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The internet has upended journalism. It's no longer limited to long-established press outlets known for printing physical newspapers and periodicals. It can be performed by anyone, using a vast amount of resources, including search engines, public records requests, and the occasional application of shoe leather.The First Amendment provides protection to these endeavors. Except when it doesn't. Well-meaning legislators seeking to protect journalists use older definitions of journalism to exclude bloggers and freelancers. Some judges make the same mistake as well, deciding the word "journalist" only covers people trafficking in ink and paper, rather than bits and pixels.This older definition was in play in a recent decision handed down by a Nevada judge. Rather than recognize that the intent of Nevada's shield law is to protect journalists, Judge James Wilson decided the law only protects a narrow subset of those practicing the art of journalism.

Earlier today we wrote about the terrible vote by the EU Parliament to approve the Copyright Directive including the dangerous Articles 11 and 13. As we noted in the original post, the key vote was whether to allow amendments that could have deleted those two articles. That vote failed by just five votes, 317 to 312. Unfortunately, soon after the vote was finalized, a few of the MEPs who voted against the plan for amendments -- Peter Lundgren and Kristina Winberg -- said they voted incorrectly and meant to vote for the amendments in order to get rid of Articles 11 and 13. Apparently, someone changed the vote order which threw them off:

We've been covering surveillance and the intelligence community for a long time here at Techdirt, but if you had to limit yourself to just one source on the subject, even we'd probably recommend you choose Marcy Wheeler. Following the recent news that the NSA has apparently shut down its bulk records collection program — the first exposed by Edward Snowden — Marcy joins us on this week's episode to discuss the surveillance state and why it might abandon Section 215.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 RIAA's war to force internet access providers to become copyright cops has continued to move forward. The RIAA planned this strategy out years ago, in the wake of losing the SOPA fight. Back in 2012 we wrote about an internal plan to try to convince courts that Section 512(i) of the DMCA actually mean that ISPs had to completely kick users off the internet based solely on accusations of infringement. The end goal here is, as always with the RIAA, to get everyone else to try to police the internet.Part of the issue here is the incredibly inartful drafting of the DMCA, that has lead to multiple lawsuits over how conflicting aspects of the law should be interpreted. The results over the last decade or so of cases tend to have the courts simply deciding in favor of the more sympathetic party, rather than with any consistency as to the law itself. So, in the Viacom/YouTube case, the court required "actual knowledge" rather than the "general knowledge" that Viacom sought. Yet, in the IsoHunt case (unsympathetic defendant), the court found "red flag" knowledge to be enough. In the first case testing the RIAA's theories on 512(i) and ISPs, against Cox, the RIAA won, but mainly due to Cox's own bad behavior (specifically: internal employees mocked and did not follow the company's own repeat infringer policy).In the second case testing this theory, against Grande Communications, as was widely expected given an earlier magistrate judge's opinion, the court has said that Grande does not qualify for the DMCA's safe harbors, and therefore may be liable for infringement on its network. Once again, as with Cox, Grande's own actions appeared to doom its argument for safe harbors. The company admitted that it didn't actually have a repeat infringer policy. It had a stated one, but no effort was made to follow it internally -- and since 512(i) requires a "reasonably implemented" policy, the lack of any plan to implement it means... no safe harbors. As we noted when the magistrate judge recommended this finding, this does not mean that Grande automatically loses the case. The RIAA still will need to prove contributory infringement on the part of Grande, which might not be that easy since it will have to show that Grande actively induced people to infringe (as per the Supreme Court's standard in the Grokster case).Either way, the RIAA is not waiting around and has moved on to an even bigger target: It is now suing Charter Communications on the same basic theory concerning 512(i). The record labels make some fairly bold claims about Charter in the case:

Just because you can doesn't mean you should. Debra Cruise-Gulyas received an "impeding traffic" ticket from Officer Matthew Minard. To show her appreciation for his fine policework, Cruise-Gulyas shot him the bird as she rolled away. Not the best idea but, as the district court declared, a perfectly legal hand gesture.The adage opening this post also goes for cops. Officer Matthew Minard decided the hand gesture warranted another traffic stop. Sure, he had the power to initiate a traffic stop. The problem was he didn't have any legal reason to do so. As the court noted, the infraction (speeding) Minard had only issued a warning for nevertheless completed the traffic stop. Pulling Cruise-Gulyas over again for the infraction he had chosen not to enforce to its fullest extent could not be used a probable cause for a second stop when Cruise-Gulyas was flipping the bird at a legal rate of speed.Minard appealed. The Sixth Circuit Court of Appeals [PDF] says the lower court had it right the first time. Officer Minard had no legal reason to effect a second stop.

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According to new analysis by Kaspersky Lab, nearly a million PC and laptop owners may have installed a malicious ASUS software update that embedded a backdoor into their computers without their knowledge. According to the security firm, state-sponsored hackers (presumed to be China) managed to subvert the company's Live Update utility, which is pre-installed on most ASUS computers and is used to automatically update system components such as BIOS, UEFI, drivers and applications.The malicious file was signed by a legitimate ASUS digital certificate to hide the fact that it wasn't a legitimate software update from the company, with an eye on a very particular target range:

Well, it was a nice run while it lasted, but the EU Parliament has just put an end to the open internet. By the incredibly thin margin of just five votes, the Parliament voted against any amendments to the proposal -- which was a necessary step to fixing or deleting Articles 11 and 13. After that, they voted to approve the EU Copyright Directive, including the terrible versions of both Article 11 and 13. This is an inauspicious day and one that the EU will almost certainly come to regret. While we now need to see how each of the member states will implement the actual laws put forth in the Directive (meaning the damage in some states may be more mitigatable than in others), on the whole the EU Copyright Directive requires laws that effectively end the open internet as an open communications medium. Sites that previously allowed content creators to freely publish content will now be forced to make impossible choices: license all content (which is literally impossible), filter all content (expensive and failure-prone), or shut down. Sites that used to send traffic to news sources may now need to reconsider, as doing so will inexplicably require payment.At best, the EU--for all its complaints about Google and Facebook--has just locked both companies into a dominant position. They can afford this. Others cannot. And, the legacy gatekeepers in the media and entertainment business will quickly pivot to seeking to export this model elsewhere.The MEPs who voted for this are up for election in two months, and hopefully the EU shows them the door, but in the meantime, today is a sad day for the open internet. I am sure that some will be celebrating on the false belief that this will magically "help artists." It will not. You just handed more power to giant companies, and took it away from creators. In time, one hopes, those who mocked the protesters and activists and actual experts will come to realize just how much they destroyed today.

Following the recent mass shooting in New Zealand, the county's government swiftly declared the live footage of the attack, along with the shooter's manifesto, "objectionable." This classification is more than a condemnation: it made both illegal to possess or distribute. Thanks to this response, New Zealand law enforcement is now rounding up and charging anyone who violates this post-tragedy decision to make newsworthy content the legal equivalent of child porn.The first reported arrest occurred March 17th, two days after the shooter livestreamed his attack on local mosques.

As MEPs get ready to vote on the EU Copyright Directive -- and specific amendments concerning Articles 11 and 13 -- many have not yet said how they are going to vote. However, two Swedish MEPs, Jytte Guteland and Marita Ulvskog, who many had believed would vote against the plan, have suddenly switched sides and say they plan to vote for it. In a rather astounding interview with reporter Emanuel Karlsten the MEPs reveal their near total ignorance of what Article 13 does and what it would require.Guteland spoke to Karlsten by phone, and he asked all the right questions. It's worth reading the entire conversation, but here are a few snippets with my commentary. When Karlsten pointed out the problems with filters, Guteland insisted that Article 13 doesn't mean filters:

In the hours leading up to the vote in the EU Parliament on the EU Copyright Directive, the German publication FAZ (which has been generally supportive of the Directive) has released quite a bombshell (in German), suggesting that the reason Germany caved to France on its terrible demands concerning copyright was in order to get France's approval of the controversial Nord Stream 2 gas pipeline from Russia.If you don't recall, the German delegation had actually pushed back on the more extreme versions of Article 13 -- and, in particular, had demanded that a final version have a clear carve-out for smaller companies, so as not to have them forced out of business by the onerous demands of the law. However, after some back and forth, Germany caved in to France's demands, with many left scratching their heads as to why. However, some noted the "coincidence" in timing, that right after this, France also withdrew its objections to the pipeline which is very controversial in the EU (and the US, which is threatening sanctions).FAZ notes that there were whispered rumors about Germany and France basically trading these two proposals, with Germany effectively selling out the open public internet in exchange for easier access to Russian gas. However, it has now seen documents that support this claim. Germany's economic minister, Peter Altmaier apparently promised startups that Germany would not cave on its promise to create a carve-out for all companies with less than 20 million euros in revenue per year -- only to drop that demand the very next day.According to FAZ, the French delegation directly suggested the idea of France backing away from its opposition to the Nord Stream 2 pipeline if Germany backed away from its concerns about Article 13. And, voila, within days, Germany gave up on its demands regarding Article 13 and, a few days later, France switched sides and agreed to support the pipeline. So, as the German MEPs go to the polls tomorrow, we'll see if they think it was a fair deal to sell out the public internet in exchange for some Russian gas.

California law enforcement's losing streak continues. Since the new state law went into effect at the beginning of the year, California police unions have been battling the new transparency, claiming the public records law does not apply to historical records of police misconduct or use of force.So far, the unions are finding no one who agrees with them. The law's author says the law is retroactive. So have a couple of state courts. The only person siding with unions on the retroactivity issue is the state's top cop, Attorney General Xavier Becerra.The state's Supreme Court has turned down two requests by law enforcement unions to step in and clear up the retroactivity question. In both cases, it rejected the petition without comment. Now, a second state appellate court has refused to review a lower level decision finding the state's new law applies to old misconduct records.

You may or may not remember that FCC boss Ajit Pai promised to operate the "most transparent" FCC ever. Initially, Pai lived up to that promise by changing FCC policy so that FCC orders would be released before they were voted on; a pretty obvious improvement of benefit to both consumers and ISP lobbyists alike. But in the year or two since, Pai has shown that genuine transparency is the very least of the chairman's priorities.For example, Pai's FCC has actively refused to aid law enforcement inquiries into who was behind the millions of bogus comments that polluted the net neutrality repeal public comment period. Similarly, the Pai FCC's general response to FOIA requests has been to stall, delay, and ignore said requests whenever possible, resulting in numerous lawsuits by media outlets attempting to get to the bottom of all manner of bizarre FCC policy decisions (like that fake DDOS attack emails show they made up to try and downplay public anger over the net neutrality repeal).One of those lawsuits was filed by journalist Jason Prechtel, whose analysis recently helped shed some light on the telecom and Trump-linked organizations who stuffed the FCC ballot box during the net neutrality public comment period -- in some cases using stolen identities. The Pai FCC repeatedly ignored or stalled in response to Prechtel's FOIA requests regarding this data, so he sued the agency back in 2017. Last week, a court ruled that the FCC (read: taxpayers) will be forced to reimburse Prechtel's legal costs to the tune of $43,000.As Gizmodo notes, it was probably money well spent if integrity and transparency actually matter to you:

Indiana law enforcement has apparently figured out a solution to the school shooting problem: round up the teachers and shoot them. Here's a jolly little anecdote from the Indiana State Teachers Association, detailing an issue brought up during a recent state Senate education committee meeting.

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In a bid to modernize its reputation as one of the least liked industries in America, the cable industry has a novel solution: to stop calling itself the cable industry. The industry's biggest lobbying and trade organization, the National Cable & Telecommunications Association, first got the ball rolling in 2016 when it renamed itself the The Internet & Television Association. Despite the lion's share of its last mile still being on coaxial cable, the industry apparently hoped that eliminating "cable" from its name would somehow modernize the sector for the fiber era.Not to be outdone, the American Cable Association, the policy and lobbying arm of over 750 smaller and mid-sized cable companies, has followed suit. It announced last week it too would be dropping the word cable from its name, and will now be called America’s Communications Association. Organization boss Matt Polka put it this way:

As the EU Parliament gets ready to vote on the EU Copyright Directive and Articles 11 and 13, the desperation from the supporters of these laws is reaching a fever pitch. It's gotten to the point that their own arguments no longer make any sense and are totally inconsistent with what they've been saying for months. Late last week, a new group sprung up with a website called Manifesto4copyright.eu. It is an astounding document in so many ways, not the least of which is it admits that Article 13 is about filters, while also admitting that filters don't work.It starts off with a huge misrepresentation: that the authors supporting it are for an "open and fair internet without censorship." Except that's belied by the rest of the "manifesto," which makes about as much sense as any other ranting internet manifesto:

As expected, people took to the streets in the EU this week to protest the EU Copyright Directive, the censorship filters of Article 13, and the snippet tax in Article 11. Most of the protests took place in Germany, where reports are that over 150,000 protesters showed up to let their elected officials know that this law is a disaster (other reports put the number closer to 200,000 protesters).Indeed, things got so crazy, that the Berlin police announced that there were way more people than expected, and protesters needed to change their planned route to roads that could better accommodate such a large crowd.Many of the signs included memes, or the statement "we are not bots," which appears to have confused some in the media, such as DW.com, which claimed people said: "banners included the phrase "We are not bots," a reference to robotic-like social media posts." Uh, no. The reference to "we are not bots" is in direct response to supporters of Article 13 lying and claiming that all of the arguments against Article 13 were simply coming from internet bots as a way to discount the concerns of millions of EU residents as well as those of us around the world.Of course, what happens when the politicians who insisted it was "just bots" arguing against Article 13 have to contend with the fact that at least 150,000 real live humans showed up on their doorstep to protest? They just keep lying. German MEP Daniel Caspary, who chairs the large CDU/CSU group in the EU Parliament told a German publication a completely made up lie -- reminiscent of the kind of "fake news" propaganda that has been used elsewhere, that all of the protesters were actually paid to be there. He literally called them "bought protesters" and said that a non-profit organization offered protesters €450 to show up at the protest. And then insisted that this was all a threat to democracy (per the translation):

We've got a double-winner this week with one comment taking first place for insightful and second place for funny. Even more unusually, it's from fairly deep into a thread, and most of its meaning relies on that context — but nevertheless, Thad racked up the votes with a response to someone who claimed to have strong evidence of conservative censorship on social media:

Last week, we looked at one of the two titles that tied for the Best Visuals category in our public domain game jam, Gaming Like It's 1923. This week, we're shining the spotlight on the other winner in that category: The Garden of Godby DreadRoach.As I mentioned last week, any game made in 30 days will need to be creative and cut a few corners if it's going to feature engaging visuals. Where last week's Chimneys and Tulips did that with a minimalist approach focused on color and typography, The Garden of God does it by building on a strong foundation: the graphic sprites and convenient capabilities of RPG Maker MV, the most popular tool for making JRPG-like games. But sprites are just one piece of a game's visual puzzle, and DreadRoach used that pre-made palette to paint some excellently designed environments:Based on a 1923 novel by H. De Vere Stacpoole, The Garden of God is a short, linear narrative experience that tells a simplified version of the first portion of the story, and manages to very effectively capture some of its key characterizations and emotional beats even as it reduces chapters of text to a few lines of dialogue. The story is short enough that it's not worth trying to summarize — just take a few minutes to play it through — except to say it's about a crew investigating something at sea:In addition to the skilled map design and use of sprites, the game employs a few nice little scripted sequences as characters interact, with occasional bits of background activity. Most of the actual story is conveyed by dialogue, but there are also objects in the world to be examined for more clues about what's happening, in the style of an adventure game. Though it's all pretty simple and straightforward, it was one of the only games that aimed for an ambitious and robust visual aspect, and that caught the eyes of all our judges. You can play The Garden of God in your browser from its page on Itch, and don't forget to check out our other winners as well as the many great entries that didn't quite make the cut.

As we mentioned, a bunch of websites started protesting yesterday in the lead up to next week's vote on Article 11 and Article 13 that will fundamentally change the nature of the internet. The main ones were various European Wikipedia editions, which completely blacked out and posted a warning message. Here's the one in Germany (with automatic browser translation -- the original, obviously, is in German):Different sites are doing different things -- and for some it depends on whether you're visiting from the EU or not, but it's good to see so many sites coming together on this. Reddit, as explained in a blog post on its site, are telling any EU Redditor who tries to post something new that it's blocked:Lots of others have stepped up as well. The ever popular online streaming site Twitch is warning people in a variety of ways, including creating a video about its concerns:

A little more than a month ago, we covered the ultra-weird offshoot of FBI forensics spearheaded by Richard Vorder Bruegge. Vorder Bruegge claimed mass-produced clothing like jeans were as unique as fingerprints and DNA. According to his forensic "expertise," a match could be made using only low-res CCTV screengrabs and whole lot of arrows.This peculiar strand of FBI forensics is still in use. Vorder Bruegge, rather than being laughed out of the FBI forensic lab, has risen to a position where he can pass on his dubious expertise to others. ProPublica continues to dig into the FBI's questionable forensic programs and has found that Vorder Bruegge is now sitting near the top of the nation's forensic organizational chart.

You know how supporters of Article 13 keep insisting it's "for the artists?" Well, successful independent musician Dan Bull has just put out his latest song and video: Robocopyright, calling out all the ways in which Article 13 will harm him as a creator:The key message: Article 13 and its requirement for filters (and, yes, it requires filters) will mean more gatekeepers, more censorship, and less freedom for creators. Algorithmic policing of content does not work as it cannot take into account context. It fails in both directions in blocking legit content and failing to block infringing content (which will only open up platforms to even greater liability). In short, to anyone who understands technology, it will be a huge mess.Go watch it and then let the EU Parliament know not to pass Article 13.

The online protests around the terrible Article 11 and Article 13 only began yesterday. This weekend there are expected to be significant in-person protests as well, leading up to the big vote next week. Already the protests are having an impact. MEP Julia Reda passes on the news from Polish MEP Michal Boni that the major Polish political party, Civic Platform (or Platforma) has said they will not vote for the EU Copyright Directive if it contains Article 13:

Today's example of the government's ugliness comes to us courtesy of Customs and Border Protection. There's a crisis at the border if the latest national emergency is to be believed (it isn't), and the only way to stop it is to ramp up enforcement. If this means tossing a 9-year-old American citizen in the clink, so be it.

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As you may recall, last month, the EU Commission published -- and then unpublished -- a bit of horrifically misleading propaganda, in favor of Article 13, mocking those who criticized it as a "mob" whose strings were being pulled by an evil dragon (apparently Google) to "slay a knight" (apparently valiant copyright). The article can still be found via the Internet Archive. This wasn't from a politician or bureaucrat who had officially come out in support, but from the EU Commission's very own Medium account. It was certainly an insult to the European public. After some outcry, the article was removed, but the "apology" that was put up instead was similarly insulting, saying that it was removed because "it has been understood in a way that doesn't reflect the Commission's position." Riiiiiiiiiiiiiiiiight. It was just that crazy mob who "misunderstood" you calling them a "mob" for pointing out that the poorly drafted law might create all sorts of problems.Anyway, some in the EU Parliarment were reasonably concerned about the EU Commission acting this way, and sent some questions. European Parliament Member Tiemo Wolken has tweeted out that they've finally received some "answers" even though it took way longer than normal and the "answers" don't actually answer the question. Also of note, is that Jean-Claude Juncker, the President of the EU Commission himself was the one who sent these non-answers. As Wolken notes, it's "very rare" that Juncker himself would answer such questions. Wolken posted the questions and answers as a screenshot, but I am doing my best to translate them via typing them all into Google Translate. I believe these translations are pretty accurate, but they may not be perfect. Let's start with question and answer one:

Another day, another Facebook privacy scandal.This time around, a "senior Facebook employee" has informed security expert Brian Krebs that Facebook has been storing the passwords of "hundreds of millions" of Facebook (and Instagram) users in plain text (aka unencrypted). This is a fundamental security error that no company should ever make, yet it's been a pretty common occurrence for tech companies where security and privacy are commonly seen as an afterthought. According to Krebs, the passwords were accessible to around 20,000 Facebook employees for the better part of the last decade:

Way back in 2016, we discussed one company's quest to sue a bunch of librararies and schools for infringing on its program to promote reading to young schoolchildren. If that seems positively evil, then, yes, you indeed have a soul, so congratulations. If you're wondering how such a thing could have legal standing, it all centers around Springboards to Education having created the reading program with rewards that included children entering the "Millionaire Reading Club" for getting through a certain amount of books, the handing out of fake reward money, and other prizes. A bunch of libraries and schools independently setup their own reading clubs with similarly named rewards, thus leading to Springboards filing suit.One of those school districts in Houston defended itself by pointing out that it was not engaged in commerce, meaning that its use was plainly Fair Use. The school won its case.

For years, FBI forensic experts have been overstating their certainty about… well, everything. Every piece of forensic evidence -- the stuff eventually proven to be junk science bolstered by junk stats -- was given the official "Thumbs Up of Absolute Certainty" during testimony.Eventually (very eventually), it was exposed for the courtroom snake oil it actually was. The FBI, duly chastened, promised to keep doing the same damn thing in perpetuity no matter what actual scientists using actual scientific methods had to say.For decades, this was standard operating procedure. A study by The Innocence Project found FBI forensic experts had been overstating their findings in court, resulting in a large number of potentially bogus convictions. The DOJ also admitted this error, but chose only to inform prosecutors of its findings, leaving it up to them to erase their own wins from the board.One of these dubious "hair match" cases has finally made its way to the appellate level. John Ausby, convicted of rape and murder in 1972, is challenging his conviction based on the prosecution's reliance on FBI experts' overstatements. Thanks to the DOJ's admission this expert testimony was likely flawed, Ausby can actually pursue this so long after the fact.Unfortunately, the lower court claimed the hair match testimony wasn't instrumental to the guilty verdict. It maintained the verdict would have been reached without the FBI forensic expert's assertions of certainty and the prosecution's reliance on this key -- but ultimately bogus -- piece of evidence.The DC Circuit Appeals Court disagrees [PDF]. As it points out, the situation isn't as simple as the lower court makes it appear. There was additional evidence used to convict Ausby, but the record shows the prosecution relied on the expert's statement that the hairs from the murder scene were an "exact match" -- something it reiterated during closing arguments.Given the combination of evidence used to convict Ausby, the court finds this overstatement of certainty was instrumental in his conviction.

Anyone who's used the US Court system's PACER system has complained about it. Some of those complaints have formed the basis of lawsuits. The multitude of complaints has moved legislators to make periodic runs at eliminating PACER's paywall. So far, PACER -- which looks and feels like it's still 2001 -- has managed to outlast these efforts. The only change over the last nineteen years has been an increase in access fees.Many have complained, but few have complained as eloquently as Seamus Hughes, the deputy director of George Washington University's Program on Extremism. His op-ed for Politico is definitely worth reading. It highlights everything wrong with the PACER system, including its amazing profitability.

The key to determining Fifth Amendment protections against compelled production of passwords appears to be a court's definition of the term "foregone conclusion." In many cases, courts have decided the government only has to clear a very low bar to meet this demand. In those cases, the only "foregone conclusion" the government needs to prove is that the person being compelled to provide a password knows the password. Once the government has linked the person to the locked device, it can get on with the compelling.If a court decides to raise the bar, it gets far more difficult for the government. In a few cases, the government has been asked to show it knows the evidence it seeks can be found in the locked device. Even if it meets this requirement, it can't just start throwing court orders at the criminal suspect. This "foregone conclusion" directly implicates the Fifth Amendment. The government is no longer simply asking someone to unlock a device. It's asking them to directly provide them with evidence that could be used against them.An Illinois state appeals court has decided the Fifth Amendment protects defendants from producing evidence to be used against them. (via FourthAmendment.com) In this case, the defendant was a passenger in a car stopped by law enforcement. A drug dog alerted on a leather bag belonging to the defendant. The ensuing search uncovered a prescription pill bottle containing cocaine, resulting in a charge of possession with intent to distribute.That's not all the cops found. They also found the suspect's cellphone, which he refused to unlock for them. The prosecution asked the court to force the defendant to provide the password. The trial court declined to do so, saying compelled production of evidence violated the Fifth Amendment. The appeal followed, and the government has now been told twice [PDF] there will be no compelled password production. First, it explains this exception to the Fifth Amendment, which is now enjoying its heyday (so to speak):

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Just as so many sites are protesting today, and people plan to be protesting this weekend, 130 EU-based internet companies have signed a powerful letter to the EU Parliament explaining why it must reject Articles 11 and 13. It goes through many of the same explanations many of us have made over the past few months, but also (importantly) highlights that passing this legislation will basically hand the internet to Google, one of only a very tiny number of companies who can actually deal with the consequences and requirements of such heavy-handed, poorly drafted laws:

I can remember being at E3 in 2000 and being pitched on the idea of a sort of "dumb terminal" for gaming. As in, you wouldn't need a computer or game console in your home, since all of the actual game processing would be accomplished in the cloud then streamed to your TV via broadband. Most of these early pitches never materialized. Initially because cloud computing simply wasn't fully baked yet, but also thanks to America' shoddy broadband.Cloud-based game streaming is something the industry has continued to push for, though nobody has yet to truly crack the market. Onlive probably tried the hardest, though again a lack of real cloud horsepower and sketchy residential broadband prevented the service from truly taking off.Undaunted, Google took to the stage at the Game Developers Conference to unveil Stadia, a looming game streaming platform that will let gamers play top-shelf games on any hardware with a Chrome browser. Google insists that the service, when it launches this summer, will be able to drive games at up to 4K resolution and 60 frames per second seamlessly between multiple devices with no need for game consoles, high-end PCs, loading times, or installs. The whole presentation is available here:If anybody can make the idea work it's certainly Google, whose massive transit and cloud computing firepower should give it a leg up on past efforts. Unfortunately for Google, the service still faces a daunting foe. One Google has previously tried and failed to disrupt: the shoddy state of US broadband:

As we noted earlier this week, a bunch of sites are taking part in an internet blackout today and urging their visitors, especially those in the EU to contact their MEPs, asking them to sign the pledge not to vote for Article 13. As the page notes, Article 13 is bad for the public, bad for creators and bad for innovation.Because this is being pushed (misleadingly) as being good for creators, I wanted to go into a bit more depth as to why that's wrong and why this will be bad for most creators. Over the past two decades, contrary to what some lobbyists will tell you, the internet has been an incredible boon to creativity and creators. The internet has made it easier to create, to promote, to distribute, to build a fan base, and to monetize your works than ever before in history. The idea that the internet has somehow harmed creators is a laughable myth. What the internet did do was change the model by which creators could make money. Historically, outside of the absolute fringes, it required you to get "accepted" into the club by a giant gatekeeper -- a giant gatekeeper most creators couldn't even get in front of, let alone sign a deal with. And, since that was the only path to success, those gatekeepers signed creators to insanely bad deals. They would own your copyright, not you. They would be in charge of what you created. They would be in charge of the relationship with fans. They would control how the content was distributed. You might have some input, but it was theirs now.And, yes, they might give you an "advance," but it was structured as a loan. You would need to use that advance to pay for everything having to do with the creation of your work -- and then the gatekeeper would bill against that "advance" for any revenue that came in. The amount of money you actually made would be tiny -- and the likelihood of ever actually "recouping" the advance was so slim, that record labels were known to not even keep records because they knew they'd never have to give you another dime.Compare that to the world today, with the internet. In the modern world, any content creator can just go online. They can create using tools available online. They can upload their content for free at a ton of different sites. They can reach a worldwide audience. They can promote. They can build a fanbase. They can make money from a bunch of different platforms. And they retain their copyright. They retain control. They don't have some giant company telling them what to do or keeping every penny that comes in.But Article 13 changes how things work. Supporters insist that it will magically make the big internet companies start paying artists more. But that's a myth. The entire structure of Article 13 is designed on purpose to be bad for the internet. The entire setup is to try to pressure internet companies into purchasing licenses, and it does that by basically saying, "if you don't buy a license for every piece of content, you will face crippling and impossible lawsuits."But that's an impossibility. How do you license every piece of content that anyone might post on your service? There is no way. Supporters of the bill insist that collection societies will step into the void -- but need I remind you of the myriad stories of how nearly every collection society falls prey to corruption, which frequently involves artists simply not getting paid at all?Even if collection societies do fill the void, how will lesser known artists actually get paid? As we've seen, the answer is they won't. Collection societies collect all the money, and since they can't track what belongs to less well known creators, they just give the money to the successful ones.And even if they could figure all of that out, most creators would still get screwed. The only way this system works is if there are just a few giant organizations on each side of the negotiations. The giant content creator gatekeepers and the big internet platforms. There is no room for smaller, more innovative internet platforms. There is no place for more targeted, niche communities to spring up, where artists can build closer relationships with their fans. Bandcamp is one of the best tools out there right now for musicians -- and has provided millions of dollars to musicians. How does it survive in a post-Article 13 world? I'm not sure it can. How does that help musicians? I have no idea. Patreon has become an amazing source for crowdfunding for musicians. How does it handle Article 13? Does Patreon really need to license all content? Again, how does it help artists to shut down Patreon?And even if you still think that it's fine to just have some giant licensing orgs on one side and a few giant internet platforms on the other, if the cost for the internet platforms goes up drastically, how many "free" services will they still offer? Do you remember the bad old days before you had YouTube/Vimeo where you could upload videos for free? You had to do something like set up a "RealNetwork" server -- which cost a ton and didn't work most of the time. And you had to pay for a ridiculous amount of bandwidth to host and stream your own video. YouTube, Vimeo and others made that all totally free. But if they now have to give a massive chunk of money to license-holders, why will they keep providing such services for free?The end result is that a few gatekeepers regain their position as gatekeepers. A few internet giants get locked into their position without much fear of competition. And artists and creators get totally screwed.This is not the internet we should want. Tell the EU to reject Article 13.

Roughly a year ago, we wrote about how museums were requesting an exception to the DMCA's anti-circumvention provisions in order to preserve online games. While the Librarian of Congress has already allowed for exceptions for preserving non-online games, the request led to pushback by the Entertainment Software Association, which indicated preserving online games would be copyright infringement. Nintendo is a member of the ESA and the gaming giant was at the same time going around to ROMs sites all over the internet and either threatening them with legal action or scaring them into shutting down. This happened all while Nintendo also released several retro consoles, essentially cashing in on the nostalgia that the emulation sites had kept alive for the past decade or so.All of which is to say this: Nintendo is not generally friendly to the idea of preserving Nintendo games via digitization that it does not control itself. Standing in contrast to that is the recent discovery of an otherwise essentially unknown Nintendo game from 30 years ago that, upon discovery, was swiftly digitized for posterity.

Today, botnets and the Distributed Denial of Service (DDoS) attacks that can accompany them, are considered among “the most severe cybersecurity threats.” Botnets have caused extensive economic harm to businesses, banks, hospitals, and government agencies around the world. Furthermore, botnets are used to spread political propaganda aimed at distorting democratic elections. In fact, U.S. government officials concluded that the Russian propaganda campaign has not stopped since the 2016 election and the magnitude of the issue is expected to grow. Yet, a time-tested framework for addressing the problem already exists. Governing complex internet-based problems is best accomplished by a network of stakeholders similar to the way the internet is currently governed.In her Nobel Lecture, Elinor Ostrom emphasized the necessity to study human economic behavior in any complex system. She added that no “one size fits all” policy solution would work for a highly complex socio-economic issue, but approaches created by a disperse, spontaneously self-organized group are far more innovative. This is the essence of polycentric order as defined by Elinor and Vincent Ostrom. A polycentric order has multiple overlapping decision-making centers comprised of individuals equipped with necessary knowledge and expertise to create better outcomes for issues of high complexity.In the case of cybersecurity, where dynamic response is critical - distributed network actors are best suited to govern complex cyber problems. While policymakers are one such group in this governance network, the efforts of other stakeholders are critical to maintaining flexibility and adaptability to emerging threats. The role of policymakers is to facilitating the emergence of multiple decision-making centers, which is key for resolving botnet issues.In his book Networks and States, Milton Mueller offers a comprehensive analysis of network actors outside of the nation-state system as well as their effectiveness in addressing cybersecurity issues. Mueller outlines distinct challenges of cybercrime such as its globalized scope, boundless scale, and its decentralized and distributed nature. He argues that efficient institutions and new organizational forms are in a continuous process of emerging out of the interactions between public and private actors.Mueller asserts that meaningful solutions to cybersecurity issues are only possible at the trans-national level. Such large international organizations as Internet Corporation for Assigned Names and Numbers (ICANN), The World Intellectual Property Organization (WIPO), and Internet Governance Forum (IGF) among others, provide governance at the international internet governance. Mueller highlights that an effective global internet security policy will recognize the interdependence of markets, nation-state specific property rights protections, and shared information and communication resources. He proposes that a “denationalized liberal approach” would be effective in resolving this dilemma. Moreover, he concludes that a true denationalized liberal governance will emerge out of the interactions of globally networked communities. His conclusions regarding internet security governance are, therefore, aligned with the Ostromian approach.There have been some promising developments in collaboration between private and public sectors. In 2018, USTelecom and ITI announced the creation of the Council to Secure the Digital Economy. The Council brings together the leaders from the Information and Communication Technology sector to create a more resilient digital ecosystem. For example, they produced the botnet guide, a compilation of best practices by large scale enterprises that can be implemented in a variety of industries to mitigate the threats of the distributed denial of service attacks. Additionally, the Federal Trade Commission has been facilitating meetings between stakeholders.Past and future administrations can learn from the Clinton Administration’s Framework for Global Electronic Commerce that made space for stakeholders to be involved in governing the internet and maximized cooperation between public and private initiatives for cyber-security. Indeed, the Obama administration’s cybersecurity plan included a call for technology companies to fight botnets collectively. The Trump administration declared its commitment to giving the Federal agencies legal authority to combat botnets.Government should not be the only source of governance in addressing cybersecurity problems. Botnets are best combated by a multistakeholder effort between public and private entities. The tenants of “polycentricity” and “decentralized liberalism” capture the wisdom of a more distributed governance approach.Anne Hobson is a program manager at the Mercatus Center at George Mason University. Yuliya Yatsyshina is an MA Fellow at the Mercatus Center at George Mason University.

A few years back, frustration at John Deere's draconian tractor DRM culminated in a grassroots tech movement. The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM and the company's EULA prohibited the lion-share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska that not only proposed protecting the consumers' right to repair their own tech, but protected independent, third-party repair shops from efforts by many major companies to monopolize repair (Apple and game console vendors like Sony and Microsoft usually come first to mind). This push then quickly spread to multiple other states, driven by a groundswell of consumer annoyance.Last week, California became the twentieth state in the country to support such a law. It's the second year in a row the legislation has been proposed, with the folks at iFixit explaining that this latest version eyes simply updating the state's existing lemon law:

All this technology is getting in the way of justice being served. For the second time in five years, Washington's Department of Corrections is dealing with issues created by its prisoner management software. Four years ago, this happened:

Yesterday we wrote about the completely ridiculous lawsuit that Rep. Devin Nunes -- a real live Congressional Representative -- filed against Twitter, a political communications expert, and two satirical fake Twitter accounts: one pretending to be his cow, and one pretending to be his mom. As we noted, in the lawsuit itself, Nunes' lawyer points out that the satirical cow had a grand total of 1,204 followers when the lawsuit was initiated. For reference, Devin Nunes' own Twitter account has ~394,000 followers. When we did our post yesterday, @DevinCow was up to 106,000. And now?Yup, 399k. Actually, as I've been typing this, it's kept going up, but I'm not going to keep taking screenshots. And, yes, the Cow now has more followers than Rep. Nunes himself:Great job, Devin. You really shut up that satirical cow.Now, Twitter, how do we go about getting the satirical fake cow a blue checkmark?

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A federal judge in Washington just reminded two Seattle police officers that a politician saying unkind things about law enforcement is not defamation. (h/t Peter Bonilla)Following the killing of Che Taylor by Seattle police officers, councilwoman Kshama Sawant issued statements criticizing the Seattle Police Department for the shooting. From the decision [PDF]:

Russia's efforts to clamp down on anything resembling free speech on the internet continues unabated. Putin's government has spent the last few years effectively making VPNs and private messenger apps illegal. While the government publicly insists the moves are necessary to protect national security, the actual motivators are the same old boring ones we've seen here in the States and elsewhere around the world for decades: fear and control. Russia doesn't want people privately organizing, discussing, or challenging the government's increasingly-authoritarian global impulses.After taking aim at VPNs, Putin signed two new bills this week that dramatically hamper speech, especially online. One law specifically takes aim at the nebulous concept of "fake news," specifically punishing any online material that "exhibits blatant disrespect for the society, government, official government symbols, constitution or governmental bodies of Russia." In other words, Russia wants to ban criticism of Putin and his corrupt government, with experts telling the Washington Post that the updated law effectively removes the pesky legal system from what was already a fairly draconian system:

Cops may not know art, but they know what they don't like. Blowing past the First Amendment to give their official opinion on art critical of law enforcement is never an acceptable "solution," but it's one that happens nonetheless.Last year, a high school decided it would rather demonstrate its subservience to local law enforcement than stand behind its students and their First Amendment rights. Photos of a painting of a cop in Ku Klux Klan hood pointing a gun at a black child appeared in the school newspaper. Instead of running the article, a teacher ran down to the cop shop to offer a profuse apology on behalf of "99.9% of the teachers at the school." Returning to school with the aftertaste of boot polish still lingering in his mouth, he engaged a full-on tongue kiss with the town's mayor, who offered his own profuse (and cowardly) apology to the offended police department.Now, as Sarah McLaughlin of FIRE reports, another institute of learning has decided the best approach to controversial artwork is to display its soft underbelly to law enforcement as quickly as possible. A faculty member's artwork was deemed "controversial." This is an unsurprising development. Controversy and artwork have enjoyed a long and healthy relationship for many, many years.What is surprising is the university's reaction to the controversial artwork. Faculty member Serhat Tanyolacar's submission was met with a whole lot of resistance from Polk State (Florida) itself due to its subject matter.

Last week Glyn mentioned that the German Wikipedia had announced plans to "go dark" this Thursday to protest Articles 11 and 13 of the EU Copyright Directive. And now it appears that a whole bunch of other websites will join in the protest (including us). While we won't go completely dark, we'll be putting up a banner in support of the many websites that do plan to go dark -- and we've heard that an awful lot of websites will be joining in. Supporters keep trying to dismiss these complaints as just being "bots" or the big internet companies, but lots of others will be showing that this is about the broader internet this Thursday. This is just one of many protests happening this week, with in-person protests happening all through the EU this coming weekend as well. Meanwhile there are lots of efforts to get MEPs to pledge to vote against Article 13 that has been gaining momentum as well. I have no idea if these kinds of protests will be as effective as the blackday back during the SOPA fight, but I can say that Article 13 will be way worse for the internet than SOPA ever would have been.

To hear it from the film industry writ large, a certain picture is painted in one's head when film piracy is discussed. That image is of a person, typically young, perhaps living in Mom and Dad's basement and covered in Cheetos dust, illicitly downloading film after film for their personal enjoyment, cackling evilly all the while. And, hey, personal downloading that amounts to infringement is certainly a thing.But it's not the only thing. In India, where Bollywood has often put out the same old story about the evils of piracy, and where the government recently ramped up criminal penalties for recording or transmitting films and audio, one newspaper has comments from within the industry that suggest much of the film piracy in question is specifically enabled by rival publishing houses.

Sometimes people ask us why we write so much about the police on Techdirt. Though our coverage has grown somewhat beyond the boundaries of incidents directly involving technology, the reality is that the problems with law enforcement persistently intersect with the same technological and legal issues we've always discussed here. But this week the focus is squarely on cops and technology: Mike is joined by Matt Stroud, author of the new book Thin Blue Lie, as well as our own Tim Cushing, to talk about the failure of high-tech policing.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.