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There's more than one contortionist performance going on here. (h/t Greg Doucette)

Last year, Devin Nunes co-sponsored the Discouraging Frivolous Lawsuits Act. Twelve days ago, he voted for a House Amendment "to express a sense of Congress that free speech should be protected."And yesterday, he sued an internet cow for making fun of him.By now you may have heard, as first reported by Fox News, that Rep. Devin Nunes -- who spent two years making a total mockery of the House Intelligence Committee -- has decided to sue Twitter and some satire accounts, and a real political commentator for a variety of "offenses" from defamation to shadow banning. The complaint, filed in a local court in Virginia, is not yet available anywhere but Fox News' posting of it (so you can click the link above, but we can't embed it yet).Let's just get the first part out of the way: the complaint is utter nonsense. It is a complete joke. It makes a total mockery of the judicial system and its an embarrassment that Nunes thought this was a good idea. We'll get into the details in a moment, but rest assured, we see a lot of really dumb lawsuits, and this one is up there on the list of truly special ones.At the very least, it highlights exactly what kind of content gets under his skin. It's mostly a bunch of dumb tweets mocking Nunes that not that many people saw... and now absolutely everyone will see. Apparently, Rep. Nunes has never heard of the Streisand Effect, but he's learning quite a bit about it now.Let's dig in. The caption for the lawsuit is... truly special:If you can't see that, it lists Nunes as the plaintiff followed by four defendants: Twitter, Liz Mair, and then two obviously satirical Twitter accounts: @DevinNunesMom and @DevinCow. Yeah.The lawsuit does not get any better from there. He's seeking $250 million and almost every argument in the lawsuit is beyond laughable. The very first footnote, on the first page, completely misrepresents Section 230 of the CDA to a laughable degree:

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During the Trump era, the US government has dramatically ramped up claims that Chinese hardware vendor Huawei is a nefarious spy for the Chinese government, blackballing it from the U.S. telecom market. 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.While Huawei should never be confused with a saint (what telecom company would be?) there's several problems with the effort. The biggest being that despite a decade of hand-wringing and one eighteen month investigation by the US government, there's still no public evidence Huawei uses its network gear to spy on Americans. That's not sitting well with countries we've asked to join along in the fun.The UK, for example, recently noted that while some Huawei products can pose risks by nature of simply being low quality, they've yet to see any threat posed by Huawei that necessitates a global ban. That position has since been repeated by other allies who have been pointing out how despite years of bluster on this subject, they've yet to see the US government release the slightest bit of evidence supporting the allegation:

A key claim by those who support Article 13 is that it's necessary to get "fair compensation" for artists on the internet. Whenever more specifics are needed, supporters almost always point to musicians, and talk about "the value gap" and how internet companies are taking all the money and recorded music has been destroyed by the internet and all of that. And, of course, if you've followed the rhetoric in the last 20 years since the introduction of Napster, you'd believe that the recorded music business is in a never-ending death spiral. Of course, as we've pointed out, the "recorded music business" is just one segment of the larger music business, and nearly all other aspects of it (especially live music) have continued to grow pretty consistently each year.But, a funny thing has happened in the past few years that undermines the doom and gloom message: the recorded music business has been growing. Rapidly. And it's entirely due to the internet and all of the various services that the RIAA had been slamming for years. Indeed, it did seem notable when the RIAA put out its latest revenue numbers for 2018, showing the incredibly rabid growth over the past four years of the recorded music business. So I started taking an even closer look at what's happened over the past decade. Thankfully, the RIAA actually makes all of the data available, and so I put together this handy chart:So, yes, things sort of bumbled along for the first few years of the past decade, but the last few years are ones of massive and incredibly rapid growth due to online streaming. The US recorded music business is right at about $10 billion (if you're interested, the live music business in the US is about the same, counting both ticket sales and sponsorship).Now, you might say, well that's just the US, and Article 13 is about Europe. Thankfully, IFPI puts out similar numbers (counted slightly differently, unfortunately, so it's not an exact comparison). IFPI has not yet released its 2018 numbers, but looking at the report from last year you see that the global numbers show a pretty similar change, again, with things bottoming out a few years back, and then showing new growth, almost entirely from the rapid increase in streaming services. I expect when IFPI releases its 2018 numbers, we'll see just as dramatic a bump up as we see with the RIAA's US numbers:So, it certainly looks like the internet (as some of us predicted...) has absolutely been the savior to the music business -- it just took the legacy companies hellishly long to embrace it.But, again, I'm left wondering why is it that we need Article 13 again? To hear Axel Voss and other supporters talk about it, the recording industry is in a death spiral without it. Yet, the actual stats show things are going quite well and growing like gangbusters.

Monster Energy: is there no trademark opposition they can't lose? The drink company, which might be more well known at this point for its trademark bullying than its beverages, has been handed loss after loss after loss after loss in trademark oppositions to everything from industrial paint manufacturers to the NBA and on to other beverage companies. Why the company spends so much time opposing trademarks is literally anyone's guess, but the losses all amount to the complete lack of potential confusion in the disputed trademark applications, as well as Monster Energy believing it can control words and images that it most certainly cannot.The latest of these, in yet another opposition Monster Energy lost, has the UK's IPO explaining to Monster Energy that it cannot prevent other companies from using the letter "M" prominently in their logos.

When legislators craft unconstitutional laws, it's a safe bet the first people to abuse them will be members of the government. We've seen this happen with outdated criminal defamation laws and the new wave of "Blue Lives Matter" legislation. Attempts to curb online evils like cyberbullying and revenge porn tend to disregard the First Amendment. If they're not challenged, they go on to be tools deployed by government officials to silence critics.That's what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state's cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment's existence. (via Courthouse News)

Apple has a long and storied history of playing make believe that only it can, in any way, use the image of an apple in any sort of branding. Despite trademark laws around the world generally being built on the notion that branding must be used in commerce, must be in a related industry, and must cause or have the potential to cause confusion in the public, Apple's lawyers have generally demurred on the subtle aspects of these laws. This has led to disputes with small German cafes, with Chinese food manufacturers, and with pharmacies. It can be said without question that such disputes initiated by Apple are specious at best, but it can at least be said in Apple's defense that each of those cases involve a foe that was a private, commercial business.Such is not the case when it comes to Apple's recent trademark opposition of the logo of a political party in Norway.

ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

I know, I know, it's cool these days to hate on the big internet companies, but people keep getting carried away with accusations that don't reflect reality. We should be able to agree that there are problems with the big internet companies (and to suggest ways to deal with them), without falling prey to easy attacks on those companies that don't make sense once you understand the details. The latest example of this "Big Tech Derangement Syndrome" came in response to last week's absolutely horrific massacre in Christchurch, New Zealand. As many have noted, the attack was almost perfectly planned to play to a certain corner of the shitposting, trolltastic parts of the internet. Indeed, the use of social media by the attacker appeared to follow a very similar model to the one that had been perfected by ISIS a few years ago.This has, of course, resulted in a lot of hand-wringing about the role of the internet in all of this. And I do think that there are many worthwhile conversations to be had about how internet platforms promote or highlight certain content over other content (though, of course, any attempt to really deal with that will almost certainly lead to more bogus accusations of "conservative bias" on these platforms).But what was disturbing to me was how many people focused on the fact that the various internet platforms had a tough time getting rid of all of the copies of the livestream video that was posted of the attack. I saw multiple variations on the theme that "if the internet platforms really cared about it, they could block those videos," with the clear implication being that the platforms don't take this issue seriously. A particularly ill-informed variant on this was "if this video were covered by copyright, it would have been blocked." Of course, those of us who spend lots of time talking about the failures of using filters to try to block copyright-covered content know that's not even close to true.What surprised and disappointed me was that this even came from people who should know better. The Washington Post's Drew Harwell lead the charge with a widely retweeted thread that lamented how many internet platforms carried aspects of the attack and questioned what "responsibility" the platforms had:

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Alt-right sideshows Laura Loomer and Larry Klayman sued Twitter, Facebook, Google, and Apple for [checks filing] participating in a government-enabled conspiracy to deplatform Freedom Watch/Loomer in order to further a leftist agenda, etc. etc. ad nauseum. Their complaint alleged violations of the Sherman Act, DC's public accommodation law, and the First Amendment. In support of these allegations, the plaintiffs offered vague theories about "public platforms" and some misreadings of pertinent court precedent. (via Eric Goldman)After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

By now we've established that while fifth-generation (5G) wireless will result in faster, more resilient networks, the technology has been over-hyped to an almost nauseating degree. Yes, faster, lower latency networks are a good thing, but 5G is not as paradigm-rattling as most wireless carriers and hardware vendors have led many in the press to believe. 5G is more of a useful evolution than a revolution, but it has become the equivalent of magic pixie dust in tech policy circles, wherein if you simply say "it will lead to faster deployment of 5G!" you'll immediately add gravitas to your otherwise underwhelming K Street policy pitch.Throughout all of the hype, carriers have been really hesitant to discuss what's perhaps the most important question: how much will 5G cost? After all, next-generation connectivity is only going to help boost broadband competition if it's both ubiquitous and affordable, two things the US wireless industry has never really been known for. And now that the carrier lobbyists have effectively convinced the Pai FCC to neuter itself, that question has only become more important.It's starting to become clear why carriers haven't wanted to much talk about price. AT&T's early offerings haven't been much to write home about. And this week Verizon took the wraps off the pricing for its mobile 5G offerings, noting that consumers will need to pay $10 extra per month across the board if they're interested in using it:

Our first place winner for insightful this week is Mason Wheeler with a response to the idea that bogus DMCA takedowns are a tiny exception rather than the rule:

In our public domain game jam, Gaming Like It's 1923, we had a tie in one of our prize categories, with two entries winning Best Visuals. This week, we're putting the winner spotlight on the first of those two games: Chimneys and Tulipsby litrouke.Graphics are famously among the most labor- and resource-intensive parts of the game development process, so in a 30-day game jam, achieving something visually noteworthy isn't easy. It takes ingenuity and inspiration, and that's exactly what this game has, even if it's a little lacking on the gameplay side. Chimneys and Tulips is a creative presentation of four poems by E. E. Cummings as short interactive design experiences, with a focus on typography. Each one has a different style, and aims to harmonize its graphical and interactive elements with the meaning of the poem.The first poem, gee i like to think of dead, is presented as a fairly simple linear story, interspersed with illustrative icons, that reveals itself one piece at a time. All in green went my love riding is more intricate, using a "swapping" mechanic for the opening words and offering more and more colorful typography as it progresses. Picasso you give us uses some additional graphics and a simple but captivating animation trick, and is the most visually elaborate of the four. And why did you go little fourpaws deconstructs itself as the user clicks on various words, all the while slowly fading from view.Though simple, the visuals in Chimneys and Tulips were more closely and thoughtfully united with the game's purpose and content than just about any other entry, which earned it a win for the category alongside another game that we'll feature next week. You can play Chimneys and Tulips 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.

Remember SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act)? Back in 2012, they threatened to cause widespread damage to the online world by bringing in yet more extreme and unbalanced measures against alleged copyright infringement. Things looked pretty bad until a day of massive online protest was organized on January 18, 2012, with thousands of sites partially or totally blacked out. Politicians were taken aback by the unexpected scale of the anger, and their support for SOPA and PIPA crumbled quickly. That success fuelled protests in Europe against ACTA (Anti-Counterfeiting Trade Agreement), which also sought to bring in harsh measures against online infringement. After tens of thousands of people took part in street demonstrations across Europe, many politicians wanted nothing to do with the by-now toxic proposal, and it was voted down in the European Parliament in July 2012.As Techdirt pointed out last year, the proposed EU Copyright Directive is even worse than ACTA. As such it clearly merits serious, large-scale action of the kind that stopped SOPA/PIPA and ACTA. And it's happening. The German-language version of Wikipedia, the second-largest by number of articles, has announced the following (original in German):

Last year we wrote about Homeaway and Airbnb's challenge to an ordinance in Santa Monica that would force them to monitor their Santa Monica listings to ensure they were legally compliant. The Santa Monica ordinance, like an increasing number of ordinances around the country, requires landlords wanting to list their properties on these services to register with the city and meet various other requirements. That part of the ordinance is not what causes concern, however. It may or may not be good local policy, but it in no way undermines Section 230's crucial statutory protection for platforms for Santa Monica officials to attempt to hold their landlord users liable if they go online to say they have a non-compliant rental listing.The problem with the ordinance is that it does not just impose liability on landlords. It also imposes liability on the platforms hosting their listings. The only way for them to avoid that liability is to engage in the onerous, if not outright impossible, task of scrutinizing whether or not the listings on their platforms are legal. Which is exactly what Section 230 exists to prevent: forcing platforms to monitor their users' speech for legality, because if they had to police them, they would end up facilitating a lot less legitimate speech.Yet that's what the Ninth Circuit decided to let Santa Monica do – force platforms to monitor their user-generated speech – in a decision earlier this week upholding the district court's refusal to enjoin the ordinance.Of course, that's not how the court saw it, however. To the court, platforms weren't being forced to police the speech they hosted. They were merely obligated to police the rental transactions they facilitated.

Here at Techdirt we've talked a lot about how in the modern, internet-connected era, you don't really own the things you buy. For over a decade we've shown how your digital books, music, or films can simply and quickly disappear without much recourse. The game console you've bought can be suddenly and mysteriously downgraded via firmware update, leaving you with a product that actually does less than the one you bought. And more and more frequently, companies are going further and completely bricking products they no longer want to support, leaving consumers with a pricey paperweight.The latest case in point: many consumers shelled out upwards of $900 for a twelve-inch tall "social" robot by the name of Jibo. Started as a research project at MIT, Jibo was crowdfunded then marketed as the "the first social robot for the home." First sold in 2017, the robot offered some basic interactive functionality much like similar products, promising to offer a digital home assistant with a little more personality. Reviewers were generally not all that impressed, saying the product had charm but lacked functionality:Elbowed out by better products, Jibo was ultimately forced to scuttle the effort, and last year sold off all of its assets to a VC firm. And because Jibo's owners were forced to shut down the servers that powered much of the robot's functionality, owners of the $900 robot have since reported that Jibo has been informing them that it's dying just a few years after it was created, delivering one final pre-programmed message before the lights go dark and consumers are left with a useless relic:

Regular Techdirt commenter Ehud Gavron recently forwarded me an email conversation he had with a "representative" from yet another "online reputation management" company. This one is called "Reputation Defenders," which sounds like half a dozen other similar companies with similar names. The company had apparently spammed Gavron, but he wrote back to see if they'd reveal more about how they do what they do. The company responded, explaining the "three tools" to "remove" a bad review from Ripoff Report:

The Fourth Circuit Court of Appeals has handed down an important decision [PDF] bolstering privacy protections for stored email. As we're painfully aware, unopened email older than 180 days is granted zero privacy protections, treated like unopened snail mail left at the post office. Opened email, on the other hand, would seem to carry an expectation of privacy, but a district court ruling came to exactly the opposite conclusion, prompting this appeal.A lawsuit involving a pair of affairs and one party's decision to read someone else's emails surfaced a question not often posed without a government party involved. Here's the court's summary of the convoluted backstory that led to accusations of federal law violations:

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Looks like ICE isn't finished protecting the nation from dangerous immigrants seeking to… attend local universities. A massive sting operation involving a fake college, fake accreditation, and hundreds of immigrants who paid for classes but received nothing more than an arrest in exchange for their cash is apparently still ongoing.

As we previously noted, Democratic lawmakers recently just proposed a very simple, three page law. The Save The Internet Act would simply reverse the Ajit Pai repeal of net neutrality, and restore the FCC's 2015 net neutrality rules. It would again classify ISPs as common carriers under Title II of the Telecom Act, but, as an act of Congress, couldn't be repealed by the whims of future FCCs. It also locks the "forbearance" part of the original rules (which prevented the FCC from using Title II to regulate broadband rates) into permanent law.Unfortunately at House Communications Subcommittee hearing for the new bill on Tuesday, all the stale tropes resurfaced, despite the countless years spent debunking them. Representative Bob Latta, for example, trotted out the longstanding claim that classifying ISPs as common carriers under Title II is some kind of fringe, extremist position:

A bunch of sites have been reporting on the news that over 200 organizations have signed a letter in support of the EU Copyright Directive, with most of the news reports focusing on the fact that a ton of music collection societies and music industry trade groups are on the letter. The letter itself makes no real argument, it just says "pass this damn thing." Well, since the law hasn't yet passed, I think I can quote the whole thing without getting fined, so here it is:

Call me surprised. We have been recently discussing a proposal in Japan to alter copyright law in the country to criminalize every single instance of copyright infringement, rather than saving any of that for the civil courts. The bonkers proposal would take the current law, in which all instances of copyright infringement on movies and music carry criminal penalties and expand that to essentially all copyright infringement everywhere. This would include screenshots, posting lyrics to songs, and the like. Shortly after all of this was announced, a large group of Japanese academics wrote an open statement to the government indicating their concern that allowing the new law to move forward would result in an extreme chilling effect on internet usage in the country. At the time, I said it was a litmus test for whether the government would take any objection to the law seriously, tame as it was. It was also likely clear that I wasn't optimistic.Well, surprise, the government has actually put the proposal on hold out of a concern for the very chilling effects those academics raised.

Some more good news about asset forfeiture comes our way, courtesy of Lauren Krisai. It appears the Arkansas senate overwhelmingly agrees the abusive state of forfeiture it oversees cannot continue. The state senate unanimously passed an asset forfeiture reform bill that would institute a conviction requirement for seized assets, preventing law enforcement from policing for profit.The bill would basically outlaw civil asset forfeiture in its current form, replacing it with criminal asset forfeiture. And it would prevent cops from using rinky-dink criminal charges to take property away from state residents.

Thailand's government continues to make life miserable for its citizens. Pretending mass censorship and broken encryption are just the price citizens have to pay for a "secure" nation, the government has turned the internet into a minefield for critics and political opponents. This is all on top of a lese majeste law that criminalizes badmouthing the king, which would be horrible enough on its own.Thanks to the leader of the free world, the term "fake news" is now being deployed to put people in real jails for sharing content of dubious origin or not in alignment with the official narrative. Shutting down criticism by deploying anti-fake news laws is a horrendous abuse of government power. But even legitimate uses of these laws are still troubling. Should the sharing of actually fake news be a criminal offense? The Thai government says yes.

Even a cursory look at past stories we've done about how companies treat security researchers who point out the trash-state of their products would reveal that entirely too many people and companies seem to think shooting the messenger is the best response. I have never understood the impulse to take people who are essentially stress-testing your software for free, ultimately pointing out how the product could be safer than it is, and then threatening those people with legal action or law enforcement. But, then, much of the world makes little sense to me.Such as why a Yelp-for-MAGA people should ever be a thing. But it absolutely is a thing, with conservative news site 63red.com releasing a mobile app that is essentially a Yelp-clone, but with the twist that its chief purpose is to let other Trump supporters know how likely they are to be derided when visiting a restaurant. This is an understandable impulse, I suppose, given the nature of politics in 2019 America, though the need for an app seems like overkill. Regardless, the app was released and a security researcher found roughly all the security holes in it.

If you're unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We've linked to it a bunch over the past decade. And now it's going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

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Everything's bigger in Texas. Even the free speech protections. Texas has one of the strongest anti-SLAPP laws in the nation. These protections against bogus, speech-chilling lawsuits are so big they even covered a US President who complained libel laws in America were too restrictive, resulting in a swift dismissal of a defamation lawsuit brought against him over a fairly innocuous, if invective-loaded, tweet.Some Texas legislators like the bigness of their home state, but not so much the anti-SLAPP law that deters bogus lawsuits filed to silence critics. The Reporters Committee for Freedom of the Press brings news that a bill that would gut a substantial amount of Texas' anti-SLAPP protections has been introduced into the state Senate.

America has a very Charlie Brown and Lucy football approach to its relationship with megamergers, especially in telecom. Time after time, major tech and telecom companies promise consumers and employees the earth, sea, and sky if they're allowed to become bigger and more powerful. And time after time these promised "synergies," jobs, and expanded investment promises wind up being empty. In merger after merger (especially in telecom), it's been made repeatedly clear these megadeals only really benefit investors and executives. For everybody else, they're an expensive shitshow.The primary culprit continues to be the country's waning interest in meaningful antitrust enforcement, Luddite Judges, and the steady lobbyist erosion of antitrust itself. That was proven loudly when the DOJ recently tried to prove the obvious when it challenged AT&T's $86 billion acquisition of Time Warner. The government repeatedly provided economic models showcasing that the megadeal would immediately result in higher prices for consumers and competitors alike. But a lobbyist-dictated narrowing of what constitutes a competitive threat often leaves government lawyers trapped within narrow corridors of economic theory to prove painfully obvious points.Ultimately, the DOJ's arguments were rejected by US District Court Judge Richard Leon, whose ruling (allowing the merger to proceed without a single condition) has been widely ridiculed for missing the forrest for the trees. At no point did Leon's thinking stumble anywhere near AT&T's obvious plan to use both its domination of "must have" content (like HBO) and the death of net neutrality synergistically to disadvantage competitors. That's not a theory; it's already happening. The DOJ didn't help its case by failing to mention net neutrality even once on trial or appeal, likely because it didn't want to highlight how while it was trying to protect consumers (allegedly), the Trump FCC was busy giving them a giant middle finger.It didn't take long for AT&T to prove the DOJ's case, not that it apparently mattered. Before the ink was even dry on the deal, AT&T had jacked up the carriage costs of HBO for competitors, forcing companies like Dish Network to drop the channel after arguing they could no longer afford it. AT&T was also quick to jack up prices for its DirecTV satellite customers, including hikes in a bevy of misleading fees. And this week, word leaked out that AT&T will soon be getting rid of its $40 base plan, and replacing it with two new $50 and $70 plans (read: hike prices):

I'm beginning to think that Axel Voss, the Member of the European Parliament in charge of ramming through the EU Copyright Directive, doesn't have much of a clue about how either copyright or the internet works. Last week, we pointed out that he was making provably false statements about Article 13, and wondered why he'd be doing that. But the more he talks, the more I'm wondering if he simply doesn't understand the basics of either copyright law or the internet. The latest comes in some quotes he gave in a great article by DW.com, which correctly highlights how Article 13 is going to lead to widespread censorship. Voss tries to defend it with some truly bizarre claims:

Florida legislators are thinking about handing some opacity back to Florida law enforcement agencies in the wake of the Parkland school shooting. The tragedy of the event was compounded by on-site law enforcement's response: that is, there wasn't any. Faced with increased scrutiny over a handful of mass shootings in the state, at least one legislator's response has been to bury the bad news under a new public records exemption. [h/t War on Privacy]

It's been roughly two years since we last had any update on the lawsuit that was brought by the estate of Dr. Seuss against ComicMix, a group of artists that created a mashup book in the styles of Dr. Seuss and Star Trek. The suit was over trademark and copyright rights, with the court ruling against the estate two years ago on the trademark claim. At the time of the ruling, the court gave the estate two weeks to prove there was any real harm done on the copyright side, after already ruling the trademark uses were fair use. Given the context of the judge's comments in the request, it was clear the Suess Estate had a hell of a hilll to climb.A hill that now, nearly two years on, appears to have been insurmountable, as the firm representing ComicMix has announced that it has prevailed on the fair use copyright claims as well.

Another day, another SLAPP suit. Back in 2015, NY Times reporter Eric Lipton wrote an interesting article detailing the close ties of the food industry with various academics in ways that some might find questionable. Most of the discussion focused on companies on both sides of the debate around whether or not there should be mandated labels on genetically modified foods (so called GMOs). And while it was one side of the debate that encouraged Lipton to look into this, he used Freedom of Information laws to get emails from a bunch of academic scientists working at state universities. This practice is a bit more controversial than other types of Freedom of Information laws -- which are normally used to access government records from those in actual government agencies. However, in the more recent past, FOIA laws have been used to access academic emails, noting (correctly) that since state universities are technically government entities, those emails are considered public records.Some of those emails between the academics and industry reps were, perhaps, less than flattering. And so one of the academics -- Dr. Kevin Folta, the chair of the horticultural sciences department at the University of Florida -- decided to sue Lipton and the NY Times for defamation. Somewhat surprisingly, Lipton and the NY Times failed to get the case dismissed at the Motion to Dismiss stage (basically your first chance to get a case tossed), though the Florida court expressed significant concerns about the overall case.

The push is on to implement biometric screening at major US airports. The DHS has been pushing this for awhile, telling concerned travelers all they need to do to opt out is not travel. The pilot programs don't seem to have produced anything in the way of actionable results, but the administration's insistence that the US is surrounded by terrorists has dropped a lead foot on the DHS's gas pedal, resulting in an accelerated process that ignores both concerns about biometric scanning tech and the concerns of the traveling public that will be subjected to it.EPIC's numerous FOIAs have resulted in an impressive stash of documents detailing the DHS's biometric scanning surge.

Techdirt has just written about an important intervention by the UN Special Rapporteur on freedom of expression in the debate about Article 13 of the proposed EU Copyright Directive. David Kaye said that most Internet sites "would face legal pressure to install and maintain expensive content filtering infrastructure to comply with the proposed Directive." Despite the evident expertise of Kaye in this area, some may try to dismiss this clear condemnation of Article 13 as the UN interfering in a legislative process that really only concerns the Member States of the EU, and no one else. That makes the following official reply by Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, to a question submitted by a member of Germany's national parliament, rather significant:

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The question in the title is one that I actually think is worth discussing, because seeing the reactions to both Mark Zuckerberg's announced plans for greater privacy in Facebook's messaging tools, and to Elizabeth Warren's not very well thought out plan to break up Facebook, it seems quite clear that some people just want the company dead at any cost. Indeed, I've seen a lot of people pointing to this AP article, derisively, about how Facebook's plans for more privacy are all a misleading game because the the company might profit from it.As if that's a bad thing.For years, we kept getting told that the reason big companies like Facebook and Google didn't treat user privacy very carefully was because there was profit in scooping up all our data, and that there were no profits in privacy. This was seen as a problem. Yet, now that Facebook is exploring ways to provide more privacy and snoop less, some are still complaining that it might profit from it? Shouldn't we want to see business models that align with protecting user privacy? Shouldn't we want companies to realize that protecting user privacy both can and should be profitable as well? Won't that encourage companies to move away from data surveillance business models into ones that are more respectful to end users?That's why I highlighted the positive concepts in Zuckerberg's post. Because I think it's good to encourage companies to go in the right direction.But many people, clearly, do not agree. And, as far as I can tell, the thinking is that they don't care about a better Facebook or a Facebook that protects privacy. All they want is a damaged or (even better) a dead Facebook. And, frankly, that kind of thinking makes no sense to me. Look, I'm all for something better coming along and killing off Facebook that way. I'm all for creative destruction -- especially the kind that destroys big stodgy businesses by giving their customers a much, much better experience. But, focusing just on killing off Facebook for no reason other than "company bad" doesn't make much sense. Like it or not, billions of people use Facebook.And most people can agree that Facebook has a history of fairly egregious behavior at times, but slamming the company for finally doing something positive, doesn't seem particularly productive. It doesn't encourage other companies to do the right thing either. Sure, it makes sense if your goal is just a "dead Facebook," but arguing for a "dead Facebook" for no other reason than you just don't like Facebook is irrational. I want to see more competition in the marketplace, and I'd love to see Facebook not be as dominant. But I'd also greatly prefer a Facebook that is a good actor, rather than a bad one.

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about (200,000 complaints annually, making up 60% of all FCC complaints), and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. 4.9 billion such calls were placed in February alone:You might recall that HBO's John Oliver caused Ajit Pai's FCC no shortage of trouble when his coverage of net neutrality drove millions of pissed off consumers to the FCC website to complain. The FCC then got into a bit of hot water (and remains under investigation by the GAO and others) after falsely claiming those angry website visitors were part of a malicious DDOS attack. In reality, emails confirmed FCC staffers were simply trying to craft an alternative explanation to try and downplay massive public opposition to the Trump FCC's policies.Fast forward to last weekend, and Oliver again brought some much-needed attention to the FCC's apathy, this time on the subject of robocalls. The whole missive is well worth a watch if you haven't seen it already:Oliver's bit (which involves robocalling all five FCC commissioners) does a stellar job highlighting that the previous FCC passed new rules to rein in the robocall threat. But those rules were struck down by the courts after a lawsuit by the Association of Credit and Collection Professionals, a group representing debt collectors (Pai celebrated the ruling at the time). To be clear, Pai has done a few notable things to try and crack down on the problem, ranging from slightly expanding (pdf) carrier abilities to try and block the calls, to issuing major fines against particularly-obvious scammers.But as Oliver notes, there's a lot more Pai's FCC could do, like demanding big carriers offer their customers free robocall protection services, actually punishing those lagging behind at adopting anti-spoofing authentication tech, and narrowing the definition of robocalls to include debt collection and other purportedly "legit" but overwhelming callers. But that would require Pai actually standing up to major industries, something he's yet to do at any meaningful point during his appointment as FCC boss.As it stands, predictions are that by next year, half of all calls made will be robocalls. And while companies like AT&T spent a few years trying to blame everybody else for its own failure to police the problem, it's one of several carriers finally on the cusp of deploying SHAKEN/STIR authentication technology that should dramatically put a damper on caller ID spoofing later this year. But evolving scammer tactics and lagging carriers means that to solve this problem, the FCC will need somebody willing to actually punish companies that refuse to do more.

The UN Special Rapporteur on freedom of expression has put out another warning that the EU's move towards approving the EU Copyright Directive, and Article 13 in particular, is inconsistent with human rights standards. That's the polite way of saying that it's going to trample all over the public's rights, and especially rights concerning free speech.

Of all the antipiracy strategies on offer for the content industries, we've always promoted the having affordable, legal, and convenient alternatives as the best of them. As study after study after study has shown, one of the primary motivators for copyright infringement is a lack of reasonable access to the content legally. Why this is such a hard lesson to learn is anyone's guess.The popular German football league, Bundesliga, recently, and finally, came to the conclusion that the first step in competing with piracy of its games is to, you know, actually compete with it. The post starts off by mentioning how many of the larger football/soccer leagues are looking at site-blocking as the best tool for combating piracy. Bundesliga, however, apparently only recently realized that no legal alternative for many fans exists.

James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

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A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI's continuous surveillance -- assisted by an FBI informant -- violated a number of Constitutional protections.The key victory here is the court's overturning of the lower court's ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government's motion to dismiss, saying the government's secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can't dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:

I've made it clear that I don't think much of Elizabeth Warren's big plan to "break up big tech," which seemed not particularly well thought out and unlikely to accomplish its actual goals. Even so, I certainly cringed upon hearing the news that Facebook had blocked an ad that Warren's team had taken to promote the plan. I mean, come on. Here is Warren, talking about how Facebook is too powerful and can potentially influence policy by choosing what it allows and what it doesn't allow... and Facebook up and hands Warren the most beautiful gift she could ever hope for: blocking her own ad for her policy to break up Facebook. Basically everyone immediately spun the story as Facebook trying to censor this call to break up itself.It sure looked bad.Of course, the reality, again, is a lot more nuanced. And, while everyone will ignore this (and I'm sure some people will make bogus accusations in the comments), the reality is that this isn't proof of Facebook's nefarious attempts to censor people it doesn't like or messages it doesn't like. It's proof of the impossibility of content moderation at scale. As Facebook explained, the original ad violated a Facebook policy that had nothing to do with the message it was sending: you're apparently not allowed to use Facebook's logo in an ad:

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Last week, I wrote about Elizabeth Warren's big plan to break up big tech and why I thought her plan (a) would not work and (b) was based on a fairly shocking number of factual errors. Not everyone agreed (indeed, many people have disagreed). Many of those who disagreed, though, seemed to only do so because they hate the big internet companies, and thus they seemed happy about any attack on them, no matter how pointless. Others attacked me personally, insisting that my detailed explanation of why I found Warren's plan laughably naive was really just because I "love big tech." Finally, some demanded to know what my plan would be. And while I think it's somewhat silly to imply that you cannot critique a bad plan if you can't come up with another plan (sometimes, doing nothing is the best plan), I've been meaning to write some more about this anyway, and here's a good opportunity.Contrary to the strawman beliefs some insist I have, I am quite worried about the market power of many large companies these days, and how that might be stifling competition. As I've argued for over twenty years on this site, the single biggest driver of innovation is competition. And I want to see more competition to get more innovation. My issue is that doing so through regulatory means is fraught with significant risks -- ones that could very much do the opposite. Highly regulated industries are not known for being competitive and innovative for the most part. They tend to enable only big entities -- who can deal with the regulations -- to exist and crowd out startups. On top of that, thanks to regulatory capture and the crony nature of our political system these days, you also end up with just a few big companies who now focus on what we've referred to in the past as political innovation rather than technological or entrepreneurial innovation. It's a recipe for stagnation, not innovation and competition.My second big concern with the plans people have been floating is that they ignore the reality of why some of the tech companies have gotten so big and so successful. For the most part, they're in highly networked industries, where it's not just "winner takes all" but in many ways size and dominance of the network is fundamental to their operation. Network effects can lead to dominant positions, for the fairly obvious reason that the bigger they are, the better they are for everyone involved. For all of Warren's talk of breaking up companies, note that she was only talking about chipping off a few of their peripheral acquisitions: not taking an axe to their core business.And that's because she recognizes that as much as people scream to "break up big tech," there's no reasonable way to do that without making the overall offerings a lot less useful for the public. How do you break up Facebook's social network? Do you say half the world can't use it and have to use the BookFace spinoff instead? You could, of course, cleave off Instagram and Whatsapp, but that doesn't really change Facebook's overall global dominance. The reason Facebook is so powerful is that it connects the entire globe. There is no place to make a reasonable cut to split that up. Google is powerful because of its search engine. How do you break that up? Do you say for searches on topic X you use Google, but for searches on topic Y you have to use Elgoog? You could cut off Doubleclick from Google, but then you still have a massive search engine and a massive internet ads company. And while I guess you could cut off Amazon's web services piece from it store, that doesn't change the main "competition" complaint most people have about Amazon, which is the size of its footprint in e-commerce. But again, it got there not through predatory practices, but because it's so convenient and easy for most people that they actually get tremendous benefit from it.But, that presents a dilemma. And while lots of people seem to think there are easy answers to this (just like they think there are easy answers to "content moderation") there are not. This is a really complex issue, and like nearly all super complex issues, the easy solutions tend to look appealing, while actually making everything a hell of a lot worse.So I will make a suggestion for how I'd like to "break up" big tech, while admitting that since this is a complex topic with no easy answer, I could be wrong. But so could everyone else. And I've been digging through the details on this stuff for many years now, and I do think my plan makes the most sense. Later this year, I have a big academic paper on this topic coming out with a lot more details, so in the meantime expect a bunch more posts on this topic leading up to that.The idea goes back to one I raised back in 2015 in the context of content moderation: that we need to move to a world of protocols, not platforms. This is the world of the earlier internet, dominated by open protocols with a variety of competitive apps built on top. Instead of Twitter, there was IRC. Instead of Reddit, there was Usenet. And you had a choice of clients and servers and could move around if you didn't like the policies of one or the other.In the world of protocols, you still get the global connectivity benefit, but without the lockdown control and silos (and, potentially, the questionable privacy practices). In a world of protocols, there may be a global network, but you get competition at every other level. You can have competitive servers, competitive apps and user interfaces, competitive filters, competitive business models, and competitive forms of data management. If you don't like how one app provider handles privacy, you move to another -- but because you're using the same protocol, you don't lose everything you're doing with it, you're just entering through a new door that you like better. If you don't like the way one provider handles content moderation, you change it or move to another.And, yes, I noted competition at the business model level as well -- because that's important. We could see lots of interesting attempts at creating different services with different business models that go beyond the limited options (pay with your data, freemium, advertising, etc.) today. One option might be in the form of cryptocurrency or token tied to the protocol. While I can already hear half of you rolling your eyes, this is a model that is at least worth exploring. A cryptocurreny or token tied to a protocol takes away much of the incentive for the really terrible business models everyone complains about. You don't need to spy on everyone if just getting more usage in general increases the value of the currency. And encouraging business models that don't require collecting data on everyone is something we should celebrate, not mock. But, cryptocurrency isn't the only such solution either. I've been playing around with a few attempts at new protocol-based systems these days that purposely eschew the cryptocurrency/token model, and are exploring other models instead. The point is that there are other ways of making this work, and more options is better.However, if we were in a world where the major services and functions we used online were protocols instead of platforms, it would move the power and control out to the ends of the network, rather than centralizing it on the servers of a few giant companies. We'd still get the benefits of the network effects of the systems, but without the centralized control. We'd still be able to get innovation at various levels, but without relying on a single entity to determine what's best. We'd still get the convenience of powerful services, but without the opaque decision making of a single entity. It's an approach that could actually work.That still leaves the question of how do we get there from here. And there are a lot of challenges in that. But I don't think declaring large platforms as "platform utilities" gets us any closer to that vision -- and if anything seems to drive us away from it. I'll be writing some more posts on how we get towards a world of protocols instead of platforms, and the many hurdles in the way, in the coming weeks and months. However, there are two key approaches to making it happen: either bottom up or top down. And both could work -- but both could be difficult.The bottom up approach is people designing new protocols from scratch and building a new userbase. That presents a huge number of challenges in terms of building up the userbase, but it's not impossible. New startups pop on the scene all the time, and some of them even succeed. And I already know of at least 6 or 7 attempts at building these kinds of protocols from scratch. And while they're all fairly small, some are building up at least some traction and are interesting to follow and experiment with. The benefit to this approach is you have no legacy to deal with, making things easier to design and the entire setup more nimble. The cons, obviously, are the lack of a userbase and the basic "empty room" problem: how do you get someone to use a social application when there's nothing to do there and no one to connect with?The "top down" approach would be to convince an existing internet giant to move towards such a world. It's unlikely that any company today would agree to flip the switch entirely and open up their platform into an open protocol. But I would argue that it's not as far out and unrealistic an idea as many assume. In the last six months, I've had in-depth conversations with four large internet companies about this approach, and they were surprisingly more open to at least considering what it would mean than I initially expected. And while I may go into more detail in later posts, I'll give three quick reasons why the big tech firms may actually decide it makes sense to give up their silos in the long run: