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For well over a decade we've discussed the short-sightedness of the US repeatedly demanding that China "respect" US intellectual property, because China has only turned that around on the US, and used Chinese patents as a way to block American competitors from entering the Chinese market. Things seemed to go up a notch recently, after the US government expanded its attempts to block Huawei from the US market, and Huawei suddenly remembered it owned a shit ton of patents and started demanding Verizon pay on the order of a billion dollars or face patent infringement claims.As we discussed, Huawei was just following the established playbook of using the US's bizarrely stupid obsession with "patents" against the US itself. Hilariously, Huawei's CEO was just recently quoted as insisting that the company would not "weaponize" its patents, at the same time that it was clear that that's exactly what Huawei is doing. Of course, as we've learned over the years, patents are designed to be weaponized and are frequently used as weapons against innovation.In response to all of this, rather than recognizing that our over emphasis on patents (and our demands that China "respect" those patents) might be a big part of the problem, Senator Marco Rubio, has submitted an amendment to the National Defense Authorization Act (NDAA) that would literally block Huawei from enforcing its patents in US courts. In a tweet, Rubio defended this blatantly protectionist move:

There seems to be some recurrent confusion about Section 230: how can it let a website be immune from liability for its users' content, and yet still get to affect whether and how that content is delivered? Isn't that inconsistent?The answer is no: platforms don't lose Section 230 protection if they aren't neutral with respect to the content they carry. There are a few reasons, one being constitutional. The First Amendment protects editorial discretion, even for companies.But another big reason is statutory, which is what this post is about. Platforms have the discretion to choose what content to enable, because making those moderating choices is one of the things that Section 230 explicitly gives them protection to do.The key here is that Section 230 in fact provides two interrelated forms of protection for Internet platforms as part of one comprehensive policy approach to online content. It does this because Congress actually had two problems that it was trying to solve when it passed it. One was that Congress was worried about there being too much harmful content online. We see this evidenced in the fact that Section 230 was ultimately passed as part of the "Communications Decency Act," a larger bill aimed at minimizing undesirable material online.Meanwhile Congress was also worried about losing beneficial online content. This latter concern was particularly acute in the wake of the Stratton Oakmont v. Prodigy case, where an online platform was held liable for its user's content. If platforms could be held liable for the user content they facilitated, then they would be unlikely to facilitate it, which would lead to a reduction in beneficial online activity and expression, which, as we can see from the first two subsections of Section 230 itself, was something Congress wanted to encourage.To address these twin concerns, Congress passed Section 230 with two complementary objectives: encourage the most good content, and the least bad. Section 230 was purposefully designed to achieve both these ends by providing online platforms with what are ultimately two complementary forms of protection.The first is the one that people are most familiar with, the one that keeps platforms from being held liable for how users use their systems and services. It's at 47 U.S.C. Section 230(c)(1).

As we've noted for years, internet filters don't work, routinely censor legitimate content by mistake, and implementing them is a massive waste of money, time, resources, and precious calories. In the UK, that's been a lesson that has been painfully difficult to learn.The UK has long implemented porn filters in a bid to restrict anybody under the age of 18 from accessing such content. New age verification controls were also mandated as part of the Digital Economy Act of 2017. But as we've previously noted, the UK government has seen several fits and starts with its proposal as it desperately tries to convince the public and business sectors that the ham-fisted effort was going to actually work.Back in April, the UK government announced that after numerous delays the program would effectively be taking effect July 15. Under the proposal, websites that failed to comply with the country's age verification program face fines up to £250,000, risk being taken offline, or may lose access to payment services. Randy folks who wanted to view some porn were to be redirected to a special subsite where they'd be prompted for an email address and a password, before verifying your age using a driving license or a passport. They'd then, theoretically, happily be passed off to compliant porn websites.Of course anybody who has watched anybody with a whit of technical prowess bypass these costly blockades using VPNs or proxies knew this wasn't going to work. Getting global websites to comply with UK law was largely preposterous, and the creation of a database of porn habits created fairly obvious privacy and security issues.After years of grumbling, the UK government appears to have now scrapped the proposal "indefinitely." UK outlets are suggesting that bureaucratic dysfunction -- not any epiphany as to the stupidity of the program -- was to blame:

A couple of weeks back, we discussed the story of Caterpillar Inc., famous manufacturers of tractor equipment, deciding to bully Cat & Cloud Coffee, makers of you'll-never-guess-what, all because the former had long ago trademarked "CAT" as a truncated brand. At issue specifically is Cat & Cloud's use of the word "cat" on clothing and merchandise it sells, with Caterpillar claiming there is the potential for public confusion with its own clothing and merch lines. This is, of course, plainly ridiculous. There is no overlap in the branding and nobody is going to confuse the tractor folks with the coffee folks.Others pointed out that there are tons of other companies out there that sell apparel and/or merch while holding trademarks that incorporate the word "cat." If those other companies are allowed to exist, why not Cat & Cloud? Caterpillar Inc. heard you dear friends, but its response is probably not the one you were hoping for.

Over the weekend, Google CEO Sundar Pichai gave an interview to CNN in which he admitted to exactly what we've been screaming over and over again for a few years now: it's literally impossible to do content moderation at scale perfectly. This is for a variety of reasons: first off, no one agrees what is the "correct" level of moderation. Ask 100 people and you will likely get 100 different answers (I know this, because we did this). What many people think must be mostly "black and white" choices actually has a tremendous amount of gray. Second, even if there were clear and easy choices to make (which there are not), at the scale of most major platforms, even a tiny error rate (of either false positives or false negatives) will still be a very large absolute number of mistakes.So Pichai's comments to CNN shouldn't be seen as controversial, so much as they are explaining how large numbers work:

This week, the Washington Post grabbed plenty of attention for a story that claimed that kids are actually growing "horns" because of cell phone use. The story, which leans on 2016 and 2018 research out of Australia, was cribbing off of this more nuanced piece by the BBC on how skeletal adaptation to modern living changes are kind of a thing. The Post's more inflammatory take was accompanied by a wide variety of other stories proclaiming that today's children are growing horns and bone spurs because they use their durn cellphones too much!The Washington Post put it this way, with an accompanying, scary X-Ray pulled from the initial research:

A California court has tossed a self-described feminist's lawsuit against Twitter for being kicked off the platform. [h/t Adam Steinbaugh]Meghan Murphy was banned from Twitter for violating the terms of use with tweets stating "men aren't women tho" and "how are transwomen not men?" She also posted tweets referring to certain transgender women as "men," which contained personal information about their previous male identities. Twitter gave several warnings to Murphy that these tweets violated its Hateful Conduct Policy before banning her completely.Murphy then sued, filing a putative class action lawsuit against the social media service that alleged a variety of contractual violations. She alleged the updated Hateful Conduct Policy hadn't been enacted at the point she was accused of violating it -- specifically the additions that made targeting or "deadnaming" transgender people a violation of the rules.Murphy hoped to have the court find in her favor and bind Twitter to a large number of stipulations. From the decision [PDF]:

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Last week, Tim Geigner wrote about the Spanish soccer league, La Liga, getting hit with a GDPR fine because its mobile software just happened to sneakily include a surreptitious surveillance feature, turning on users' microphones to try to capture who was watching/listening to unauthorized broadcasts of matches. I wanted to write a little more on this, inspired by a comment from Professor Annemarie Bridy, who pointed out that anti-piracy enforcement goes hand-in-hand with surveillance:

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $25 billion merger with Sprint. Why? As it stands, the merger would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price and inevitably resulting in layoffs. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network. This would create a new fourth carrier to (theoretically) help offset any potential competitive harm.That theory gained traction again with yet more reports stating that Dish would buy about $6 billion in T-Mobile and Sprint assets in an attempt to force this new fourth carrier into existence:

Nothing's too much to sacrifice for the greater good of Australia. Not even Australians.A series of police raids on journalists has raised questions about how far the government will go to control what Australian citizens know about their government's activities. Three separate raids targeted leaks that revealed, among other things, possible war crimes committed by Australian soldiers and the government's plans to place its own citizens under surveillance by expanding the power allotted to the Australian Signals Directorate.The unintentional side effect of government raids designed to discourage further reporting on government secrets is the government is now confirming one of the leaks it targeted.

Sometimes it's the things you don't do that can hurt you. The Sixth Circuit Court of Appeals has handed out a reminder to law enforcement officers that standing around while rights are violated can leave you just as liable as if you'd violated those rights yourself.The allegations behind the lawsuit and this rare denial of qualified immunity are horrifying. Being jailed is never pleasant, but the deputies involved in this case went out of their way to ensure this booking was particularly degrading. Keep in mind this was nothing more than an arrest for drunk driving. From the decision [PDF]:

We've entered something of a moral panic, or at least an impressive uptick in public awareness, around the concept of deep fakes. These videos, edited and manipulated through technology, have managed everything from making the Speaker of the House appear drunk to putting caricature-like words in the mouth of Facebook's Mark Zuckerberg. On the topic of Facebook, it's been somewhat interesting to watch various internet sites deviate on exactly how to approach these deep fakes once they are reported. Facebook kept up the Pelosi video and, to its credit, the Zuckerberg video, but added some text to alert viewers that it was faked. Other sites, such as YouTube, have chosen to take certain deep fake videos down.One of those, as occurred recently, was a deep fake of Kim Kardashian that altered an interview given to Vogue Magazine, such that she appears to be discussing a conspiratorial group called Spectre and giving her own fans a hard time. It's all fairly parodic and not something that passes the most basic smell test. And, yet, as the discussion rages on as to how sites should respond and handle deep fakes, this particular video was taken down due to a copyright claim.

On Tuesday we did a deep dive into the whole kerfuffle over Genius claiming that Google was "scraping" its lyrics and explained why the whole story was a huge nothingburger. There are lots of reasons to be worried about Google, but this was not one of them. Among the many, many points in the article, we noted that Google had properly licensed the lyrics, that LyricFind admitted that it was the one responsible, that most publishers don't even know the lyrics they're licensing in the first place, and that basically everyone just copies them from everyone else. And, now, just to put a fine point on how this entire story in the Wall Street Journal (which has published multiple anti-Google editorials over the past few years) was concocted just to attack Google over something it hadn't done, a Wired article analyzing the situation notes that Microsoft's Bing and Amazon Music also display the identical lyrics that appear to have the "coded" or "watermarked" apostrophes that Genius put in place:

Internet hellhole 8chan has been hit with a federal search warrant. The site, created to serve those who felt 4chan's nearly-nonexistent moderation was too restrictive, has been front and center recently due to its hosting of manifestos by mass shooters who apparently frequented the site.In this case, an investigation into a shooting at a California mosque has led the FBI to the pages of 8chan. Postings at the site -- along with some at Facebook -- have linked the shooter to the Christchurch shooting in New Zealand. According to the affidavit [PDF], the FBI believes the California mosque shooter was "inspired and/or educated" by the New Zealand's shooters manifesto and actions.The Poway shooter is already in custody, so the value of the information sought here is questionable. While the info may have some value in establishing the shooter's state of mind, as well as his connection to other crimes, the warrant does bear some resemblance to a fishing expedition.From the affidavit, it appears the feds have no shortage of evidence to use against the shooter:

Senate newbie Josh Hawley has made it clear that he's no fan of big internet companies and has joined with others in suggesting that Section 230 is somehow to blame for whatever it is he dislikes (it mainly seems to be he thinks the public likes them too much). So now he's proposed a massively stupid and clearly unconstitutional bill, called the "Ending Support for Internet Censorship Act," to wipe out CDA 230 protections for large internet platforms. The proposal is shockingly dumb and so obviously unconstitutional it boggles the mind that Hawley is actually a constitutional lawyer.The bill is pretty straightforward, both in how it operates, and in how misguided it is. If you're a "big" internet platform -- defined as having more than 30 million "active monthly users" in the US or more than 300 million such users globally (or having over $500 million in revenue) -- then you automatically lose the protections of CDA 230. You can regain them by making a request to the FTC. In order to get them, you have to pay for an "audit" of your content moderation practices, and pro-actively "prove" via "clear and convincing evidence" that the practices are "politically neutral." Once the you do that, the FTC would "vote" on whether or not you could get CDA 230 protections, and they would only be granted with a "supermajority vote," which would mean at least four out of the five commissioners would have to vote for it. Since FTC Commissioners are always 3 to 2 in favor of the political party in the White House, that means any internet company that wants to get approval would need to get at least one commissioner of the non-Presidential party to vote for the immunity as well.There's no way this survives constitutional scrutiny (if it actually becomes law, which seems unlikely). The First Amendment pretty clearly says that Congress can't create a law that (1) forces a company to get approval for its moderation practices and (2) judges content on whether or not it's deemed "politically neutral." Also, what the hell does "politically neutral" even mean? It doesn't mean anything. And, as for "clear and convincing evidence," tons of people have pointed to clear and convincing evidence that these platforms don't moderate based on political viewpoints, and yet we still have tons of people insisting they do. Nothing is going to convince some people that the platforms are actively targeting conservatives, no matter how many times evidence to the contrary is presented. Hawley has set up a purposefully impossible standard. As we've pointed out, many people still insist that Twitter deciding to kick off literal Nazis is "evidence" of anti-conservative bias. As NetChoice points out, Hawley's bill would require sites to host KKK propaganda just in order to obtain basic liability protections.Is Josh Hawley truly arguing that any large website must cater to Nazis if it wants to allow public conversation? Because, damn, dude, that's a bold call.This is from the guy who claims to be a "Constitutional Conservative"? Really? His current bio hypes up that he's a "leading constitutional lawyer" and talks about how he was one of the lead attorneys in the Hobby Lobby case, which was (in part) defending a company's right to use the First Amendment to refuse to obey certain laws that violated the religious beliefs of their owners. So, apparently, in that case, it's bad for the government to enforce rules for private businesses -- but for other kinds of companies, the government should force them to moderate content in a particular way? I mean, is Hobby Lobby forced to be "politically neutral" in the products it sells in its shops? You'd expect Hawley to be at the front of the line screaming about how awful that would be. Can you imagine the stink that Hawley himself would put up if Congress attempted to force Hobby Lobby to be "politically neutral" in its own actions?Either way, this law is a non-starter, and once again shows that Hawley isn't legislating from any position of principle, but is grandstanding clearly unconstitutional ideas in the belief that self-identified "conservatives" hate the big internet companies these days, so any attack on them, no matter how dumb and unconstitutional, must be fine. As TechFreedom points out, this is little more than a fairness doctrine for the internet -- something conservatives have been against for decades. Incredibly, for all of the misguided and misleading complaints about how "net neutrality" was the "government takeover of the internet," Hawley's bill actually does a bunch of the things that opponents to net neutrality pretended net neutrality would do -- and yet, because it's politically expedient, you can likely bet that many of those who were against net neutrality will now support Hawley's ridiculous bill.

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Everyone's got it out for Section 230 of the Communications Decency Act these days. And pretty much any excuse will do. The latest is that last week, Rep. Adam Schiff held a hearing on "deep fakes" with a part of the focus being on why we should "amend" (read: rip to shreds) Section 230 of the Communications Decency Act to "deal with" deep fakes. You can watch the whole hearing here, if you're into that kind of punishment:One of the speakers was law professor Danielle Citron, who has been a long time supporter of amending CDA 230 (though, at the very least, has been a lot more careful and thoughtful about her advocacy on that then many others who speak out against 230). And she recommended changing CDA 230 to deal with deep fakes by requiring platforms take responsibility with "reasonable" policies:

Shortly after the Christchurch mosque shooting, the New Zealand government's censorship board decided to categorize almost everything related to the shooting (the shooter's manifesto, his livestream of the shooting, his social media posts) as "objectionable." This wasn't a case of reaching an obvious conclusion. Officially terming it "objectionable" made it a criminal act to distribute any of this content via social media or other services.Having done that, the government wasted no time bringing criminal charges against violators. The first arrest happened only two days after the shooting, netting the government an 18-year-old defendant. The more interesting arrest was the second one, which landed Phillip Arps, a local businessman with some not-so-latent white nationalist leanings.Arps spent the hours after the shooting refusing to condemn the violent act and -- the event triggering the criminal charges -- passing around footage of the shooting. Not all that surprising for a man whose company is named after a German prison camp and who charges $14.88 a foot for insulation installation.Since each count against Arps could have netted him a max 14 years in prison, the final sentence seems comparatively light.

It's been nearly a decade since we last wrote about the Australian aborigine flag and the insane copyright issues surrounding it. That time, back in 2010, it involved the copyright holder of the flag forcing Google to edit the flag out of one of its famous Google doodles, where it had originally been included as part of an Australia Day celebration. The problem, as you might have guessed, is that the flag was designed in the early 1970s "as a symbol of unity and national identity" by Harold Thomas. Because it was the creation of a private individual, and not a government, Thomas claims to hold a copyright on the image. He didn't do much with that copyright for decades, while the flag became an established symbol for indigenous Australians. Then, suddenly, he discovered he held the copyright and started making use of it.Apparently, that's ramped up even more in the last few months after Thomas did a licensing deal with a clothing company, followed by the traditional "sending of the cease-and-desist letters."

The Australian government approved an amended copyright law late last year that made subtle changes to what types of sites ISPs can be ordered to be blocked by the courts, and the process by which that order is obtained. Essentially, the changes amounted to allowing blocking of sites with the primary "effect" being copyright infringement, rather than the primary "purpose", along with an expedited process for getting additional site-blocking orders for sites that set up mirror sites to route around the blocks. Before the ink on the legislation was even dry, just as we warned, Village Roadshow and a bunch of American entertainment companies swooped into the court system to order blocks on all kinds of sites.And now it appears those groups were just getting started. After getting 181 domains blocked late last year, industry groups have decided to expand that with a recent request to block an additional 105 domains.

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So, if someone can be sentenced to two years in prison for 40 minutes of newspaper website defacement performed by a party other than himself, it stands to reason someone who took down five websites would be looking at a minimum of ten years in jail.Welcome to the hilarious and tragic world of CFAA-related sentencing. Matthew Keys was hit with a two-year sentence for supposedly sharing his login password (something Keys has steadfastly denied doing), an act that resulted in someone else subjecting the L.A. Times website to a 40-minute inconvenience. The momentary vandalism of the site's landing page suggested Congressional representatives were being pressured to elect CHIPPY 1337. No. Seriously. That was the extent of the "damage."Once the DOJ decided this was worth pursuing under the CFAA, internal L.A. Times' emails regarding the "hack" suddenly cost $225/each to create. The feds wanted five years but settled for two. And while Matthew Keys served his sentence, no one in the federal government made any effort to locate the person who actually performed the website defacement.A more serious hacking -- one that resulted in five news websites being completely unreachable for a short period of time -- has netted the "hacker" involved with a very lenient sentence.

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors... and therefore they can't ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases -- but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.The details of the case are a bit involved -- and you can read the original post for more details -- but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City's government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state's role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.As I wrote in my post about it, this seemed like a stretch as well, since the state's role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether -- though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn't directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it's ridiculous to think social media platforms could be considered public forums. And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch -- and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the "conservatives" currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit's ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn't apply to a public access TV network, even one created by the state.

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So just over a year ago the FCC quickly rushed to kill net neutrality at telecom lobbyists' behest. As we noted last week, the repeal did far more than just kill net neutrality protections; it effectively freed uncompetitive telecom providers from most meaningful oversight. With a few notable exceptions, most ISPs have tried to remain on their best behavior for two reasons: one, they're worried about the ongoing lawsuit from 23 State AGs that could potentially restore the rules any day now. And two, they don't want to run afoul of the nearly two dozen states that passed their own net neutrality rules in the wake of the repeal.Of course this all occurred because of the Ajit Pai FCC claim that killing the rules would result in amazing broadband growth, competition, and investment. But as people keep digging into the numbers, they've (surprise!) increasingly realized that absolutely none of those promises ever materialized (and aren't likely to without more competition). The latest case in point comes courtesy of longtime journalist Rob Pegoraro, who again noted how that supposed investment boon never happened, and in fact many ISPs are already pulling back on investment thanks to limited competition and tepid regulatory oversight:

You may have seen this story in various forms over the weekend, starting with a big Wall Street Journal article (paywall likely) claiming that Genius caught Google "red handed" in copying lyrics from its site. Lots of other articles on the story use the term "red handed" in the title, and you'll understand why in a moment. However, there's a lot of background to go over here -- and while many Google haters are making a big deal out of this news, after going through the details, it seems like (mostly) a completely over-hyped, ridiculous story.First, a little background: for pretty much the entire existence of this site, we've written about legal disputes concerning lyrics sites -- going all the way back to a story in 2000 about LyricFind (remember that name?) preemptively shutting itself down to try to work out "licensing" deals for the copyright on lyrics. Over the years, publishers have routinely freaked out and demanded money from lyrics sites. As we've pointed out over and over again, it was never clear how this made any sense at all -- especially on crowd sourced lyrics sites. It's not as though lyrics sites are taking away from the sales of the music -- if anything, they're the kinds of thing that connects people more deeply to the music and would help improve other aspects of the music business ecosystem.Over time, however, more and more sites realized that it was just easier to pay up than fight it out in court. One of those sites was Genius -- originally "RapGenius" -- which was called out by the National Music Publisher's Association as one of the "worst" infringers out there a few years back. Genius eventually caved in and agreed to license lyrics, despite incredibly strong fair use claims (since the whole point of Genius was to allow for annotation and commentary).However, in this latest case, it's now Genius that's complaining about someone else copying its content. Except... it's not Genius' content. This is what makes the story bizarre -- which we'll get to in a moment. However, first, it is worth highlighting the somewhat fun way in which Genius apparently "caught" Google using content from the Genius site as its source material. Basically, Genius hid a code in whether it used "straight" apostrophes or curly "smart" apostrophes:

The awful Article 13/17 of the EU's Copyright Directive only seems to have passed thanks to some MEPs voting for it by mistake. But the European Parliament was not the only arm of the European Union where there was strong resistance to the awful ideas contained in the upload filter proposal. Some individual governments were also against aspects of the law. For example, right at the end of the legislative process, in April 2019, no less than seven EU nations expressed their serious concerns. One of them was Poland, which issued a joint statement (pdf) with the Netherlands, Luxembourg, Italy and Finland, including the following:

The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn't "reasonable" when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.Contraband was found, leading to Brown's motion to suppress. The lower court said this combination -- an anonymous report of a gun and Brown's decision to run when he saw the police cruiser -- was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can't be inherently suspicious in a state where carrying a gun in public is permitted.

We've noted for many years that (like so many "internet of things" devices) modern smart televisions have the security protection equivalent of damp cardboard. Not only are they often easily hacked (something intelligence agencies are super excited about since it gives them audio access to targets), but the companies that make them have been busted repeatedly for hoovering up user usage data (and even audio from your living room), and then failing to adequately secure it.This week, Samsung took a bit of heat for urging the company's TV customers to, for the first time, occasionally run an antivirus scan on their television sets. The Tweet was online online briefly before Samsung deleted it, apparently realizing it only advertised the fact that you shouldn't be getting viruses on your TV set in the first place:That's amusing for several reasons. One, because customers wouldn't be getting viruses on their television sets if these products had even the most basic security protections, something TV vendors have failed at for years. Two, because it highlights how many modern televisions have become insanely complicated. Not because consumers necessarily want them to be insanely complicated, but because most TV vendors want you using their embedded streaming platforms and as opposed to a third-party streaming device (like Roku, Chromecast, or a game console).And of course they want you using their streaming platforms because they want to monetize your viewing and other profitable data. As a Vizio executive recently acknowledged, this can help subsidize the cost of cheaper TV sets. That creates a dilemma whereby the consumer is forced to pay a premium if they want a TV set that simply displays a god-damned image and doesn't hoover up their personal data:

The process may have taken forever, but Paul "welcome to the big leagues" Hansmeier, who was the apparent mastermind behind the Prenda copyright trolling scam has finally been sentenced to 14 years in prison, and told to repay $1.5 million to 704 victims of his scam. We've been covering the actions of Hansmeier and his partner in crime, John Steele, going back many, many years now. None of us have the time to recount all of the many scams they've pulled, but they took copyright trolling to new lows. They tried using Florida's "pure bill of discovery" rules to try to abuse the system to get names to shakedown based on IP addresses. They sent totally unqualified and unprepared "associates" into courts to try to hide their own involvement in cases, they abused the CFAA by pretending movies they uploaded themselves were "hacked" in an attempt to get around restrictions on copyright trolling, they got someone they threatened to sue to basically take a dive in order to get access to other people to shake down (and then they went after that guy anyway). Oh, and then there was the whole thing about setting up their own fake movie production house, creating their own porn films to upload themselves, and then pretending in court that they were not the owners of the company in questions. And we don't even have much time to get into the time Steele tried to forge the signature of his housekeeper to pretend he was the actual officer of one of those fake shell companies.Over and over and over again, Hansmeier and Steele played every possible game with a single focus in mind: getting names of people to send threatening shakedown letters to. And, apparently, they took in about $6 million over the years -- though a bunch of civil cases have forced them to cough up plenty of that before the criminal charges came down.And there is no indication that Hansmeier had any regrets about all of this. Even after his arrest, he (and his wife) engaged in an analogous scheme of ADA trolling, looking for small businesses who might technically violate the ADA, and demanding cash from them to avoid a lawsuit. Hansmeier is facing an investigation over that as well.Oh, and then there was the whole bankruptcy fraud thing. Seriously, the list goes on and on and on and everytime you think you remember it all, you're reminded of some other really sketchy thing Hansmeier and Steele did.So it should probably come as little surprise that the judge in the case was not impressed, and even said he considered giving him even more time in jail:

This one combines a few stories that we've covered a lot over the years, showing how they're intersecting. For some time now we've been covering the US's evidence-free attacks on Huawei, the Chinese telco equipment giant. Basically, for years, there have been stories insisting that Huawei is too closely linked to the Chinese government, leading to fear mongering stories saying that the company should be effectively barred from the US. However, multiple attempts to find security flaws in Huawei's products have failed to show any kind of backdoors, and the fact that US-based Huawei competitors often seem to be making the loudest noises about the Chinese giant should raise some eyebrows.The other story we've covered a lot is around China and patents. For years and years, US companies (and policymakers) would go on and on about how Chinese companies didn't respect US patents, and demanding that China "must respect our IP." As we've highlighted for years, the Chinese government realized a decade or so ago that since the US kept trying to apply diplomatic pressure to "respect patents," China realized it could just start using patents as an economic weapon. The number of patents granted in China started to shoot up, and (surprise surprise) suddenly in legal disputes, Chinese companies were using patents to block American competitors. And the US couldn't really complain since it was the US that demanded China "respect patents" so much.Just a few weeks ago, we noted that China was gearing up to respond to Donald Trump's ignorant trade war by using patents against US companies.Put it all together, and it should be no surprise at all that Huawei is now demanding $1 billion from Verizon for patent infringement.

The war on fan-made subtitles waged by the entertainment industry has been going on for a long, long time. While fansubs could, and probably should, be viewed as a potential boon to the entertainment industry, allowing those in far-flung lands to suddenly enjoy its products, fansubs have instead been painted as an aid to pirated content overseas or, in some cases, as copyright infringement themselves, given that they essentially copy parts of the content scripts.If nothing else is clear as a result of this introduction, it should be that major industry players absolutely hate fansubs.... Except when they can make use of them, apparently, as Comcast-owned Swiss broadcaster Sky had been found using fansubs in its streaming service in the dumbest way possible.

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Alexis Madrigal, over at the Atlantic has a mostly interesting piece recounting the history of how the big internet companies started calling themselves platforms. The history is actually pretty fascinating:

Every few years or so, giant cable and broadband companies like Comcast will proclaim that they've finally seen the light, and will be spending time shoring up their terrible customer service. Like a few years ago, when Comcast proclaimed it had hired a "Customer Experience VP" who would finally make addressing the company's historically terrible customer service a top priority. CEO Brian Roberts also can be found at least once a year claiming that the company is going to finally address the problem by hiring better people, improving support systems, and generally revisiting the company's policies.But year after year, big cable and broadband companies fail to deliver. Case in point: the latest American Consumer Satisfaction Index was recently released, and ISPs and cable providers continue to see the worst customer satisfaction scores in America. These companies are so bad at what they do, they're routinely bested by even everybody's favorite punching bag: the IRS. When it comes to broadband service on a scale of 100, both Comcast and Charter (Spectrum) continue to see the worst scores in an already terrible sector:

This week, our first place winner on the insightful side is PaulT responding to a comment that offered a partial defense of ICE with a reminder about human rights:

Five Years AgoThis week in 2014, James Clapper finally admitted that the number of documents Ed Snowden took was probably a lot less than the much-bandied 1.7-million figure, while various former intelligence officials were not happy about Clapper's gag order on talking to the press. A new report examined the reactions to the Snowden leaks from governments around the world, and we noted one big positive result was companies being less ready to help the NSA. But agency defenders were still telling lots of lies, Mike Rogers was calling Google unpatriotic for opposing spying on its users, and we awaited a key vote in congress that would reveal how much it valued people's privacy.Ten Years AgoThis week in 2009, the Swedish Pirate Party surprised everyone by winning a seat in the EU parliament for Christian Engstrom, who used the attention to explain the party (and its name) to an often-confused press. Amidst the push for fashion copyright some smart designers were realizing it would be a bad thing, Bad Science's Ben Goldacre tore apart a bogus study about file sharing, and a UK ISP boss was trying to explain to the industry that it needs to give up on trying to stop all piracy. In France, the consitutional council gutted the recently-passed three strikes program, video game companies were still whining about used game sales, and we saw the beginning of another notoriously silly copyright dust-up when an Australian music publisher claimed Down Under by Men At Work was a copy of the children's song Kookaburra.Fifteen Years AgoThis week in 2004, people were cluing into the huge learning benefits for kids who use computers — and the fact that over-obsession with "internet risks" can undermine these benefits. We took a look at how being prevented from using a cellphone sparks extreme anger in some, but is embraced as a nice break by others. Television was trying to figure out how to embrace and/or compete with broadband, while the RIAA was complaining that digital broadcasts would make radio too high-quality, and that would be bad. And after a brief flurry of trading with some people shelling out hundreds of dollars for the hyped new email service, Gmail invites flooded the market and tanked the price.

There has been so much discussion lately about the impossibility of doing content moderation well, but it's notable that the vast majority of that discussion focuses on what content to ban or to block entirely. I do wish there was more talk about alternatives, some of which already exist (from things like demonetization to refusing to algorithmically promote -- though, for the most part, these solutions just seem to annoy people even more). But there is something of a flipside to this debate which applies in perhaps somewhat more rare circumstances: what content or speakers to specifically protect.I'm thinking of this, in particular, as Cloudflare has announced the 5th anniversary of its (until now, mostly secretive) Project Galileo offering, in which the company provides free security to around 600 organizations which are likely targets of attacks from well resourced attackers:

A little over a year ago, we discussed Matt Furie, the creator of the Pepe the Frog character that became an alt-right meme sensation, suing Infowars for selling posters featuring his character. That post was fraught with subtle takes, frankly, largely the result of Furie's wishy-washy history over how he protected his creation, or not, and the fact that the other side of the story was Infowars. Infowars is of course a conspiracy-mongering lie-factory run by play-acting assclowns that make gobs of money by getting followers to harass the parents of dead children and then selling those same followers merchandise and diet pills.A better description of the hellscape that is 2019 cannot be found.Still, Furie's decision to sue Infowars despite his previously being cool with people making memes out of the Pepe character made it clear that his reason for suing was a moral one, in that he didn't want Pepe to be used alongside hateful content. Copyright, meanwhile, is meant to be deployed on economic grounds, making this all quite murky. On top of that, meme culture could be threatened by these types of actions, all over a moral dispute that really has no place in terms of copyright enforcement.Well, in keeping with the theme, Furie's moral dispute has resulted in a moral victory of sorts, with Infowars agreeing to settle out of court for $15k and both sides claiming victory. First, the facts on the settlement.

Almost exactly three years ago, we were pleasantly surprised to find that a jury unanimously ruled that Led Zeppelin did not infringe on a song by the band Taurus called "Spirit" with "Stairway to Heaven." We noted that, similar to the Blurred Lines case, if you just listen to bits and pieces of each song, you can hear a similarity, but that does not, and should not, mean it was infringing. As we've pointed out, while Stairway and Taurus can sound similar:... the same is true of Stairway, Taurus... and J.S. Bach's Bouree In E Minor, which you'd better believe is in the public domain:Given all that, we were disappointed last fall when the 9th Circuit suddenly vacated the jury's decision and ordered a new trial, claiming that the jury instructions in the original were incorrect. However, as copyright lawyer, Rick Sanders explained, there were potentially some positives to come out of this, such as some very good reasons for this decision, including that it might fix the 9th Circuit's insanely ridiculous legal framework for determining if there is infringement. Also, there were some very real problems with the jury instructions.However, before the case did go back for a second trial, that decision was appealed, and now the 9th Circuit has agreed to hear the issue en banc (with an 11-judge slate). It looks like there are a number of potentially important issues that the court will get a chance to dig into when it hears the case this fall. The guy who runs the estate of the guy who wrote "Taurus" wants the court to determine whether or not the specific sheet music that is deposited with the copyright lays out the full scope of what is covered (under the 1909 Copyright Act, which applied when the song was written), and also suggests that the court needs to consider the "dire consequences" of its decision "including the seismic disenfranchisement of almost all" musicians of pre-1978 music (which, uh, is quite a bit of hyperbole). Meanwhile, Zeppelin admits that there were some problems with the original jury instructions (though, not as much as the other side claims), but says that it wouldn't have made a difference and that the plaintiff "invited and waived" the mistake in the first place.However, as Rick Sanders noted in his pieces, Zeppelin's lawyers also ask the 9th Circuit to toss out the weird "inverse ratio rule" legal framework that the 9th Circuit uses in determining infringement (to understand that weird rule, go back and read this piece).Of course, this is the 9th Circuit we're talking about, and it has a way of getting copyright law completely screwed up all too frequently. So while it has a chance to do something good, it could also muck things up, and this particular court is especially good at mucking up copyright law.

The lies law enforcement tells about civil asset forfeiture are just that: lies. They may not be intentional lies in some cases. Many law enforcement officials may actually believe the bullshit they spill in defense of taking property from people without convicting them of crimes. But that doesn't change the fact that it's bullshit.If law enforcement was serious about crippling drug cartels, they wouldn't be watching the roads leading out of their jurisdictions for drivers to pull over and shake down for cash. They'd be watching roads leading into the state to seize the drugs before they can be sold. But that's not how it's done. Drug busts are rare. Cash seizures -- especially small ones -- happen all the time.

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There are many reasonable complaints making the rounds these days about the big internet companies, and many questions about what should be done. Unfortunately, too much of the thinking around this can be summarized as "these companies are bad, we should punish them, any punishment therefore is good." This is dangerous thinking. I tend to agree with Benedict Evans who noted that there's a similarity between calls to break up big tech companies and Brexit in the UK:

Back in 2016 Russia introduced a new surveillance bill promising to deliver greater security to the country. Of course, as with so many similar efforts around the world the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized.Last March Russia upped the ante, demanding that VPN providers like NordVPN, ExpressVPN, IPVanish, and HideMyAss help block forbidden websites that have been added to Russia's censorship watchlist. Not surprisingly those companies balked at the request, and now Russia's moving on to what was the goal from the start: banning these companies from doing business entirely.

Roughly one year ago, we wrote about La Liga, the Spanish soccer league, pushing out an app to soccer fans that allowed the software to repurpose a mobile device's microphone and GPS to try to catch unauthorized broadcasts of La Liga matches. The league publicized this information, which had previously been buried in obscure language in its TOS, as mandated by the GDPR. At the same time, the league attempted to brush the whole thing off as above board, claiming that what was in the TOS informed users of the app enough that their own mobile devices were being compromised and turned into copyright snoop networks.If this all sounds like The Dark Knight Rises for European soccer... you aren't wrong.La Liga apparently was wrong, however, in its claims that all of this was okey-dokey.

The latest in our never ending series of posts on why content moderation at scale is impossible to do well, involves Twitter now claiming that a tweet from the account @TheTweetOfGod somehow violates its policies:

We've noted for years how broadband providers have increasingly imposed arbitrary, confusing, and punitive usage caps and overage fees to cash in on the lack of competition in US broadband. Not only have industry executives admitted these limits aren't technically necessary, they've increasingly been abused to hamstring competitors. AT&T, for example, doesn't impose the limits on its broadband customers who use its streaming video service (DirecTV Now), but will impose the added charges if you use a competitor like Netflix.For more than a decade ISPs have slowly but surely imposed such limits hoping that consumers wouldn't notice (think of the frog in the pot of boiling water metaphor with you as the frog). But as video streaming services have increasingly embraced high-bandwidth 4K streaming, consumer usage has started to collide with this arbitrary restrictions.On the other hand, the rise of game streaming services like Google Stadia is going to blow right past these caps, finally highlighting the problem in stark detail. Services like Stadia eliminate the need for local gaming hardware, with all of the processing occurring in the cloud. The bandwidth consumption of these services will be fairly incredible:

Former revenge porn extortionist and current pro se litigant, Craig Brittain, is one severely-narrowed complaint away from having his lawsuit against Twitter tossed. Brittain sued Twitter over the deletion of several accounts, including those he had whipped up for his Senate run.The court's first pass at the lawsuit moved it to California, a venue shift Brittain explicitly agreed to each time he created another alt account. Terms of service say suing Twitter means suing in California, even if you're an Arizonan Senate hopeful with a closet that contains nothing but skeletons.Contrary to Brittain's fervent and litigious belief, there's nothing illegal about deleting Craig Brittain's multiple Twitter accounts. Brittain's lawsuit tried to make it possible by treating Twitter as both a provider and a publisher, depending of which description worked out better for his arguments. The court decides to let Brittain have it both ways -- and lose both ways. (h/t Adam Steinbaugh)As a service provider, Twitter cannot be held liable for third party content. It can also remove accounts without losing this immunity. Since this isn't about the removal of content, but rather the removal of accounts, Brittain tried to argue Section 230 immunity can't protect Twitter from this lawsuit because removing accounts (and their content) is an editorial activity. The court points out this has zero effect on Section 230 protections. From the decision [PDF]: