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We've covered the increasing reliance on tech to replace human judgment in the criminal justice system, and the news just keeps getting worse. The job of sentencing is being turned over to software owned by private contractors, which puts a non-governmental party between defendants and challenges to sentence length.The systems being used haven't been rigorously tested and are as prone to bias as the humans they're replacing. The system used by Washington, DC courts to sentence juvenile defendants hasn't been examined ever, and yet it's still being used to determine how long a person's freedom should be taken away.This system had been in place for 14 years before anyone challenged it. Defense lawyers found nothing that explained the court's confidence in using it to sentence juveniles.

Recently Wired had a pretty amazing cover article on the inside story on the DOJ's legal war against Backpage that is superbly well-written and quite interesting. Wired found the perfect reporter for this in Christine Biederman, who was once a staff reporter at one of the many alt weeklies owned by Michael Lacey and James Larkin -- the two owners of Backpage who are still facing federal charges over the site -- as well as a former assistant US attorney at the DOJ. Biederman understands all of the issues here deeply and does a great job laying them all out. I highly recommend you set aside some time to read the whole article, which gives a great backgrounder on Lacey and Larkin, how they built up an alt-weekly empire, only to see it fizzle, while then building out Backpage as a massive success -- and who now face criminal charges that raise all sorts of legal questions.For this post, however, I did want to focus on some of the legal issues. We've discussed Backpage a lot over the years, including questioning whether what it did was truly illegal. No one denies that the site was absolutely used for some fairly horrible things -- including sex trafficking. The questions, though, surround whether or not that's Backpage's responsibility -- and whether or not in shutting down the site, law enforcement actually shut down a useful tool in tracking down actual traffickers, making the trafficking problem worse. Biederman's piece also shows some of the moral panic around FOSTA, and raises questions about just how big the sex trafficking issue truly is and whether or not the government is abusing the civil asset forfeiture process to make it impossible for Lacey and Larkin to mount a defense. These are all topics that we've long covered on Techdirt.Let's start, though, with the legal attacks on the site, which began not with Backpage, but with a moral panic about the advertising on Craigslist -- which was eventually pressured into shutting down its adult ads section (after FOSTA passed, Craigslist went even further and shut down its entire Personals section). Cook County, Illinois Sheriff Thomas Dart sued Craigslist in 2009, in a case that was tossed out just months later thanks to Section 230 of the CDA (Dart later was one of the most aggressive in going after Backpage). He's quoted in the Wired article making no sense at all:

I've often made the point before that Nintendo hates you, dear Nintendo fan and general gamer. Between taking down fan-made levels, fan-made games, and going to war with all the ROMs everywhere, Nintendo values an overwhelmingly tight grip on its intellectual property rights far more than the natural desire by its own fans to express their fandom. The speed and reliability of Nintendo's lawyerly involvement has become something of a legend on the internet, with folks that make these expressions of fandom often joking upon release that it's only a matter of time before the suits come calling.This held true with Mario Royale, a delightfully simple little web game created by a fan that allowed players to play through Mario Bros. levels alongside up to 74 other simultaneous players. The classic game had never been used for this sort of thing and it was quite interesting to watch how it all worked. It's also worth noting that the game was playable for free, meaning there was no commercial aspect to it. Despite that, you all know what happened next.

Well, here we go again. According to Politico, on Wednesday, at Trump's National Security Council meeting, a proposal was floated that the administration should back legislation that would outlaw encryption. Of course, that's not how it'll be framed should they actually decide to go down this path. Instead, they'll be nonsense about "responsible encryption" and "lawful access." But, make no mistake, what's being proposed is outlawing encryption.

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One of the things about copyright that copyright supporters really hate to discuss is just how problematic the whole idea of getting copyrights on photographs can be. They basically have to twist themselves into all sorts of logical knots just to justify it in the first place. You can't get a copyright on factual information and -- some might argue -- what is a photograph but a capturing of factual information. That photograph is a factual representation of what the lens captured. To date, the way that courts have dealt with this fundamental problem is either (a) to ignore it, or (b) to construct flimsy logical houses of cards arguing that the copyright actually applies to things like the "framing" and (in some cases) lighting choices or decisions positioning of the objects in a photograph of the photographer (if those things were, indeed, done by the photographer). And you can kind of understand the thinking on that when the photographer really does "design" whatever is being photographed. But it gets more questionable when you're talking about "nature" photographs or just general snapshots walking around.Some of this oddity is coming out in a somewhat weird, somewhat amusing case that the Fashion Law Blog has been following over the last few months. Reading through the filings in the case (some of which are embedded below) leads to a bunch of fairly absurd arguments (on both sides), many of which come out of the fundamental troubles with allowing copyright on snapshot photos in the first place. This case involves model Gigi Hadid, who is frequently photographed by the paparazzi. One day last fall, she was approached by a photographer and played along, "posing" for the photographer. The next day she found the photo online, cropped about 50% of the photo (so it was even more focused on her) and posted it to her Instagram feed. In January, an organization called Xclusive-Lee sued her for infringement.There have been all sorts of procedural problems with the lawsuit, and I am expecting it to be tossed on those alone, without touching on most of the other issues that are popping up in the case, so let's start there. First off, as we discussed back in March, the Supreme Court has said that you can't sue until you have a copyright registration (and not just a mere application for that registration). In this case, the copyright in question has only been applied for, not issued. Xclusive-Lee's lawyers insist that because they filed the case before the Supreme Court ruled on that issue it's all fine and dandy, but that's not how the law works. Separately, the complaint doesn't establish that Xclusive-Lee actually holds the copyright on the image (it's not even clear who Xclusive-Lee is). Hadid's filings note that "Xclusive-Lee" did not take the photograph, and that's not even the name on the copyright registration form. And Xclusive-Lee has not provided any proof (such as a copyright assignment) to show that it holds the actual copyright here. That seems kind of like a big deal. Xclusive-Lee's lawyers insist that they don't need to show such evidence up front and can do it later, which seems like a weird response. Why not just show the copyright assignment upfront?Separately, the judge has repeatedly had to scold the lawyers for Xclusive-Lee for not following the rules, which can't bode well:I may not be a lawyer, but I would expect that judges don't very much like it when lawyers repeatedly fail to follow basic instructions.For what it's worth, one of the lawyers for Xclusive-Lee is David Deal who has also been associated with Pixsy in the past. Pixsy is one of those scrape the internet and threaten to sue trolling operations out there.So given all the procedural shenanigans described above, it would not surprise me at all if the case just gets tossed on those grounds. It seems like that would be the easiest (and most likely correct) way the court would go in this situation.However, in Hadid's motion to dismiss, Hadid's lawyers also raise a fair use argument that is, shall we say, a little "out there." To be clear, I do think that there are credible fair use arguments for Hadid's usage here, but I'm not sure that Hadid's lawyers make that credible case. Instead, they suggest a bunch of things that if the court ever gets to a fair use analysis, could raise a lot of issues.However, in dealing with the second fair use factor (the nature of the work), Hadid's lawyers strip away decades of everyone pretending that photographs deserve copyright and point out that it's simply capturing facts.

While many appointments of the Trump administration lack even marginal competence to complete the duties for which they're assigned, the same can't be said of FCC boss Ajit Pai. While Pai's industry-cozy policies may be historically unpopular, the efficiency with which Pai has dismantled telecom consumer protections (and FCC authority in general) can't be denied. Having been a vanilla commissioner for years before being appointed agency head, Pai knows precisely which rules to demolish--and how to obtain the maximum benefit for his core constituents: AT&T, Verizon, Comcast, T-Mobile, Sprint, and Charter Spectrum.Gutting net neutrality, killing efforts to bring competition to the cable box, even weakening the definition of competition to aid industry incumbents are but a taste of what Pai has been up to the last few years. Many of these efforts are subtle enough to fall under the radar, even if the impact of the decisions are profoundly negative. Case in point: last week, the FCC announced that the agency would soon vote on whether to preempt a San Francisco city ordinance designed to promote broadband competition in apartments, condos, and other multi-unit buildings.Article 52, first passed in December of 2016, allows ISPs to use existing building wiring to serve customers, even if it's being used by another ISP. The ruling effectively created an "open access" model inside of San Francisco buildings to help drive a bit more broadband competition. Part of the provision prevents landlords from signing exclusivity deals with incumbent ISPs, something that's been a problem (one the FCC refused to seriously address) for decades (there's a great primer on this here by Susan Crawford).Enter Ajit Pai, whose new proposal would pre-empt San Francisco's ordinance as a favor to industry incumbents who don't like the added competition. And, like so many things Pai does (the "restoring internet freedom" net neutrality repeal comes quickly to mind), his office tried to claim the proposal does the exact opposite of what it actually does:

The NSA may have extremely belatedly decided to give up its bulk phone records collection, but that's only after years of dysfunction, abuse, and escalating uselessness. The problems with the NSA's collection of phone records dates back to at least 2004 -- a 14-year streak of violations that may only now be coming to an end because of the NSA's voluntary sunsetting.For years, the NSA treated the phone records collection as essential to national security. Not much was said about it until Ed Snowden leaked a court order showing the NSA was sweeping up every record possessed by Verizon's business services wing. Then things got heated and the NSA was unable to justify its continued existence.Once the program was modified, the NSA had even more trouble collecting records lawfully. It may have been limited to performing targeted searches, but it was still somehow able to over-collect. Whether this was due to the NSA's filtering of returned search results or errors on the telco side when providing records, the NSA hasn't definitively said. But it did destroy millions of records it never should have had in the first place, strongly suggesting the agency was still collecting in bulk, despite legislative changes.The NSA may be winding the program down, but it's not going out without extending its violation streak, as John Bacon reports for USA Today.

For some time now, we've been discussing gaming company Epic's entry into the gaming platform wars. Epic made waves shortly after the launch of the Epic Store when it began gobbling up exclusivity deals for games, whereas the PC gaming industry has mostly been free from the kind of exclusivity wars that have plagued the console gaming industry. Steam, the enormous competitor in the market, responded to Epic getting some AAA game exclusive deals for the first 6 months after launch by complaining that its new rival's strategy was hurting gamers more than anything else. In response, Epic's Tim Sweeney jumped on Twitter and promised to end the exclusive game strategy if Valve's Steam platform would offer gamemakers the same more generous split on revenue that Epic is offering. See, Steam offers game publishers roughly 70% of game revenue back to the publisher to be on its platform, whereas Epic offers a flat 88%.This initial stance from Sweeney was laid out as altruism, with claims that what Epic was really after was a better gaming marketplace to allow more reinvestment in games, more games for the public, and thereby a happier gaming public. Much of the gaming community met this argument with narrow eyes. Epic, after all, is a business and businesses are designed to make money. Sweeney has since followed up on Epic's stance in a recent tweetstorm responding to public complaints about exclusive games. There's a lot in the 9 tweets from Sweeney, but let's start with the rationale for exclusive games on the Epic Store.

The NY Times is running an "Op-Eds From the Future" series, which is a creative idea. In a recent one, Cory Doctorow matched the theme perfectly by highlighting what world looks like without an open internet, when companies are forced to monitor and filter everything. The point he's making is that, especially with changing laws in the EU and some of the proposals in the US, the liability for hosting content will become too great, and we'll shift from an internet that is open for communmications to one that is a "broacast" world of carefully vetted and fully "licensed" content. His title makes the premise clear: I Shouldn’t Have to Publish This in The New York Times.

Preliminary restraining orders targeting speech are almost always unconstitutional. It's not just the First Amendment getting the shaft when judges do this, but the adversarial court process which is supposed to allow defendants to present a rebuttal before the judge starts handing out remedies.Waiting until the facts are in is a good rule of thumb just about anywhere, but especially in this case where a judge handed out a preliminary injunction after having seen nothing more than a super-vague complaint. The defendant -- accused of libel per se and various forms of secondhand harassment -- now has the ACLU on his side. (via The Volokh Conspiracy)

In 2017, FCC head Ajit Pai came under fire for filling a new "Broadband Deployment Advisory Council" (BDAC) task force with oodles of industry representatives, but few if any consumer representatives or local town or city officials. Not too surprisingly the panel saw a significant amount of controversy, several protest resignations, and the arrest of a one-time panel chair for fraud, but the panel itself never actually accomplished much of anything to address the problem it was created for.This week more data emerged on the details behind the arrest of Pai's former council head Elizabeth Ann Pierce. Pierce, the former CEO of Alaskan telecom provider Quintillion, is headed to jail after a pretty elaborate fraud scheme that bilked numerous investors out of some significant cash. Pierce effectively conned numerous parties out of millions by forging sales contracts, used a significant chunk of the money for "personal expenses," then hid the scope of the fraud from her own colleagues and other Quintillion executives:

In a move that's indicative of the tech companies' newfound willingness to roll over for overseas governments, Facebook will be handing user data to the French government to help it chase down people who've posted illegal words.

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In a move that will surprise absolutely no one, our President once again blindly and incorrectly lashed out at big internet companies and said that they should be sued for what appears to be the illegal action of having employees who didn't vote for him. I mean, that's not what he said, but that seems to be the only real reasoning behind the argument.

We've noted for a long time that the wireless industry is prone to being fairly lax on security and consumer privacy. One example is the recent rabbit hole of a scandal related to the industry's treatment of user location data, which carriers have long sold to a wide array of middlemen without much thought as to how this data could be (and routinely is) abused. Another example is the industry's refusal to address the longstanding flaws in Signaling System 7 (SS7, or Common Channel Signalling System 7 in the US), a series of protocols hackers can exploit to track user location, dodge encryption, and even record private conversations.This week, carriers were once again exposed for not being the shining beacons of security they tend to advertise themselves as. A new report emerged this week showcasing how, for years, hackers have been exploiting substandard security at more than 10 global wireless carriers to obtain massive troves of data on specific targets of interest. Researchers at Boston-based Cybereason, who first discovered the operation, say the hackers exploited a vulnerability on an internet-connected web server to gain a foothold into each cell providers internal network. Once inside, they exploited numerous machines to gain a deeper and deeper access to the cell network:

We warned folks that these big attempts to "regulate" the internet as a way to "punish" Google and Facebook would only help those companies. Last fall, about six months into the GDPR, we noted that there appeared to be one big winner from the law: Google. And now, the Wall Street Journal notes that it's increasingly looking like Facebook and Google have grown thanks to the GDPR, while the competition has been wiped out.

Journalists digging into the numbers behind vague forfeiture reports have uncovered more unsurprising details about the practice. Since the state of Texas doesn't require reporting of anything more than overall profits from forfeitures, reporters at the Texas Tribune did it the hard way. Reading through thousands of pages of court filings, the paper was able to tease out the granular detail law enforcement agencies don't like the public seeing.What the Texas Tribune uncovered is exactly the reasons asset forfeiture is both problematic and incredibly popular with law enforcement agencies. Cop shop PR officers may hold press conferences to announce things like the $1.2 million in cash seized from a traffic stop, they're very quiet about the day-to-day work of forfeiture. The reality is the $50 million a year taken through forfeiture in the state of Texas is composed of hundreds of very small cash seizures.

Last fall we were happy to see the 11th Circuit rule that, obviously, a state's official laws couldn't be covered by copyright. As you may recall, the case involved the state of Georgia and Carl Malamud's Public.Resource.Org. Malamud has spent years helping to make the law more readily available to the public -- and has been on the receiving end of a bunch of lawsuits for his troubles. The case in Georgia had some slightly odd facts in that the state said that its laws were freely available, but it contracted out to a private company, LexisNexis, to produce an "annotated" version of the law. LexisNexis then got a copyright on the annotations, which it then assigned to the state. Then -- and this is the important part -- the state released the "Official Code of Georgia Annotated" (OCGA) as the only "official" version of the laws. When new laws were passed, they were specifically written to be included in the OCGA. While the lower court said that the annotations could be covered by copyright, and thus Malamud publishing a free online version was infringing, the 11th Circuit easily reversed. It didn't even say something more narrow, like arguing that the republishing was fair use. It said you can't copyright the law at all. Period. Full stop.

I don't often mention it here, because it's way off-topic, but I'm a bit obsessed with baseball -- and only rarely does that cross over into a Techdirt related topic, such as when MLB tried to claim it owned stats (spoiler alert: it does not). Anyway, a month or two ago I came across a wonderful Twitter feed called @Jomboy_ who mostly tweets out (funny and clever) stuff about the NY Yankees, but also every day or so puts out really amazing and hilarious "breakdown" videos about events throughout baseball. These vignettes are usually less than two minutes long, and frequently feature what appear to be his amazingly accurate lip-reading skills (not to mention capturing little things happening in the background) and also a bit of well-placed profanity (if you happen to be listening in a workplace that might not appreciate that). I usually watch them on Twitter, but for embedding purposes, it's easier to use YouTube (where he also posts the videos), so I'll use some examples from there (and intersperse a few, because if you like baseball, they're wonderful). Here's one of his "breakdowns" of the only "intentional balk" I've ever seen:I even randomly tweeted out that any baseball fans should check out his account just last week. And, of course, nothing in all of that makes this a Techdirt story. But I was somewhat amazed, just a day after I tweeted about Jomboy, to see an article at Fangraphs that is (1) all about Jomboy (whose real name is apparently Jimmy O'Brien) but, more importantly (2) totally relevant to Techdirt. Basically, it tells the story of how Major League Baseball's obsessive desire to own and control everything (see earlier note about its silly, years-long failed battle to own freaking stats) is contributing to baseball's continuing failure to be of any interest at all to a younger generation -- in part because baseball content rarely has shown up on social media.This might sound a bit surprising to folks who do follow the sports business market. From the outside, many people have pointed out that Major League Baseball was really the first major sports league to embrace the internet -- and it did so successfully from a business standpoint. It built out MLB Advanced Media, which was such a good platform that other leagues even started using it, leading to it being called BAMTech, and Disney buying a majority share in 2017 for a big chunk of change. And, to be clear, MLB does a really good job with its streaming platform, that seems to work really well. But with that platform came way too much control -- and it has leveraged that to shut down things happening outside of its control. And that includes a lot of fan stuff.

The Russian government sure loves its registration. If anyone wants to do anything involving the written (and/or broadcasted) word in Russia, the government wants to know who you are. That makes it easier to find you should you displease the Russian government and/or its bear-riding autocrat.It's so great to be part of the new New World Order. Gone are the days of the Soviet Union and its direct control of the nation's press outlets. We're living in a new era of quasi-, mostly-mob-fueled-capitalism in Russia. And with it comes… the direct control of the nation's press outlets.The Russian government has demanded all bloggers register with the government in order to continue blogging. The government has also demanded all Wi-Fi networks be registered with the government. So it goes without saying all domestic press is registered with the government, but we'll say it anyway since unregistered press outfits are being hit with hefty fines for not playing ball with their overlords.That takes care of the domestic "problem." But what about all those pesky extranationals whose printed words might be somehow troublesome to the Russian Republic? Well, Putin et al have a solution whipped up to keep dirty foreigners from apprising Russian citizens about the sad state of their country under its autocratic leadership.

After lots and lots of speculation, Facebook finally officially announced its cryptocurrency project last week, with a big event and a white paper that loosely describes the plans for the cryptocurrency called Libra. There was a lot to discuss, so in the spirit of slow news, I wanted to take some time to actually digest the plans before opining on it more thoroughly. Nearly all of the immediate reaction to the plan that I saw was not just negative, but mockingly so. Lots of jokes about "ZuckBucks" and the most common line of all: "who would actually trust Facebook with your money."Having spent time actually reading the white paper, as well as much of the commentary around it, as well as talking to a bunch of different people -- some who are supportive of the program, some who are not at all supportive, and one very knowledgeable friend who basically rated the whole program as a big "meh" -- my initial take is that the effort is in many ways a lot more interesting than I expected, but a lot less interesting than I hoped, and I don't think anyone can really have much of a sense of what will become of it until we learn more.More Interesting Than ExpectedSo, let's start with why it's a lot more interesting than I expected. And I'll note that, in addition to reading the white paper, I also highly recommend John Constine's writeup about Libra at TechCrunch, which is by far the most thorough and detailed analysis of the program. So what made Libra more interesting than I expected is that you can tell that a massive amount of effort and thought went into dealing with a single giant question: no one's going to trust this, because no one trusts Facebook. The people designing this clearly knew that their biggest challenge was the fact that there's massive global distrust of Facebook, and really bent over backwards to respond to that. I had kind of expected -- like many big companies -- that the koolaid inside would lead them to pretend that the distrust and hatred directed towards the company wasn't that big of a deal. But, no, it's clear that from the start, this was designed to answer many of the questions raised by "the... but why would anyone trust Facebook" question.Indeed, in a big Wired "behind the scenes" profile of the Libra project, Libra creator Dave Marcus more or less says exactly that:

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The greatest myth the RIAA and its friends ever pulled was convincing people -- including the press and some gullible musicians -- that it represented the best interests of artists and musicians. You would think musicians would have learned not to trust the RIAA long ago, especially given that its current CEO, Mitch Glazier, got his original job at the RIAA just months after he literally secretly inserted four words into an unrelated bill that literally stole the copyright from millions of musicians. Uproar from actual musicians finally got the RIAA to back down and Congress "corrected" Glazier's dirty work. Glazier's been at the RIAA ever since, and if you think the RIAA has artist's interests in mind, you've not been paying attention.A bunch of musicians are now suing the RIAA's largest member, Universal Music, for yet another way it profited off their works and didn't share the windfall. The story is kind of crazy all around. Last week, the NY Times Magazine had an incredible long read about a massive fire at Universal Studios in 2008 that literally wiped out hundreds of thousands of master recordings. Even though Universal Studios and Universal Music Group are two totally separate companies these days, apparently UMG stored its archives on the Universal Studios lot, even years after the two had been split apart.As the NY Times details, partly because of this split, nearly all of the media coverage skipped over the fact that a warehouse housing hundreds of thousands of original recordings was wiped out -- and the only reporter who did mention it, Deadline.com's Nikki Finke, later posted a correction, saying that, according to Universal Music, "there was little lost from UMG's vault." Universal Music was even more explicit in talking to Billboard saying: "We had no loss thankfully."However, as the NY Times is now reporting, that was a blatant coverup by Universal Music, which lost a ton of old masters.

Fifth-generation wireless (5G) will be a good thing when it finally arrives at scale in a few years, in that faster, more reliable networks are always good. But at the same time, 5G's capabilities have been comically over-hyped by cellular carriers and network hardware vendors looking to sell more cell phones and network hardware. Cellular carriers appear to be in a race to to broadly misrepresent not only what 5G is capable of--but where and when it will actually be available to the public at large.Verizon, who has scolded other companies for over-hyping the technology, has been one of the biggest culprits in over-hyping 5G. On any given day Verizon's executives and marketing efforts can be found claiming that 5G will revolutionize the planet, magically enabling the smart cities and smart cars of tomorrow. In recent months, the company's marketing has proclaimed that 5G will somehow result in massive evolutionary leaps in medical technology, its ads going so far as to suggest that surgeons will soon be more accurate:

Intellectual property law professor Sarah Burstein tweeted over the weekend correctly mocking a truly ridiculous tweet from the European Intellectual Property Office, hyping up a film it created that purports to show a drab, creativeless world without any intellectual property.The tweet actually just shows a 16 second clip from what appears to be a nearly 10 minute "film" that the EU IPO actually released back in April. You can view the whole thing here, though I warn you that it is 10 minutes of your life that you will not get back, and it is so dumb that you'll really wish you could get them back (I, at least, watched it on double speed). The film, called "IPIDENTICAL: Imagine a world without creativity" is supposed to be an example of what the world would look like without intellectual property. In this world, everything is the same. There is one song in the world, called "The Song" and that's it. There is one movie, "The Movie." There is one car in one color. Everyone wears the same clothes. All products on store shelves are identical. See? How dystopian.The "tension" in the movie is that the main character has brief nostalgic memories of her dad maybe singing a different song when she was a little girl. That song -- called "The Ultimate Song" -- is lost to history since there is only "The Song." However, in a record shop one day (why are there even record shops? Who the fuck knows?) she sees at the bottom of a stack of "The Song" singles, one sleeve that looks different. OH MY GOD! It's "The Ultimate Song." She grabs it, and rushes home, excited to hear that song from her childhood. That song is exciting and full of life and you can dance to it, rather than "The Song" of this world, which apparently was composed on an organ grinder. Except... she puts The Ultimate Song on her record player... and the organ grinder plays instead of what she expected.Isn't copyright great?The film is a wee bit heavy handed. It's also ridiculous. It's also... apparently paid for and promoted by EU bureaucrats, which raises a shit ton of questions.First off, anyone with even the slightest familiarity with history knows it's bullshit. I mean, there was pretty widespread creativity prior to there being intellectual property laws. William Shakespeare wrote everything he wrote without copyright. He didn't just write "The Play" and be done with it. Indeed, evidence suggests that the lack of copyright was partly responsible for him writing so much since he had to keep producing new works to satiate his audience. And you don't even need to look at history. There have been lots of studies of creative arenas today that don't rely on intellectual property, from fashion to comedy to magic to cooking -- and they've pretty much all found that categories without intellectual property protections actually generate more output and more creativity because you have to keep creating, rather than rest on your laurels. We've written about some of that in the past, but if you're looking for sources, The Knockoff Economy book by Kal Raustiala and Chris Sprigman is a good start, as is Creativity Without Law, which is a collection of case studies about creativity outside of intellectual property.And, look, I get it: it's the EU Intellectual Property Office. Of course, they're going to think the world revolves around copyright, patents and trademarks. But is it really that big a deal to expect that government bureaucrats should at least be partially reality based? And is it too much to expect that a government agency shouldn't be spending taxpayer dollars on blatantly false propaganda that is so laughable as to only serve to lead more people to lose respect for intellectual property?But, perhaps the most damning of all: copyright wasn't necessary to make this bit of insane propaganda. Notice that the EU IPO posted the film for free to YouTube, and they're tweeting out clips of it. The reason they made this film is for propaganda (which some might refer to as "educational") purposes, and they want as many people as possible to see it. There is no need for copyright on the film. They're not selling it or licensing it to anyone. The incentive to create it was wholly separate from copyright -- as is true of nearly all content created today. It was created not because they had an exclusive right, but because they wanted people to see it.Someone in the EU should really ask the IPO how much money was spent on this bit of propaganda. For what it's worth, it doesn't seem to be having its intended effect. I've found tons of tweets mocking the EU IPO, but none in support so far.

There is something about the beer and liquor industries that seems to attract unfortunate trademark disputes. The craft beer industry in particular has been recently plagued with these disputes, in large part due to the growth that industry has undergone coupled with once-small craft breweries going corporate and retaining aggressive legal teams. Many of the disputes are intra-industry, with one brewery attacking another over a perceived trademark issue.But that's not always the case. Occasionally we also see a trademark dispute needlessly erupt from a source outside the beer industry. That is most certainly the case with the University of Idaho, which has the mascot name "The Vandals", for some reason sending a cease and desist notice to an alumnus looking to open his Vandal Beer company.

This should have been pretty much a foregone conclusion after the Supreme Court's ruling two years ago in Simon Tam's case about The Slants trademark. In that case, the Supreme court ruled that part of the Lanham Act that said the government could deny trademarks on "disparaging" marks was an unconstitutional violation of the First Amendment. However, that ruling was a bit messy. The court agreed that the law was unconstitutional under the 1st Amendment, but had two different theories as to why, neither of which got a majority. So the specific law that said the PTO could reject "disparaging" marks was tossed, but technically other content-based restrictions, such as those for "immoral and scandalous" remarks remained on the books. So, pretty quickly that got challenged as well, and now the Supreme Court instead has said that's unconstitutional too.The basic reasoning should be obvious: under the First Amendment, the government cannot be in the business of judging the appropriateness of content (for what it's worth, this is also why Senator Josh Hawley's silly bill is unconstitutional). Here, the majority decision, written by Justice Kagan, made pretty quick work of the ruling, basically just saying that the same thing that they said in the Tam case applies here as well.

Josh Hawley's bill that aims to force "political neutrality" on social media platforms has caused a lot of stir for something so obviously unconstitutional and doomed to failure. There are so many problems with the bill that we've got three experts this week — Daphne Keller, Jeffrey Koseff, and Aaron Mackey — to help dig into all the ways this attack on Section 230 sucks.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.

Facebook promised to clean up its platform to make it more family-friendly. And it has done so, with varying degrees of success. If anything, it's tried too hard and caused a lot of collateral damage to content that should never have been found objectionable in the first place.For that effort, it has been vilified by everyone from the President of the United States to angry individuals who can't seem to find a better outlet for their ignorance. Like other social media companies attempting to do the impossible, it's getting sued for running its business the way it wants to.Jason Fyk is one of several plaintiffs who have sued social media companies for removing their posts or banning their accounts. Fyk is a little different than the others we've covered recently. Fyk is a self-made millionaire whose business model relies almost entirely on Facebook.As the creator of WTFNews (and dozens of other Facebook pages), Fyk is perhaps more directly affected by content removal than the average misguided plaintiff. When Facebook takes down content you're hoping will generate clicks and cash, it hurts your bottom line. Fyk is inextricably intertwined with Facebook, but that fact does not make his lawsuit against the company more meritworthy than those claiming anti-conservative bias or hoping to hold social media platforms directly responsibile for acts of terrorism.As Eric Goldman explains, the content Fyk is suing over is precisely the sort of thing you'd expect Facebook to find and remove, given its history of moderation.

There seems to be a general argument, perhaps believed by folks at Google and Facebook in particular, that they need to suck up all this data about us to provide more and more targeted advertising. I'm still not at all convinced that's true. Earlier this year, I suggested that Google and Facebook might be better off if they just admitted that targeted advertising didn't work as well as people like to pretend it works. The fact is that it doesn't work all that well, and comes with massive costs in terms of everyone thinking that all these companies want to do is suck up more and more data. And the "advantage" over other forms of advertising (contextual, brand, etc.) are really not that great. Earlier this month we highlighted a study that showed that, for publishers, targeted advertising didn't show any real benefit, and that it was mainly being used to prop up the fees middlemen got, in being able to claim some magic sauce to better target ads.Now, the NY Times has published an op-ed by DuckDuckGo CEO, Gabriel Weinberg making the exact same point: the internet doesn't need creepy advertising to have a workable business model. Indeed, what made Google a success in the first place was the fact that its non-creepy, non-privacy instrusive contextual advertising was so freaking profitable because it worked amazingly well:

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Read our new report on intermediary liability »We've obviously been talking a lot about Section 230 of the Communications Decency Act over the past few years -- and it is often credited as being the most important law for the internet. Jeff Kosseff's recent book calls it "the 26 words that created the internet," while David Post once declared that Section 230 probably "created a trillion dollars or so of value." We've talked a lot about how the real benefits of Section 230 are not to the internet companies themselves, but to the public's free speech rights, but over the last few years it's bugged me that there wasn't a better attempt to measure the actual economic impact of Section 230 and other intermediary liability regimes.Today, in partnership with NetChoice, we're launching our new report: Don't Shoot the Message Board, that attempts to explore what the data shows concerning the economic benefits of Section 230. We chose the name because it's perfectly fitting. Section 230 was, literally, written and pushed by (then) Reps. Chris Cox and Ron Wyden in response to the awful ruling in the Stratton Oakmont case, which suggested that any company hosting a message board could be found liable for any of the content on that message board. Similarly, the common phrase is "don't shoot the messenger," which is very much about not blaming the party merely delivering the message, as opposed to creating or causing the message. Putting liability on intermediaries is very much about blaming the messenger for actions of someone else.To provide some actual data for this debate, the report first compares a few different intermediary liability regimes to see what we can parse out. It starts with looking at the US vs. the EU. In the US, we have CDA 230 for most platforms, and DMCA 512 for copyright-related platforms. In the EU, they have the E-Commerce Directive (and soon they'll have the implementations of the Copyright Directive, but this report looks at the state of things before that). In many ways the intermediary liability in the E-Commerce Directive is much more similar to the DMCA in the US than CDA 230. Using a variety of datasets and comparison points, we found that CDA 230 appears to have resulted in significantly higher investment in US internet companies who rely on CDA 230. Our data suggests CDA 230 alone is probably responsible for two to three times more investment in the US than the EU. It also drove much higher levels of investment as companies in our sample were five times as likely to raise over $10 million in the US and nearly ten times as likely to raise over $100 million than their counterparts in the EU.Tellingly, when comparing copyright-focused platforms, where the liability standards are similar (or, at least were similar, prior to the Copyright Directive), we found EU companies did much better compared to their American counterparts. In other words, it appears that different choices for liability regimes can have a major impact on the types of investment and how much is invested. One reason why many of the big music platforms may have come out of the EU, rather than the US, is that the US's decisions on intermediary liability no longer gave the US an advantage for those kinds of platforms. In short: the decision to offer fewer liability protections in the US drove those investment dollars elsewhere.The paper also compares the DMCA and the CDA in the US alone, to see if there's a major difference in spurring investment -- and we found clear evidence that having these two different regimes resulted in much more investment focused on platforms that rely on CDA 230 (social media, communications platforms) as compared to content based platforms where the DMCA is of greater importance. There is obviously overlap, as many platforms rely on both laws, but when breaking out music companies vs. cloud computing, cloud storage, e-commerce and social media companies, we found over and over again that the latter received more investment, were more successful in the long run, more likely to have a successful exit and less likely to shut down. In other words, having the strong protections of CDA 230 seemed to help lead to more successful companies, and thus, more innovation.To back up these findings, we looked at a variety of countries where a major change -- either from a key court ruling or changes in the law -- created a sudden shift in intermediary liability protections, and then did a before-and-after analysis of the impact on investment and startups in those markets. Once again, the findings were more or less what we expected. When a country strengthened the protections for intermediaries, investment went up, the number of startups increased and there was greater innovation. When a country removed or weakened such protections, investment dropped. Noticeably.I should note that there were some exceptions to this rule -- and that happened mostly where there wasn't an existing strong startup ecosystem (such as Argentina). There, when intermediary liability laws were strengthened, there was little evidence of a sudden influx of investment. So, that suggests that strong intermediary liability protections are important, but not the only important thing, in driving greater innovation and investment.As we note in the paper, this is not meant to be the definitive look at these issues. There are many, many different factors and variables that play into the startup and innovation ecosystems. However, there was so little data on the direct impact of things like Section 230 that we thought it would be helpful in furthering the debate to at least have some data-driven research into the impact.At a time when politicians around the globe are suddenly increasingly interested in weakening intermediary liability protections, they should at least consider what that might do to investment, innovation and jobs. Our new report suggests weakening such protections may very well be "shooting the message board."

We've already noted extensively how the "race to fifth generation wireless (5G)" is kind of a dumb thing. While 5G is important in the way that faster, better networks are always important, the purported Earth-rattling benefits of the technology have been painfully over-hyped. And they've been painfully over-hyped largely for two reasons: one, mobile carriers want to give a kick to stalling cellphone sales numbers, and network hardware vendors like Cisco want to drive the adoption of new, more expensive, telecom hardware.The "race to 5G" isn't a race. And even if it were, our broadband maps are so intentionally terrible, we'd have no idea if and when we'd won it. Regardless, 5G has subsequently become a sort of magic pixie dust of tech policy conversations, justifying all manner of sometimes dubious policy. But the underlying desire to simply sell more kit has also infected the Trump administration's protectionist attacks on companies like Huawei, which is based on about 40% actual cybersecurity concerns, and 60% lobbying efforts by US hardware vendors that don't want to compete with cheaper Chinese hardware.The Trump administration's war on Chinese network manufacturers has not been subtle, even though evidence supporting wholesale spying allegations against companies like Huawei has been arguably lacking. This week rumblings emerged that the Trump administration would soon be accelerating this effort by potentially banning absolutely any Chinese-made hardware from being used in US 5G networks, at all:

The UK government has adopted a spin on asset forfeiture so brazenly abusive of citizens, American cops are probably kicking themselves for not thinking of it first.Dutch law enforcement raised the bar for forfeiture-related audacity early last year when they promised to start taking the literal clothes off people's back if it didn't seem like they had the (legal) funds to afford high-end designer wear. Dutch officials said a lot of things about gaudy timepieces but made it clear shirts and pants might follow if deemed sufficiently expensive.The UK has this beat. As Walter Olson opines for the Washington Examiner, the UK plan does away with all the comparative politeness of American asset forfeiture. There will be no fishing expeditions masquerading as traffic stops. There will be no pre-dawn raids predicated on tips by informants whose trustworthiness is only exceeded by their willingness to commit crimes using taxpayer dollars.As Olson points out, all UK law enforcement needs to do is claim "You can't afford that!" in front of a sufficiently-credulous magistrate.

The Department of the Interior is still trying to remove the word "freedom" from "Freedom of Information Act." The first step is removing the word "information."Earlier this year, the DOI tried to sneak past a rewrite of FOIA by hiding a request in the federal register. It would only apply to the DOI, hence the lack of legislative noise or heads up to the public. Under the guise of "ensuring compliance" with the law, the DOI wanted the power to unilaterally reject any request it found "burdensome."Faced with an influx of requests, the DOI decided to double down on non-compliance. Rather than route more staff to the overburdened FOIA response team, the DOI decided it would be better served by tossing as many requests in the trashcan as possible.A few months have passed, but the Interior Department's attitude towards transparency hasn't improved. In fact, it's gotten worse. The DOI's best and brightest continue to work tirelessly towards ensuring as little information is freed as is humanly possible. Roll Call, which first exposed this underhanded tactic in May, has more details on the DOI's flagrant disregard for FOIA's statutory requirements.

Techdirt has been covering the roll-out of the extraordinarily comprehensive digital surveillance systems in China for many years. It's hardly news that the Chinese authorities continue to deploy the latest technologies in order to bolster their control. Many of the same approaches to surveillance are being tried in the special administrative region of Hong Kong. A British colony for 156 years, it was handed back to China in 1997 on the understanding that there would be "one country, two systems": Hong Kong would be part of China, but it would retain its very different economic and administrative systems for at least 50 years.Well, that was the theory. In practice, Xi Jinping is clearly unwilling to wait that long, and has been asserting more and more control over Hong Kong and its people. In 2014, this provoked the youth-led "Umbrella Movement", which sought to fight interference by the Chinese authorities in Hong Kong's political system. More recently, there have been even bigger protests over a planned law that would allow extradition from Hong Kong to China. This time, though, there has been an important development. The protesters know they are increasingly under surveillance online and in the street -- and are actively taking counter-measures:

The long history of abuse and misconduct by DHS components stretches back for years. Agencies like ICE, CBP, and the TSA have never not been abusing their power to violate rights, circumvent the protections of the legal system, or just treat everyone like garbage for national security reasons.Why has nothing gotten better? Well, if you're the DHS, you've tried nothing and you're all out of ideas. The latest report [PDF] by the DHS Inspector General understates the issue. The title says the DHS needs to "improve" its oversight of misconduct and discipline. Start with the baseline low enough and any incremental forward motion is an improvement.Reading through the report, it's apparent the DHS simply doesn't care what abuses happen on its watch. No one in the agency -- not even those specifically tasked with following up on allegations of misconduct -- seems to think it's their job to follow up on allegations of misconduct.

Senator Josh Hawley's ridiculous and unconstitutional bill to remove CDA Section 230 protections from internet giants was clearly designed to appeal to conservative voters who have been fed a nonstop myth that the big internet platforms are "targeting" them for their conservative views, when the reality is that the platforms are mostly targeting trolls, harassers, Nazis, and assholes. If those factors are disproportionately impacting Republicans, then perhaps that's more an issue for the Republican party than the internet platforms.Either way, given that the myth that platforms are "targeting" conservatives has some traction, it seems likely that Hawley thought the conservative movement and conservative organizations would likely rush in to support his nonsense bill. It appears he miscalculated. FreedomWorks, the organization closely associated with the Tea Party movement put out a tweet mocking Hawley for thinking "conservatives are too stupid to realize he's trying to kill free speech online."

US social media companies are continuing to act as proxy censors for governments around the world. This is adding some bizarre twists to stories of social media content takedowns as governments target posts by non-citizens located thousands of miles away.India may have abandoned a fake news law, but it still acting as though unverified news is a threat to national security. In a case covered by Kevin Poulsen for The Daily Beast, an American college student's tweets were targeted by the Indian government, which claimed the student was engaging in spreading propaganda.

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It's no secret that Australia has taken a very different view towards intermediary liability than the US, saying (for example) that search engines can be responsible for search results it had nothing to do with, and even that they can be held liable if you are offended by the images that show up next to yours in an image search. So perhaps the latest such case in Australia shouldn't be a surprise. A court has ruled that media companies can be held liable for comments on their news stories. And not just the comments on their own pages... but on Facebook.And the reasoning here is truly incredible. Because an "expert" testified that news sites could "hack" Facebook with a filtered list of common words to block comments, that magically makes them liable. No, really.

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.As robocallers get bolder, they're increasingly targeting institutions like hospitals, often to a dangerous degree:

This week, our first place winner on the insightful side is an anonymous comment that does a great job at summing up much of the content moderation question:

Five Years AgoThis week in 2014, it was becoming increasingly clear that the government had no idea how to solve a problem like Snowden, and we all got to see more details about things like the NSA's aggressive language about data collection, its gamification of spying, and the fact that it was accessing insane amounts of data directly from overseas cables. But some progress was made as the House overwhelmingly voted to take away one of the NSA's spying tools, even as the administration declined to take an easy opportunity to end bulk phone data collection immediately.Meanwhile, police in London made the hilarious claim that "The Tor" is 90% of the internet, the feud between John Oliver and Tom Wheeler moved into its second phase, Techdirt received its first right to be forgotten request, Prenda Law was hit with $12,000 in sanctions, and an appeals court ruled unequivocally that yes, Sherlock Holmes is in the public domain.Ten Years AgoThis week in 2009, while one media analyst was calling Hulu "anti-Ameircan" for providing free content, and Blu-Ray was rolling out the ability to make inconvenient DRM-laden copies of discs, the recording industry was tying itself in knots in its fight for the Performance Rights act: arguing against the idea that digital radio is different from terrestrial despite that being an idea the RIAA itself originally promulgated, and calling for an FCC investigation of radio stations that were refusing to play songs from musicians who supported the Act, even though their whole argument is that all this unpaid airplay constitutes piracy. But they got a big win in the ill-advised Jammie Thomas case, with Thomas ordered to pay a shocking $1.92 million by the jury — an insane number that raised big constitutional questions was of course quickly defended by all the usual RIAA mouthpieces.Fifteen Years AgoThis week in 2004, the big trend for online newspapers was the silly notion of registration walls, but at least that wasn't quite as insane as their plan to get in on the music download store trend. People were still having all sorts of reactions to the spread of mobile phones, from the irritation with hearing private conversations to the standard fear about kids accessing porn and even in some places giving serious credence to fears about wireless signals causing illness. Perhaps the craziest example was in Ireland, where the government wanted to create a registry of all 3G phone buyers in case some turned out to be child pornographers.Meanwhile, the MPAA was trying to come up with strained legal reasons that file sharing systems should be investigated, Universal's vaunted price-drop for CDs was not going so smoothly, DirecTV stopped attempting to extort people who had purchased smart card readers in what seemed to be the result of EFF pressure but turned out to likely have been because of a forthcoming court order, and Cory Doctorow — in a fight that he sadly must continue (but thankfully does continue) to this day — made a thorough and impassioned argument against DRM to Microsoft.

For years, we've tended to mock newspaper paywalls -- not because we don't want to see news publishers get paid (that would actually be good!), but because it just doesn't seem like a really sustainable way to build a news product for nearly every publication. In other words, nearly all media paywalls are destined to fail -- often spectacularly -- because they can't generate nearly enough paying subscribers. There are exceptions, but they are few and far between. Large general interest news sites like the NY Times and the Washington Post seem to have made it work. Small, narrowly focused sites can sometimes get by as well -- if their content is unique and special enough. But most general interest news sites are unlikely to be able to make it work -- and a new study drives home that point. Even for people who like paying for news, they tend to only pay for one news subscription. Really.

Senator Josh Hawley's law to wipe out CDA 230 protections for internet platforms unless they apply to the FTC for a special certificate, which they can only get if they show 'clear and convincing evidence" that their moderation practices are "politically neutral," is dumb in many, many ways. But one of the most ridiculous parts is that it literally requires internet platforms to give extra weight to Nazis, and to punish any site that does not give the Nazis a platform. NetChoice made this point with its statement on the bill:

On Monday, June 17, Deputy Attorney General Jeffrey Rosen said this during his speech to the National Sheriffs' Association:

Earlier this year, we wrote about a powerful piece by Casey Newton at The Verge detailing what a horrific job it is to be a content moderator for Facebook. It was eye-opening.

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