or filter out unwanted activity, platforms must consider how those mechanisms might be abused by bad actors. Similarly, when Congress considers regulating speech on online platforms, it must consider both the First Amendment implications and how its regulations might unintentionally encourage platforms to silence innocent people.Again and again, we’ve seen attempts to more aggressively stamp out hate and extremism online backfire in colossal ways. We’ve seen state actors abuse flagging systems in order to silence their political enemies. We’ve seen platforms inadvertently censor the work of journalists and activists attempting to document human rights atrocities.But there’s a lot platforms can do right now, starting with more transparency and visibility into platforms’ moderation policies. Platforms ought to tell the public what types of unwanted content they are attempting to screen, how they do that screening, and what safeguards are in place to make sure that innocent people—especially those trying to document or respond to violence—aren’t also censored. Rep. Pramila Jayapal urged the witnesses from Google and Facebook to share not just better reports of content removals, but also internal policies and training materials for moderators.Better transparency is not only crucial for helping to minimize the number of people silenced unintentionally; it’s also essential for those working to study and fight hate groups. As the Anti-Defamation League’s Eileen Hershenov noted:

We've talked a lot over the years about the importance of Section 230 of the Communications Decency Act (CDA) in helping to create and enable the internet and all of the free speech on the internet. Expect us to continue to talk about it as it is increasingly under attack. Professor Eric Goldman has now released a short, and very worth reading, paper about Section 230, with the provocative title: Why Section 230 Is Better Than the First Amendment. The importance here is that many have argued that CDA 230 and the 1st Amendment go hand in hand. At times, in the past, I've argued that in a reasonable world we shouldn't even need a CDA 230, because the proper application of liability should obviously be with the person posting the law-breaking content, rather than the platform hosting it. But, that was clearly talking about in an idealistic world that does not exist. Given the frequency of lots of people -- plaintiffs, journalists, politicians, and more -- going after platforms for actions of their users, CDA 230's broad immunity is absolutely necessary if we're to have free speech online. Goldman's paper makes this clear:

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Former FBI director James Comey's move to the private sector has been… well… annoying, if we're honest. After being booted by President Trump for allegedly failing to pledge his fealty to the Oval Office throne, Comey has become a hero of the so-called Resistance. Those lionizing Comey as some sort of truth-to-power speaker seem to have forgotten he ignored everything ever about pre-election propriety to announce his reopening of the investigation into Hillary Clinton's private email server, and his years spent trying to undermine encryption.You can take a man out of the FBI, but you can't take the g-man out of the man. Comey may be as unimpressed as many of us are with the current White House leadership, but that only makes him somewhat relatable, not some hero molded from the fires of the long tradition of reshuffling agency leadership with every peaceful transfer of power.Comey will speak to whoever will listen and/or publish his thoughts. He recently spoke at a conference and offered up his limited apologies for the War on Encryption he waged following the San Bernardino shooting.As apologies go, it isn't one. Comey says the only error he made was being a bit too aggressive when seeking to undermine the security of millions of device users. (h/t Riana Pfefferkorn)

The late 2017 DOJ announcement that it would be suing to stop AT&T's $86 billion merger with Time Warner turned more than a few heads. While the DOJ insisted that the move was driven entirely by an interest in protecting consumers, the decision was utterly discordant with the Trump administration's often facts-optional assault on consumer protections that have bipartisan support, ranging from net neutrality to basic environmental protections. And the DOJ's sudden concern about the impact of media consolidation was in stark contrast to Trump's FCC, where demolishing decades-old media consolidation rules has been a top priority.At the time of the lawsuit, many wondered if some other motivations were really at play. After all, Rupert Murdoch had been pushing Trump for more than a year to scuttle the deal for anti-competitive reasons. Time Warner rejected a News Corp. acquisition offer in 2014, and more recently AT&T rebuffed the company's attempt to buy CNN... twice. Time Warner employees quoted at the time believed Murdoch was the driving motivation for the political pressure to quash the deal:

Okay, let's start with this even higher up this time:

Way back in late 2016, we asked the same question that has been on the minds of all of humanity for eons: who gets to trademark Iceland? If that seems like an odd question to you, perhaps a little context will help. See, Iceland has been a sovereign nation since the early 1900s, whereas Iceland Foods has been a grocery chain in the UK since the 1970s. And, yet, somehow the latter managed to get an EU-wide trademark for the term "Iceland" and then went around bullying companies from Iceland out of using that term in their own names, even when they weren't competing in the grocery marketplace. How did the EU manage to think it would be okay to grant this trademark in the first place, you ask? By not putting a whole lot of thought into it, would be my guess.Well, when Iceland, the country, applied for a trademark for "Inspired by Iceland", only to have it blocked by Iceland Foods, it apparently represented the last straw. Iceland petitioned the EU to invalidate this absurd trademark, leading to reps from Iceland Foods trekking to meet with the nation's officials. The outcome of that meeting was apparently Iceland Foods being totally confused as to why Iceland wasn't just being cool, maaaaan.Well, this story has finally reached its conclusion, and that conclusion is the EU reversing its original error and invalidating the trademark.