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For nearly fifteen years, we've written about how patent trolls love East Texas, and spent years building an entire industry in some small Texas towns centered around patent trolling, and dragging companies from all over into east Texas to face lawsuits. Almost two years ago, we were pretty thrilled to see the Supreme Court slam the door on the most blatant jurisdiction shopping by patent trolls in the TC Heartland case. And while some of the East Texas judges have tried to come up with creative ways to reinterpret the Supreme Court's ruling, so far that hasn't worked that well.Still, a key aspect of the TC Heartland case was that the proper venue was the judicial district where a company actually "resides," which the Supreme Court suggested is where the company was incorporated and not just where it sold products. However, in that appeals court ruling mentioned above, interpreting part of the TC Heartland ruling, the Federal Circuit noted that there "must be a physical place in the district" as one part of a larger test. For lots of companies, that's no big deal, but Apple (a company that faces more than its fair share of patent troll lawsuits) realized it had a problem: while it's certainly not incorporated or headquartered in East Texas, it does have retail stores there. Or did. The company is shutting those stores down to prevent trolls from using that retail presence to argue East Texas is an appropriate venue.Oh and just to put an exclamation point on the reason why it did so: it's opening a new store juuuuuuuuuuuuuuust over the border into the Northern District of Texas. Apple's not officially commenting on the reason for the closures/openings but... come on. MacRumors created this lovely "rough visualization" that drives the point home pretty clearly:Not only did the overreach by judges in East Texas lead to the big industry of patent trolling they helped build up start to deflate, some of the blowback may be lots of companies -- especially in the tech world -- will simply refuse to have any presence in all of East Texas to avoid being an easy target for patent trolls.

When Charter Communications (Spectrum) proposed merging with Time Warner Cable and Bright House Networks in 2016, the company repeatedly promised that the amazing "synergies" would lower rates, increase competition, boost employment, and improve the company's services. Of course like countless telecom megamergers before it, little if any of those promises actually materialized.Instead, the company quickly set about raising prices to manage the huge debt load. And its service has been so aggressively terrible that the company recently almost got kicked out of New York State, something I've never seen in 20 years of covering telecom. All the while, the company continues to not only jack up its standard pricing, but the sneaky fees it uses to advertise one rate, then charge users something else when the bill actually comes due.We've noted for some time how cable providers over the last few years have added a "broadcast TV" fee to customer bills. Such a fee, which simply takes a part of the cost of programming and buries it below the line, lets cable providers advertise one rate, then hit customers with a higher bill. It's false advertising, but you'd be hard pressed to find a regulator anywhere in North America that gives much of a damn about the practice, be it in telecom, cable TV, the airline sector, or anywhere else. Culturally, American "leadership" appears to view such fees as the pinnacle of capitalistic creativity.So it just keeps on going. The Los Angeles Times notes that Spectrum is informing its already angry customers that they'll soon be facing yet another $2 monthly hike in the company's broadcast TV fee, on the heels of another hike just last fall. The fall hike bumped the fee 12% to an additional $8.85 per month. This latest hike bumps it another $2 (20%) to $12 per month. And again, this is just for the cost of programming, something you're supposed to have already paid for in your base, above the line bill.All told, the company nets quite a significant profit from this tap dance, notes the Times David Lazarus:

Because there's no shortage of people willing to pay money for the thrill ride that is losing a lawsuit in federal court, 1-800-LAW-FIRM and Excolo Law remain viable entities. The lawsuits they bring aren't viable, but presumably retainers have been collected before the inevitable process of dismissal-appeal-dismissal begins.These two firms are behind most of the lawsuits we've covered featuring plaintiffs attempting to hold a number of social media platforms responsible for acts of terrorism. The underlying events are tragic, but these lawsuits aren't the answer. They're ridiculous. Despite not having racked up a win at any level of the court system, the lawsuits continue to be filed. This doesn't reflect well on the law firms specializing in taking money from victims of terrorist attacks while offering them false hope of closure, if not actual compensation.The latest lawsuit filed by these firms is only novel in the respect that it features a Dallas transit officer as a plaintiff, rather than someone from the private sector. Retana was wounded in the ambush of Dallas law enforcement officers back in 2016. This is where the Twitter+terrorists boilerplate -- which fills most of the lawsuit's 96 pages [PDF] -- gets really weird. (h/t Eric Goldman)To get around the obvious Section 230 roadblock, these lawsuits invoke the US Anti-Terrorism Act (ATA). The filings tend to spend numerous pages detailing the history of whatever terrorist organization is relevant to the case, followed by a bunch of screenshots of supposed members of these groups utilizing Twitter, Facebook, et al. With this, the plaintiffs hope to convince a judge that the mere existence of terrorists on social media networks is "material support for terrorism" -- a violation of multiple anti-terrorism laws.So far, this hasn't worked. Courts have found social media companies are not directly or indirectly responsible for terrorist acts. This lawsuit deploys the same tactic, spending a great deal of time discussing terrorist organization Hamas. After 77 pages discussing Hamas and its use of social media, the lawsuit tries to tie anti-terrorism laws to social media companies and the Dallas shooter with this single, conclusory (in the legal sense, not the literal sense) sentence.

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As we've noted a few times now, the legacy entertainment business has decided that they no longer support Article 13, because it wasn't draconian enough. But, the real reason for their sudden cold feet was that there were a few indications that some of the European Courts might give them everything they wanted (and more) without even needing Article 13. And, that might just be happening. Recently a court in Italy found Facebook liable for hosting links to infringing content. Eleonora Rosati at IPKat both wrote about this and (thankfully) translated key parts of the ruling, such as the following:

We've well documented how the telecom sector is a pit of regulatory capture and dysfunction, pretty evident if you've ever tried to switch ISPs, negotiate a lower rate, or contact Comcast customer support. And since these companies have their lobbying teeth stuck deep into regulators and lawmakers (something that teeters toward parody on the state level), the government's "solutions" to the problem tend to wind up being of the decidedly half-assed variety. That's not helped by many folks who still labor under the misconception that you motivate natural monopolies to behave by eliminating already modest regulatory oversight.So every few years, regardless of the party in charge, the government will put forth a new broadband plan it promises will finally address this cavalcade of dysfunction. And time and time again, these proposals fall well short of actually pushing policies that could actually drive more competition to market, because that's the very last thing the companies holding sway over our lawmakers and regulatory agencies actually want. The result is plans that sound really good upon superficial inspection, but don't come close to fixing the real problem. Again, because the wealthiest providers don't want it fixed.That was certainly the case with the FCC's 2010 "national broadband plan," a collection of politically-timid policy goals set forth by Obama's first FCC boss, Julius Genachowski. The plan failed to really offer a solution to drive competition to market, downplayed the potential role of open access, public/private partnerships, and community broadband as useful motivators for natural monopolies, and failed to really even mention the competitive logjam at the heart of the problem.Here we are, nearly a decade later, and America's broadband problem is in many ways getting worse. As America's phone companies give up on residential broadband and deploying fiber, companies like Comcast are securing a bigger monopoly than ever across huge swaths of American broadband markets. And while many look to the miracle of wireless to somehow act as a competitive panacea, we've discussed at length how that's not likely to happen anytime soon for a wide variety of reasons, most of which also have to do with too little competition in both retail and the business data services market.Enter the Trump administration. Last week, the National Telecommunications and Information Administration (NTIA) released its American Broadband Initiative Milestones Report, the latest update to the administration's inter-agency agenda plan to "stimulate increased private investment in broadband infrastructure" and finally cure what ails the U.S. broadband sector:

Late last summer, the DOJ attempted to get a court to force Facebook to break encryption on its Messenger service so investigators could tap into phone calls being made by criminal suspects. Facebook responded that doing so would fundamentally alter the way Messenger works. The request was a non-starter according to Facebook. According to the DOJ, it was nothing more than asking a few smart people to do a few smart things, so the burden Facebook complaints about "burdensome requests" was overstated.A couple of months later, the DOJ had again failed to obtain favorable anti-encryption precedent. The underlying documents remain under seal, but sources "close to the case" had indicated the court had sided with Facebook.The secret litigation over software alterations that would affect millions of Facebook users continues. Messenger's encryption is no longer at stake -- at least not for the time being -- but the government still wants the public to stay out of its private discussions with our federal court system.Petitions have been filed by a number of rights groups and journalists to have these documents unsealed. According to the latest Reuters report on this legal battle, the federal court in California is siding with the government on this issue.

This week, our first place winner on the insightful side is an anonymous response to one take on the Covington student defamation lawsuit, insisting the Washington Post was reckless and defamatory for not waiting to have more information before publishing an article about the incident:

Yesterday, we announced the winners of our public domain game jam, Gaming Like It's 1923. We had a lot of great entries that deserve to be played, so for the next few Saturdays we're going to highlight some of the winning in the various categories.This week, it's our winner for Best Digital Game: Stopping by Woods on a Snowy Evening to Steal Treasure by Alex Blechman.Most of you are probably familiar with the Robert Frost poem, Stopping by Woods on a Snowy Evening, which was published in 1923 and as of this year is officially in the public domain. Well, here's what the introduction of this tongue-in-cheek game adaptation has to say about that:

An new annual tradition in the halls of Congress is being celebrated with the introduction of legislation targeting PACER fees.

It's clear at this point that the automated filtering and flagging done by YouTube is simply not good. Whatever legitimacy the platform might want to have by touting its successes must certainly be diminished by the repeated cases of YouTube flagging videos for infringing content that isn't infringing and the fact that the whole setup has been successfully repurposed by blackmailers that hold accounts hostage through strikes.While most of these failures center around ContentID's inability to discern actual intellectual property infringement and its avenues for abuse, YouTube's algorithms can't even suss out more grave occurrences, such as child exploitation. This became apparent recently when multiple Pokemon streamers had their accounts nuked due to discussions about child pornography that never occurred.

For many years, we wrote about the infamous monkey selfie copyright situation (and lawsuit) not just because it was hellishly entertaining, but also because the legal questions underlying the issue were likely to become a lot more important. Specifically, while I don't think anyone is expecting a rush of monkey-authored works to enter the market any time soon, we certainly do expect that works created by computers will be all over the damn place in the very, very near future (and, uh, even the immediate past). Just recently, IBM displayed its "Project Debater" offering, doing an AI-powered realtime debate against a human on the "Intelligence Squared" debates program. A few days after that, the Guardian used OpenAI to write an article about itself, which the Guardian then published (it's embedded about halfway down the fuller article which is written by a real life human, Alex Hern).In both cases, the output is mostly coherent, with a few quirks. Here's a snippet that shows... both:

Yesterday, we wrote about web developer Daniel Quinn's harrowing experience receiving a $20,000 payment demand from copyright troll Higbee & Associaties. That post ended with Quinn explaining how he found lawyer Carolyn Homer to represent him. Today, we have a companion post by Homer to talk about her experience investigating and dealing with Higbee, and calling out some of his questionable legal practices.The moment I saw Higbee’s demand letter to Daniel Quinn I knew I was dealing with a troll. Although I’ve recently joined the #resistance, I spent the first five years of my career defending Silicon Valley companies against mass copyright trolls. Higbee is new to me, but I know this game.I immediately scanned his demand letter for problems. There were many — Michael Grecco’s power of attorney authorization isn’t even signed! — but I’ll focus on three major ones.Major Defect # 1: Pricing Unmoored From Market RealityAs Daniel quoted yesterday, Higbee’s November letter threatens litigation, statutory damages up to $150,000 and attorney fees. Supposedly to avoid this terror of litigation, Higbee demands payment of $20,000 within seven days, accompanied by a non-disclosure agreement.Daniel Quinn did not pay the $20K. So Higbee sent a December follow-up letter which escalates the demand: “[P]lease do not make the mistake of ignoring this. If this matter is litigated, the demand amount will likely quadruple or more, and then you will also likely have to pay attorneys fees.”Higbee’s message is clear: pay $20,000 now or risk litigation and $80,000—maybe even $150,000—later.None of those numbers make sense. The market rate for a license to publish most individual photos on the internet ranges between $0-$1000. Similarly in my experience, typical litigation damages for adjudged infringement of individual photos on the internet range between $200-$2000. At this exact moment in time, a photograph from Michael Grecco’s same X-Files photoset is available to license for $1800. And that is itself insanely high—there’s a multitude of other professional X-Files stills available from stock photo agencies Alamy and Getty for $49-$499.Higbee’s settlement demand price for a single Grecco photo is facially absurd.Major Defect # 2: Ineligibility for Statutory DamagesHigbee’s utter divorce from market reality aside, the firm might have an arguable basis for demanding $20,000 if Grecco was eligible to recover statutory damages. Due to the insanity of copyright law, $150,000 is the maximum statutory recovery for willful infringement. See 17 U.S.C. § 504(c)(2). Numerous commentators and courts have rejected that top-line figure as insanely out of proportion to the actual damages caused from publication of a single photograph on the internet. Most thoughtful people consider the $200-$750 minimum statutory damages numbers to be more fair. Nevertheless, the max-$150,000 provision exists.But it was immediately apparent to me that Higbee and Grecco have no claim to either statutory damages or attorneys’ fees. Daniel Quinn posted his X-Files review on May 24, 2016. Higbee’s demand letter includes a Michael Grecco copyright application (not an issued registration) dated January 22, 2017. Absent an issued registration, Grecco is not eligible to even file a lawsuit. See 17 U.S.C. § 411(a).Moreover, the Grecco application discloses the X-Files image’s first publication date as October 25, 1993. The X-Files image was published 23 years prior to Quinn’s use on his personal blog—which itself occurred 8 months prior to Grecco even bothering to apply to register it. The Copyright Act does not permit recovery of statutory damages or attorneys’ fees for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration.” 17 U.S.C. § 412.Higbee / Grecco is threatening a lawsuit seeking $80,000 dollars in statutory damages plus attorneys fees for dquinn.net’s use of an unregistered thumbnail image Quinn found on Flickr. It took me two minutes to line up the dates and realize statutory damages did not apply. Higbee couldn’t bother to expend the same two minutes of effort before his firm spent two months chasing Quinn with threatening emails, letters, and phone calls demanding tens of thousands of dollars?I wrote a letter to Higbee & Associates on January 18, 2019, detailing this and other problems with their demand. I called them out for demanding statutory damages and attorneys fees for which Michael Grecco is plainly ineligible. A couple days later I received a response from one of their copyright associates, Theodore Sell. His email read like he had rush-typed it with his thumbs on his iPhone while stuck in L.A. rush-hour traffic.Regarding statutory damages, Sell wrote:

Great news on the asset forfeiture front, courtesy of the highest court in the land. The Supreme Court has ruled that forfeitures can violate the Eighth Amendment's protections against excessive fines.The case the Supreme Court ruled on deals with Indiana native Tyson Timbs. Timbs sold $260 worth of heroin to undercover officers. He pled guilty to criminal charges. The state decided to forfeit his $42,000 Land Rover via civil asset forfeiture, routing around the criminal system to make it easier for cops to make off with his vehicle. Timbs challenged this forfeiture as an excessive fine, given that the max fine for his criminal charges was $10,000.This case made its way to the state's Supreme Court, which overturned the lower court's decision finding in favor of Timbs and the US Constitution, which Indiana had incorporated. The state's highest court stated that this clause of the Eighth Amendment did not apply to civil asset forfeiture. This was a bizarre position to take, as the Supreme Court pointed out during oral arguments.

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The votes are in, and it's time to announce the winners of the Gaming Like It's 1923 game jam!At the beginning of January, we decided to celebrate the long-awaited entry of new works into the public domain with a game jam, inviting designers to submit games of all kinds based on newly-copyright-free works from 1923. We got way more entries than we expected, and handed them off to our huge judging panel of game designers and copyright experts, who left comments and nominated them in our six prize categories. Now we've tallied up the votes and reviews, so without further delay, here are the winners of Gaming Like It's 1923:Best Analog Game — Permanence by Jackson TeguThis award goes to the best overall non-computer game, with a clear consensus emerging from the judge's review scores. Permanence is perplexing at first glance, and requires some serious prep work, but sometimes that's the cost of a game this unique and creative. Using the format of a book that can be read in two directions, it weaves the painting Metempsychosis by Yokoyama Taikan and poetry from the book The Prophet by Kahlil Gibran into an artistic gaming experience that isn't quite like anything you've seen before.Best Digital Game — Stopping by Woods on a Snowy Evening to Steal Treasure by Alex BlechmanThe award for best digital game goes to this short, sweet, simple, and above all entertaining take on Robert Frost's famous poem. Stopping by Woods on a Snowy Evening to Steal Treasure tasks you with jazzing up the verse by subbing in some new material to entertain a modern gaming audience. Give it a try, or two or three...Best Adaptation — God of Vengeance by jrgoldbThis award goes to the game that most faithfully and meaningfully adapted its source material, carrying its original intent forth into a new medium. God of Vengeance, based on the 1923 Yiddish language play of the same name, is an analog storytelling game that puts players in the main roles from the play and provides an interesting mechanical framework for improvising scenes and exploring the themes of a work they might otherwise have never encountered.Best Remix — Will You Do The Fandango? by Lari AssmuthThis award goes to the game that made the best combined use of multiple public domain works. Will You Do The Fandango? starts with the 1923 film Scaramouche, but then draws on the whole world of Commedia dell'Arte and the mechanics from games like Apocalypse World and Lady Blackbird. The result is a high-energy tabletop roleplaying game, complete with dice and stats, in which a troupe of traveling players tour revolutionary France engaging in bombastic drama and romance — with printable masquerade masks to boot!Best Deep Cut — Not a Fish by J. WaltonThis award is for the best use of an obscure or unexpected source that doesn't appear on the typical roundup lists of works entering the public domain, and the cuts don't get much deeper than Not a Fish: a game based on a pair of 1923 science journal articles about Amphioxus fisheries in China. Like the jigsaw puzzles that inspired the mechanics, the game starts out seeming jumbled, but it quickly starts to resolve into an exploration of social and political themes you might not be expecting from the subject matter.Best Visuals (Tie!) — Chimneys and Tulips by litrouke, and The Garden of God by DreadRoachThere wasn't a single stand-out winner for the best visuals category, and understandably so — one month is scarcely enough time to create or assemble a game's worth of stunning graphics. Instead, the award for best visuals goes to two browser-based submissions which, while they have their limitations, certainly caught our eye.Chimneys and Tulips is a creative arrangement of four poems by E. E. Cummings, with a focus on beautiful minimalist design. Though the gameplay is somewhat lacking, a lot of work and vision went into the colorful style in which the works are presented, and while the interactive elements may be simple, they aren't arbitrary. Fans of poetry, and of typography, will find plenty to explore.The Garden of God is a short narrative experience based on the novel of the same name by H. De Vere Stacpoole. It's built in RPG Maker MV, and most of the visuals are stock sprites and graphics from that tool — but a lot of thought and effort went into how they were used. The game has multiple unique settings and maps, and well-choreographed scripted scenes with attention to background detail.All the winners in all categories will receive their choice of a copy of our public domain card game CIA: Collect It All, or one of our copyright-themed t-shirts from Teespring. We'll be reaching out to all the winners on their games' Itch pages, so if you see your game listed here, keep an eye on your incoming comments!Thanks again to everyone who submitted a game — there are lots of entries worth checking out in addition to the winners. And thanks again to our panel of judges:

In an article for Quillette titled, “It Isn’t Your Imagination: Twitter Treats Conservatives More Harshly Than Liberals,” Columbia University research fellow Richard Hanania offers us proof–once and for all–that social media companies are biased against conservatives. Either that, or it’s the latest in a growing list of bogus, exaggerated or otherwise dubious anti-conservative bias claims (I’ll let you judge for yourself).“Until now, conservatives have had to rely on anecdotes to make their case,“ Hanania writes. Adding that, “[m]y results make it difficult to take [social media platforms’] claims of political neutrality seriously.” The data he collected (with the help two research assistants, no less) looks at “prominent, politically active” people suspended from Twitter since the company’s launch in 2006.Accounts included in the data set were selected from individuals and organizations whose suspension was covered in a “mainstream” news outlet, and who expressed a preference for either Donald Trump or Hillary Clinton in the 2016 presidential election.Out of 22 (!!!) accounts in the data set that met these criteria, 21 (or 95%) were Trump supporters. Despite the small sample size, the author argues this is compelling evidence for Twitter’s anti-conservative bias. Even if conservatives are more likely to break Twitter’s rules, he argues, it “doesn’t seem credible” the disparity would be so wide.But let’s look a little more closely at this. These are the 22 accounts make up the data set:

As several Attorneys General and the FBI investigate who was behind the fake net neutrality comments that plagued the FCC website during the late 2017 repeal, reporters like Jason Prechtel and Gizmodo's Dell Cameron continue to slowly and methodically connect the dots. Last month, Cameron obtained leaked investigation data linking many of the bogus comments to several Trumpland-linked astroturfing and policy operations like "Free Our Internet," a bogus consumer-rights group specifically built by ex-Trump campaign staffer Christie-Lee McNally.And this week, both Prechtel and Cameron leaned on FOIA data to discover that another sizeable chunk of the bogus comments were allegedly driven by both CQ Roll Call, a DC-based news and policy organization, and Center for Individual Freedom (CFIF), a "dark money" influence group with historical ties to defending tobacco companies:

Promoters of the EU destructive copyright directive keep pushing the bogus line that it is necessary to give money to "artists and journalists." Take, for example, MEP Axel Voss (the EU Parliament member in charge of all of this nonsense) and his press release touting the final text:

Recently, we discussed a proposed change to Japanese copyright law that would make literally all downloading of copyrighted material a criminal matter, rather than a civil one. This change would be fairly bonkers for an entire host of reasons. It has the potential to clog up the criminal courts with the same kind of minor copyright infringement cases that clog up America's civil courts. It would put a decisive chill on the sharing culture that brought the internet to its current state to begin with. And it would further the culture of ownership and protectionism already far too common across the globe.And, as states an "emergency statement" issued by nearly a hundred Japanese academics, it would possibly criminalize the kind of personal copying that facilitates research, education, and personal growth.

Google this week found itself in luke warm water after Nest Secure users discovered that their home security system contained a "hidden" microphone the company had never publicly disclosed. The reveal came via a Google announcement sent to Nest customers earlier this month, informing them that their Nest Secure base stations (the motion detector and keypad at the heart of the system) would soon be updated to include Google Assistant functionality, essentially converting the hardware into another way to issue voice commands around the home:

Tech companies are becoming far more than useful repositories of third party records. They're becoming far more active in terms of surveillance, pivoting from platform providers to private sector Big Brothers, weaponizing their data collection capabilities to keep tabs on customers and users.Facebook has decided to start scanning its platform for threats. Not threats against the many nations it serves or threats targeting other users, but rather threats against Facebook itself.

Last week we wrote about the questionable practices of copyright troll Mathew Higbee, based on thorough research from lawyer Paul Levy. As we noted in the post, we've heard from a few recipients of Higbee's questionable letters, and one has agreed to share his experience. This will be a two part series, with the first part, below, written by the recipient of the threat, web developer Daniel Quinn, and tomorrow, more information from the perspective of his lawyer, Carolyn Homer.Hi. My name's Daniel Quinn. Off the bat, there's a few things you should know about me:

Lawsuits were threatened after students from a Kentucky Catholic school were portrayed as engaging in racist behavior during an anti-abortion march at the nation's capital. An edited video swiftly circulated the internet, showing student Nick Sandmann facing off with a Native American protester while wearing a seemingly-smug file on his face and a Make America Great Again hat on his head.More footage of the incident appeared later providing a bit more context, making the obvious racism seem less obvious. But the Twitter ship had sailed and there was little hope of turning it around. Lessons could have been learned from rushing to judgment, but Nick Sandmann and his family's lawyers have decided this lessons should be taught via libel lawsuits. They've got an uphill battle as nearly everything said about Sandmann and the incident was protected opinion, but a lack of credible arguments has never prevented lawsuits from being filed.As Buzzfeed reports, one of the first targets is the Washington Post. Sandmann's complaint [PDF], composed by attorneys Lin Wood and Todd McMurtry, is about half op-ed, half federal complaint. Here's the lead off:

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There's a pretty fascinating profile last week in Billboard magazine of teenage musician/rapper NLE Choppa who just turned down a $3 million record label deal. Choppa (real name: Bryson Potts) rocketed to fame thanks to YouTube, where his Shotta Flow video was uploaded just last month, but has over 10 million views.When given the chance to sign with a bunch of different labels all bidding for him, he decided to take a very different deal -- one where he retains all the rights and just partners with a distribution company, UnitedMasters:

Remember when the cable industry used to pretend that cord cutting wasn't real? Or perhaps you remember that once the industry was actually willing to admit it was a real trend, they'd claim it was only something being done by losers living in their parents' basement?Or perhaps you'll remember the cable and broadcast industry claims that cord cutting was just a temporary phenomenon that would go away once the housing markets stabilized and Millennials started procreating? Or how companies like ESPN routinely claimed that warnings about the trend were an unimportant fiction that should be ignored?Good times.While there are still a few sector analysts and executives here and there who'll bizarrely try to downplay one of the biggest trends in TV industry history, the numbers keep making it harder and harder to keep one's head buried a foot below ground. Last year, for example, once again saw one of the highest defection rates of traditional TV subscribers in recent memory. According to Wall Street analysts, the top pay TV providers lost 2.5 million subscribers last year alone:

If an appeals court doesn't step in within the next few days, California law enforcement agencies will have to start handing out police misconduct records to records requesters.Since the new transparency law went into effect at the beginning of this year, California police unions have been rushing to stop it from having any meaningful effect. The unions are hoping courts will side with their take on the law -- a take that allows law enforcement agencies to memory-hole misconduct and use of force files predating the law's effective date.The author of the law, Senator Nancy Skinner, made it clear the new law applies retroactively. The state attorney general, Xavier Becerra, chose to ignore the clarification sent directly to his office by the Senator, and claimed the issue of retroactivity was still open.The issue isn't as open as Becerra and a few dozen police unions think it is. One court has already said the law should apply retroactively, lifting its temporary injunction pending an appeal. Now another court has sided with the public and greater accountability, stating that the new law can reach old misconduct files.

When one thinks about an Instagram account being taken over by a malicious actor, one usually imagines some kind of hack or social engineering resulting in the theft of an account password. The refrain "It wasn't me, I was hacked!" that you hear from some whose social media profiles are the subject of social scrutiny relies on this impression.But there are many different ways to hack a cat. The latest in Instagram account takeovers appears to be done through the avenue of trademark law, interestingly enough. Motherboard has a fascinating write-up detailing an entire ecosystem of malicious actors who are abusing trademarks to convince Instagram to hand over access to accounts.

A handful of semi-famous people rang in the New Year by bringing copyright infringement lawsuits against online gaming juggernaut, Fortnite. The plaintiffs all accused Fortnite's developers of swiping their dances to use as sellable "emotes" for players' avatars.There were several problems with these lawsuits, not the least of which were the claims Fortnite infringed on uncopyrightable dance steps. While the copyright office is willing to extend protection to choreographed dances with sufficiently complex steps, the dances at the center of these lawsuits hardly met the bar for protected creativity.That leads to one of the other problems: while statutory damages were threatened in the lawsuits, none of the plaintiffs appeared to have secured copyright protection for their dance steps before filing their lawsuits. The one filed by Alfonso Ribeiro -- targeting Fortnite's use of the "Carlton Dance" -- mentioned he had filed a registration for his dance but hadn't actually been granted any protection yet.Ribeiro spoke both too late and too soon. Can't seek statutory damages without a registration. And you can't use a registration as leverage for a settlement if the US Copyright Office doesn't find your dance sufficiently creative.

California law enforcement's fight against transparency and accountability continues. Since a new law allowing the public to access police misconduct record went into effect, the following has happened:

Yesterday we published Part I of Danish journalist/author and Cato Institute Fellow Flemming Rose's very interesting conversation with Dutch MEP Marietje Schaake concerning questions around internet platforms and regulation. This is the second and final part of that conversation.FR: I want to focus on the small players. People concerned about regulation saythat if you only focus on the big players like Facebook, Google or Twitter and howto regulate them, you will make it very difficult for the small players to stay in themarket because transaction costs and other costs connected to regulation will killthe small companies. Regulation becomes a way to lock in the existing regime andmarket shares because it takes so many resources and so much money to stay inthe market and compete. And new companies will never be able to enter themarket. What do say to that argument?MS: It depends on how the regulations are made but it is a real risk. It is the risk ofGDPR (general data protection regulation), and with filtering assuggested now. The size of a company is always a way to assess whether there is aproblem, and I think we should do the same with these regulations so that therecould be a progressive liability depending on how big the company is or therecould be some kind of mechanism that would help small or medium sizecompanies to deal with these requirements. Indeed, it is true that for companiesthat have billions of euros or dollars of revenue, it's easy to deploy lots of people.A representative of Google yesterday (at a conference in the European Parliament)said they have 10,000 people working on content moderation. Those areextraordinary figures, and they are proportionate because of the big the impact ofthese companies, but if you are a small company you may not be able to do it, andthis is always an issue. It's not the first time we have been dealing with this. Withevery regulation the question is how hard it is for small and medium enterprises.FR: The challenge or threat from misinformation is also playing a big role in thedebate about regulation and liability. We will soon have an election in Denmark.Sweden recently had an election where there was a big focus on misinformation,but it turns out that misinformation doesn't work as well in Denmark as in the USor some other countries because the public is more resilient. Why not focus moreon resilience and less on regulation so people have a choice? We are up againsthuman nature, these things are triggered by tribalism and other humancharacteristics. To counter it you need education, media pluralism, and so on.MS: I think you need to focus on both. First, what is choice if you have a few nearmonopolies dominating the market? Second, how much can we expect fromcitizens? If you look at the terms of service for a common digital provider that youand I use, they are quite lengthy. Is that a choice for a consumer? I think it'snonsense. That's one thing. Moreover, we are lucky because we are from countrieswhere basic trust is relatively high, media pluralism exists, there are many politicalparties, and our governments will be committed to investing in education andmedia pluralism, knock on wood. How will this play out in a country like Italywhere basic trust is lower and where there is less media pluralism, how are you evergoing to overcome this with big tech, so I think there is a sufficient risk if you lookat the entire European Union, Hungary and other countries, that governments willnot commit resources to what is right and they will create the kind of resilience thatour societies already have. In the Netherlands trust in the media is among thehighest, and it's probably also because of a certain quality of life and certain kindof freedom that people have enjoyed for a long time. Even in our country you see alot of anti-system political parties rise, so it's not a given that this balance willcontinue forever because it requires public resources to be spend on media andother factors. So I think both are very important and I don't want to suggest that weshould not involve people but I don't know if we can expect of the average citizento have the time and the ability to have access to information it would take to makethem resilient enough on their own.FR: Do you think a version of the German "Facebook law" with the delegation oflaw enforcement to the digital platforms will make it to the agenda of lawmakers inthe European Parliament?MS: No, I think there are too many flaws in it. It's bad. Some form ofresponsibility on behalf of companies to take down information will exist, but Ihope the law will be the primary tool. The companies will take down contentmeasured against the law with the proper safeguards and proportionality. If thereare incentives like big fines to be overtly ambitious in taking down information,that's a risk. But on the other hand, the platforms as private companies alreadyhave all the freedom they want to take down any information with a reference totheir terms of use. We are assuming that they are going to take the law as guidance,but nothing indicates they will. In fact, Facebook doesn't accept breastfeedingpictures, so they are already setting new social norms. A new generation may growup thinking breastfeeding is obscene. The platforms are already regulating speech,and people who are scared about regulation should understand that it is MarkZuckerberg who is regulating speech right now.FR: Recently the EU praised the Code of Conduct to fight hate speech online that they signed with the tech companies in 2016. A lot of speechhas been taken down according to the EU: 89 percent of flagged content within 24hours in the past year, but my question is: Do we know how much speech has beentaken down that should not have been taken down?MS: No, we don't know.FR: That will concern those who value free speech. You have the law and you havecommunity standards and then you have a mob mentality, i.e. the people who arecomplaining most and screaming louder will have their way and they will set thestandards. So if you organize people to complain about certain content, it will betaken down to make life easier for Facebook and Twitter and Google.MS: Yes.FR: So you agree that it's a concern?MS: It's a huge concern. If you believe in freedom of expression which I knowyou do, and I think it's one of the most important rights and so many people havebeen fighting for it, why will we give it up? Just a little bit of erosion of freedom ofexpression is a huge danger and therefore to put responsibility on these companiesto take down content without a check against the law is a risk, to allow thesecompanies to set their own terms of use that can be at complete odds with the lawand also with social norms (consider the restrictions on the breastfeeding, onItalian Renaissance statues as pornographic, or on the photo of a naked girl hit bynapalm in Vietnam). Let me give you an example from my own experience.I gave a speech here in parliament, it was a very innocent and clearly politicalspeech, but it was taken down by YouTube. They said it was marked as spam,which I don't believe. I have never posted anything that was labeled spam. What Ithink happened was that my speech was about banning goods and trade that can beused for torture and the death penalty. I think that the machine flagged torturebecause torture is bad, but a political debate about torture is not bad. I took ascreenshot of the fact that YouTube took it down, posted it on twitter and said"wow!, see what happened", and they were on the phone within two hours, butthat's not the experience most people (including the people I represent) will have.That's the danger. We also know examples of Russians having flagged Ukrainianwebsites and then they were taken down. And if that happens to a politicalcandidate in the last 24 hours before an election it could be decisive, even if thecompanies say they'll restore it within 24 hours.FR: I spoke to a representative from one of the tech companies who said that whenthey consult with German lawyers whether something is legal or not, they will getthree different answers from three different lawyers. He said that his companywould be willing to do certain things on behalf of the government, but it requiresclear rules and today the rules aren't clear.MS: Right, so now you see incentives coming from the companies as well. It's nolonger working for them to take on all these responsibilities whether they arepushed to do so or just asked to do it. The fact that they have to do things is also aconsequence of them saying "don't regulate us, we can fix this." I think it's aslippery slope. I don't want to see privatized law enforcement. What if Facebook isbought by Alibaba tomorrow? How happy would we be?FR: I want to ask you about monopolies, competition and regulation. If you goback to 2007 MySpace was the biggest platform, then it was outcompeted byFacebook. As you say, there are concerns about the way Facebook manages ourdata and its business model with ads and sensational news driving traffic andgetting more eyeballs. But why not let the market sort things out? If there isdissatisfaction with the way Facebook is running their business and our data, whynot set up a competing company based on a different business model that willsatisfy customers' need?MS: States don't built companies in Europe.FR: I was having private companies in mind. Netflix has a subscription model,wouldn't a digital platform like Facebook be able to do the same?MS: I think it would be difficult now, because there is a lock-in effect. In Europewe are trying to provide people with the ability to take their data out again. If youuse gmail for 12 years, your pictures, your correspondence with your family andloved ones, with your boss and colleagues, it could all be in there, and you want totake all those data with you. It's your correspondence, it's private, you may need itfor your personal records. You may have filed your taxes and saved your returnsand receipts in the cloud. If you are not able to move that data to another place,then competition exist only in theory. Also, if you look at Facebook, almosteverybody is on Facebook now. For somebody else to start from scratch and reacheverybody is very difficult. It's not impossible but it's difficult. And for thosemodels to make money the question is how much are customers willing to pay asrequired by the subscription model?Facebook and Google already have so much data about us. Even if I am not onFacebook, but all my friends are, then a sketch of my identity emerges because Iam the empty spot between everybody else. If people start posting pictures of abirthday party with the 10 people who are on Facebook and the one person that isnot, and then somebody says I can't wait to go on holiday with Marietje orwhatever, then at some point it would be clear who I am, even if I am not on theplatform, so they already know so much and they already has access to so muchdata about people's behaviour that effectively it will be very hard for anycompetitor to get close, and we have seen it in practice. Why hasn't there beenmore competition?FR: Do you compare notes with US lawmakers on this? And do you see that yourpositions are getting closer to one another?MS: Yes.FR: Can you say a bit more about that?MS: First of all the talk has changed. The Europeans were dismissed as beingjealous of US companies and therefore proposing regulations, i.e. we wereproposing regulations in order to destroy US competitors. I don't think that's true,but this stereotypical view has been widespread. Also, we were being accused ofbeing too emotional about this, so we were dismissed as being irrational which isquite insulting, but not unusual when Americans look at Europeans. I think we arein a different place now with a privacy law in California, with New York Timeseditorials about the need for tougher competition regulations, with senatorsproposing more drastic measures, with organizations like the Center for HumaneTechnology focusing om time well spent, and with Apple hiring people to focus onprivacy issues. Recall also conversations about inequality in San Francisco. Wehave a flow of topics and conversations that suggest that the excessive outcomes ofthis platform economy need boundaries. I think this has become more and moreaccepted. The election of Donald Trump was probably the tipping point. Welearned later how Facebook and others had been manipulated.FR: You said that the problem with these companies is that they have become sopowerful and therefore we need to regulate them. Is the line between public andprivate as blurred in Europe compared to the US? You focus on power no matterwhether it's the government or a private company when it comes to protection offree speech, while in the US the First Amendment exclusively deals with thegovernment. Do you see that as a fundamental distinction between Europe and theUS?MS: There are more articulated limitations on speech in Europe: for example,Holocaust denial, hate speech and other forms of expression may be prohibited bylaw. I think there is another context here that matters. Americans in general trustprivate companies more than they trust the government, and in Europe roughlyspeaking it's the other way round, so intuitively most people in Europe wouldprefer safeguards coming from law than trusting the market to regulate itself. Thatmight be more important than the line between private and public and the FirstAmendment compared to European free speech doctrine.

Law enforcement agencies love their automatic license plate readers. ALPRs do what cops physically can't: scan millions of plates a year and run them against a number of shared databases. The systems are black boxes. The public is often given little information about how many plate images databases store or for how long. Law enforcement agencies rarely audit the data, providing zero insight on the number of false positives ALPRs return. Non-hit photos are sometimes held indefinitely, creating databases of people's movements.All of these negatives are supposed to be outweighed by the fact that cops sometimes catch criminals with ALPRs. How often this happens is anyone's guess. Officials will tout the tech's ability to track down criminals, but these anecdotes are usually only provided when government officials start asking questions about the tech -- questions they should have asked during the approval process.Getting tagged as a hit by an ALPR is a frightening experience for innocent drivers. The tech tells cops they have a potentially dangerous criminal on their hands and they react accordingly. Drivers are somehow supposed to prove a negative at gunpoint and their inability to do only ratchets up the tension.A false hit by an ALPR has resulted in a federal lawsuit [PDF]. And the Contra Costa (CA) Sheriff's Department quite possibly found the worst person to pull over because a machine told it to.

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It appears that Supreme Court Justice Clarence Thomas has decided to drop quite a First Amendment bombshell this morning -- suggesting that over half of a century of "settled" First Amendment law might not be so settled.But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.

Both Sprint and T-Mobile have been pushing a large number of bogus claims justifying their competition and job-eroding megamerger. One, that the deal will create jobs (false). Two, that the deal is necessary to deploy fifth-gen (5G) wireless (false). Three, that reducing the number of major wireless competitors from four to three will somehow create more competition (false, just ask Canadians or the Irish how that works out in practice).On that last front, the two companies have been trying to claim that because cable industry giants Comcast and Charter (Spectrum) have been flirting with wireless connectivity, that this constitutes enough additional competition to keep the sector healthy in the wake of such massive consolidation. In one T-Mobile deal-related announcement, company CEO John Legere was exceptionally creative in an effort to hallucinate up some additional competition:

One of the more obnoxious elements of the EU politicians brushing off the concerns of the public concerning the EU Copyright Directive, is their repeated, insulting and incorrect, claim that there really isn't a public upswell against Articles 11 and 13 and that it's all just manufactured by Google and "bots" and "astroturfing." We've already pointed out that nearly 5 million people have signed the Change.org petition protesting Article 13 -- making it the largest petition on that site ever. And those are real people signing on.And those real people are now showing up to protest as well. As highlighted by Drew Wilson at FreezeNet:

It's been a source of confusion for me over the past few years how there can possibly be so much conflict in the realm of vanity license plates. While I can understand the need for something in the way of rules when it comes to government-mandated plates, it's still the case that such plates are a form of expression and, given the government mandate, one would think the government would tread lightly when it comes to overly restrictive rules for them. And, yet, stories about agencies disallowing Star Trek references because ignorant people think they're racist, about police being unable to have a plate that reads "O1NK", and about governments somehow thinking IT-related terms are sexual abound.At first glance, one man's request for a vanity plate that reads "ASSMAN" might appear to be outside of these types of cases. After all, even the vulgar among us might understand a government worker disapproving of such a request out of concern for the purity of all the other drivers out there. On the other hand, when the denial for an "ASSMAN" vanity plate leaves the Canadian government offices in an envelope addressed to David Assman, it seems we're right back in the territory of the prudishly absurd.

The ugly Houston PD drug raid that resulted in four injured officers and two dead "suspects" just keeps getting uglier.Officers swore a confidential informant purchased heroin from 59-year-old Dennis Tuttle in the house he shared with his wife of 21 years, Rhogena Nicholas. They swore the CI told them the house was filled with heroin packaged for purchase.On the strength of this confidential informant's claims, officers obtained a no-knock warrant and raided Tuttle's house. The officers claimed Tuttle opened fire on them and that his wife tried to grab a shotgun from a downed officer. This was the supposed reason for SWAT team's killing of Tuttle and Nicholas.This was the narrative everyone was given. Not a single officer was wearing a body cam, despite the department possessing dozens of them. The only footage that survived -- captured by a neighbor's security camera -- was confiscated by the Houston PD.Even in this vacuum of information, the PD's narrative quickly fell apart. No large amounts of heroin were found during the raid -- just personal use quantities of heroin cocaine and marijuana. The inventory also included a few guns, which the PD has treated as inherent evidence of criminality despite the fact both Tuttle and his wife could legally own the weapons found in the house. The only criminal history either of them had was an old misdemeanor charge for a bad check.Now that the PD's investigation into this raid is underway, it's becoming clear the official narrative -- a daring no-knock raid that took out dangerous heroin dealers -- isn't going to survive. The new narrative already includes multiple lies by police officers and a lot of supporting evidence.First off, the raid inventory does not include the weapon officers claimed Tuttle fired at them.

We can hardly believe it, but as of this moment we've released 200 episodes of the Techdirt podcast! For this milestone, we've brought the increasingly-rare original team of co-hosts back together for a bit of a meta-episode all about podcasts — specifically, the recent news that Spotify has acquired Gimlet Media for the impressive and, to many, surprising sum of $230-million. Mike joined by Dennis Yang and Hersh Reddy to discuss what Spotify might be up to, and just how big the podcasting business really is.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.

We are cross posting the following interview conducted by Danish journalist, Cato Institute Senior Fellow, and author of The Tyranny of Silence, Flemming Rose with European Parliament Member from the Netherlands, Marietje Schaake -- who we've discussed on the site many times, and who has even contributed here as well. It's an interesting look at how she views the question of regulating internet platforms. Since this is a relatively long interview, we have broken it up into two parts, with the second part running tomorrow.Marietje Schaake is a leading and influential voice in Europe on digital platformsand the digital economy. She is the founder of the European Parliament Intergroupon the Digital Agenda for Europe and has been a member of the EuropeanParliament since 2009 representing the Dutch party D66 that is part of the Allianceof Liberals and Democrats for Europe (ALDE) political group. Schaake isspokesperson for the center/right group in the European Parliament on transatlantictrade and digital trade, and she is Vice-President of the European Parliament's USDelegation. She has for some time advocated more regulation and accountability ofthe digital platforms.Recently, I sat down with Marietje Schaake in a café in the European Parliament inBrussels to talk about what's on the agenda in Europe when it comes to digitalplatforms and possible regulation.FR: Digital platforms like Facebook, Twitter and Google have had a consistentmessage for European lawmakers: Regulation will stifle innovation. You have saidthat this is a losing strategy in Brussels. What do you mean by that?MS: I think it's safe to say that American big tech companies across the boardhave pushed back against regulation, and this approach is in line with the quasi-libertarian culture and outlook that we know well from Silicon Valley. It hasbenefited these companies that they have been free from regulation. They havebeen free not only from new regulation but also have had explicit exemptions fromliability in both European and American law (Section 230 in the US and theIntermediary Liability Exemption in the E-commerce Directive in the EU). At thesame time they have benefited from regulations like net neutrality and othersafeguards in the law. We have been discussing many new initiatives here in theEuropean Parliament including measures against copyright violations, terroristcontent, hate speech, child pornography and other problems. digital platformsreaction to most of the initiatives has at been at best an offer to regulatethemselves. They in effect say, "We as a company will fix it, and please don'tstifle innovation." This has been the consistent counter-argument againstregulation. Another counter-argument has been that if Europe starts regulatingdigital platforms, then China will do the same.FR: You don't buy that argument?MS: Well, China does what it wants anyway. I think we have made a big mistakein the democratic world. The EU, the US and other liberal democracies have beenso slow to create a rule-based system for the internet and for digital platforms.Since World War II, we in the West have developed a rules on trade, on humanrights, on war and peace, and on the rule of law itself; not because we love rules inand by themselves, but because it has created a framework that protects our way oflife. Rules mean fairness and a level playing field with regard to the things I justmentioned. But there has been a push-back against regulation and rules when itcomes to digital platforms due to this libertarian spirit and argument about stiflinginnovation, this "move fast and break things" attitude that we know so well fromSilicon Valley.This is problematic for two reasons. First, we now see a global competitionbetween authoritarian regimes with a closed internet with no rule of law anddemocracies with an open internet with the rule of law. We have stood by andwatched as China, the leading authoritarian regime, has offered its model to theworld of a sovereign, fragmented internet. This alternative model stiflesinnovation, and if people are concerned about stifling innovation, they should takemuch more interest in fostering an internet governance model that beats theChinese alternative. Second, because with the current law of the jungle on theinternet, liberal democracy and democratic rights of people are suffering, becausewe have no accountability for the algorithms of digital platforms. At this pointprofit is much more important than the public good.FR: But you said that emphasizing innovation is a losing strategy here in Brussels.MS: I feel there is a big turning point happening as we speak. It is not only here inBrussels but even Americans are now advocating regulation.FR: Why?MS: They have seen the 2016 election in the US, they have seen conspiracy afterconspiracy rising to the top ranks of searches, and it's just not sustainable.FR: What kind of regulation are you calling for and what regulation will there bepolitical support for here in Brussels?MS: I believe that the e-commerce directive with the liability exemptions in theEU and Section 230 with similar exemptions in the US will come under pressure. Itwill be a huge game changer.FR: A game changer in what way?MS: I think there will be forms of liability for content. You can already see moreactive regulation in the German law and in the agreements between the EU-Commission and the companies) to take down content (the code of conduct on hatespeech and disinformation). These companies cannot credibly say that they are notediting content. They are offering to edit content in order not to be regulated, sothey are involved in taking down content. And their business model involvespromoting or demoting content, so the whole idea that they would not be able toedit is actually not credible and factually incorrect. So regulation is coming, and Ithink it will cause an earthquake in the digital economy. You can already see theissues being raised in the public debate about more forceful competitionrequirements, whether emerging data sets should also be scrutinized in differentways, and net neutrality. We have had an important discussion about the right toprivacy and data protection here in Europe. Of course, in Europe we have a right toprivacy. The United States does not recognize such a right, but I think they willstart to think more about it as a basic principle as well.FR: Why?MS: Because of the backlash they have seen.FR: Do you have scandals like Cambridge Analytica in mind?MS: Yes, but not only that one. Americans are as concerned about protection ofchildren as Europeans are if not more. I think we might see a backlash againstsmart toys. Think about dolls that listen to your baby, capture its entire learningprocess, its voice, its first words, and then use that data for AI to activate toys. I amnot sure American parents are willing accept this. The same with facialrecognition. It's a new kind of technology that is becoming more sophisticated.Should it be banned? I have seen proposals to that end coming from California ofall places.FR: Liability may involve a lot of things. What kind of liability is on the politicalmenu of the European Union? Filtering technology or other tools?MS: Filtering is on the menu, but I would like to see it off the menu becauseautomatic filtering is a real risk to freedom of expression, and it's not feasible forSME (Small and Medium Enterprises) so it only helps the big companies. We needto look at accountability of algorithms. If we know how they are built, and whatcould be their flaws or unintended consequences, then we will be able to setdeadlines for companies to solve these problems. I think we will look much moreat compliance deadlines than just methods. We already have principles in our lawslike non-discrimination, fair competition, freedom of expression and access toinformation. They are not disputed, but some of these platforms are in factdiscriminating. It has been documented that Amazon, the biggest tech companyand the front runner of AI had a gender bias in favor of men in its AI-algorithm forhiring. I think future efforts will be directed toward the question of designingtechnology and fostering accountability for its outcomes.FR: Do you think the governments in the US and Europe are converging on theseissues?MS: Yes. Liberal democracies need to protect themselves. Democracy is in declinefor 13th year in a row (according to Freedom House). It's a nightmare, and it'ssomething that we cannot think lightly about. Democracy is the best system inspite of all its flaws, it guarantees the freedoms of our people. It also can beimproved by holding the use of power accountable through checks and balancesand other means.FR: Shouldn't we be careful not to throw out the baby with the bath water? We areonly in the early stages of developing these technologies and businesses. Aren'tyou concerned that too much regulation will have unintended consequences?MS: I don't think there is a risk of too much regulation. There is a risk of poorlydrafted regulation. We can already see some very grave consequences, and I don'twant to wait until there are more. Instead, let's double down on principles thatshould apply in the digital world as they do in the physical world. It doesn't matterif we are talking about a truck company, a gas company or a tech company. I don'tthink any technology or AI should be allowed to disrupt fundamental principlesand we should begin to address it. I believe such regulation would be in thecompanies' interest too because the trust of their customers is at stake. I don't thinkregulation is a goal in and by itself, but everything around us is regulated: thebattery in your recording device, the coffee we just drank, the light bulbs here, thesprinkler system, the router on the ceiling, the plastic plants behind you so that if achild happens to eat it, it will not kill them as fast as it might without regulation,and the glass in the doors over there, so if it breaks it does so in a less harmful wayand so on and so forth. There are all kinds of ideas behind regulation, andregulation is not an injustice to technology. If done well, regulation works as asafeguard of our rights and freedoms. And if it is bad, we have a system to changeit.The status quo is unacceptable. We already have had manipulation of ourdemocracies. We just learned that Facebook paid teenagers $20 to get to their mostprivate information. I think that's criminal, and there should be accountability forthat. We have data breach after data breach, we have conspiracy theories still risingto the top search at YouTube in spite of all their promises to do better. We haveFacebook selling data without consent, we have absolutely incomprehensible termsof use and consent agreements, we have lack of oversight over who is paying forwhich messages, how the algorithms are pushing certain things up and other thingsdown. It's not only about politics. Look at a public health issues like anti-vaccination hoaxes. Online sources say it is dangerous to vaccinate your child.People hear online that vaccinations are dangerous and do not vaccinate theirchildren leading to a new outbreak of measles. My mother and sister are medicaldoctors, cancer specialists, and they have patients who have been online andstudied what they should do to treat their cancer, and they get suggestions withoutany medical or scientific proof. People will not get the treatment that could savetheir lives. This touches upon many more issues than politics and democracy.FR: So you see here a conflict between Big Tech and democracy and freedom?MS: Between Big Tech with certain business models and democracy, yes.FR: Do you see any changes in the attitudes and behaviour of the tech companies?MS: Yes, it is changing, but it's too little, too late. I think there is moreapologizing, and there is still the terminology, "Oh we still have to learneverything, we are trying." But the question is, is that good enough?FR: It's not good enough for you?MS: It's not convincing. If you can make billions and billions tweeking youralgorithm every day to sell ever more adds, but you claim that you are unable todetermine when conspiracies or anti-vaccination messages rise to the top of yoursearch. At one point I looked into search results on the Eurozone. I received 8 outof 10 results from one source, an English tabloid with a negative view of the Euro.How come?FR: Yes, how come, why should that be in the interest of the tech companies?MS: I don't think it's in their interest to change it, but it's in the interest ofdemocracy. Their goal is to keep you online as long as possible, basically to getyou hooked. If you are trying to sell television, you want people to watch a lot oftelevision. I am not surprised by this. It was to be expected. However, it becomes aproblem, when hundreds of millions of people only use a handful of theseplatforms for their information. It's remarkably easy for commercial or politicalpurposes to influence people whether it's about anti-vaccination or politics. Iunderstand from experts that the reward mechanism of the algorithm means thatsensation sells more, and once you click on the first sensational message it pullsyou in a certain direction where it becomes more and more sensational, and onesensation after another is being automatically presented to you.I say to the platforms, you are automatically suggesting more of the same. Theysay no, no, no, we just changed our algorithm. What does that mean to me? Am Isupposed to blindly believe them? Or do I have a way of finding out? At this pointI have no way of finding out, and even AI machine learning coders tell me thateven they don't know what the algorithms will churn out at the end of the day. Oneaspect of AI is that the people who code don't know exactly what's going comeout. I think it's too vague about safeguards, and clear that the impact is alreadyquite significant.I don't pretend to know everything about how the systems work. We need to knowmore because it impacts so many people, and there is no precedent of any serviceor product that so many people use for such essential activities as accessinginformation about politics, public health and other things with no oversight. Weneed oversight to make sure that there are no excesses, that there is fairness, non-discrimination and free expression.

Last week, the Wisconsin Supreme Court heard the Armslist case that we've written about a few times. This is the case where victims of a shooting are trying to sue the website Armslist that had hosted the ad for the gun that the shooter bought to use in the crime (likely legally). Most cases that have interpreted CDA 230 over the past twenty-odd years have agreed that the language of that law is clear that websites cannot be held liable for the actions of their users, but last year a Wisconsin appeals court decided otherwise. The Wisconsin Supreme Court agreed to revisit this decision, and last month we filed another amicus brief to explain the important issues at stake for the internet and free speech.A number of other amicus briefs were filed as well -- including a stunning one on behalf of Senator Richard Blumenthal and some retired members of Congress, which first wrongly insisted that CDA 230 did not apply to the web platform being sued for actions of its users, and then went on to make some truly astonishing claims about FOSTA, a bill that Blumenthal was a key co-sponsor for.It should be noted that Blumenthal and CDA 230 have a long history -- one that goes back to a time long before he was in the Senate. Back when he was merely a grandstanding Attorney General in Connecticut, Blumenthal regularly would threaten internet companies for the actions of their users, ignoring the fact that CDA 230 prevented Blumenthal from taking this action against them. He went after MySpace because some sexual predators used the site. He went after Facebook for the same thing. Oh, and how could we forget his years-long crusade against Craigslist. Basically, as Attorney General, every few months, Blumenthal would generate splashy headlines by grandstanding to the press about some evil thing that people had done on the internet -- and incorrectly blaming the tools and services that those had people used to do it.So it was little surprise that when a chance came up to gut Section 230's critical protections for platforms, and by extension speech on the internet, Blumenthal became the key sponsor from the Democratic side of the Senate to push these changes forward (Senator Rob Portman was the key sponsor from the GOP).Because it's long been apparent that Blumenthal has liked to ignore what CDA 230 did (and why), it is not too shocking that with this brief he attempted to make the Wisconsin Supreme Court ignore it too. But it is odd that he would do this by misstating how the bill he sponsored, FOSTA, changed Section 230, and would have had to change it if he wanted its protections to be curtailed, by pretending it didn't actually change it. Armslist, in its own brief, had correctly pointed out that the passing of FOSTA showed that CDA 230 provided platforms with broad immunity, and that Congress would have had to amend it if it wanted to exempt certain activities from its coverage. Yet somehow Blumenthal tries to argue that's not what FOSTA was for:

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Christopher Clay alerts us to the latest Google Derangement Syndrome from an EU Bureaucrat. Last year, we noted that various EU politicians kept insisting that all of the complaints about their awful plan were due to Google lobbying and astroturfing -- when the reality showed that nearly all of the lobbying came from legacy copyright players.However, German MEP Sven Schulze must have thought he was really on to something in claiming he had real proof of Google astroturfing. In a tweet (in German) he claimed that because all of the complaints he's getting seem to come from people with Gmail addresses, it's proof of fakery. No, really. Here's a translation (courtesy of Google, of course) of his tweet:

President Trump has declared a national emergency.This is a thing presidents can do. And they've been doing it since 1979 when President Carter responded to a hostage situation in Iran by declaring a national emergency. We've spent four decades in perpetual emergency mode. With Trump's announcement, this makes American subject to 33 concurrent national emergencies, all of which grant the president a bunch of extra (and surprising!) powers, and encourage the government to start clawing back rights and privileges from the American people.The declaration on the White House website is at least mostly coherent. It says there's a national security/humanitarian crisis at the southern border because, um, immigrants are still trying to migrate to the United States.

On Thursday, the European Commission posted -- on its official Medium page -- an astoundingly juvenile and obnoxious post, lashing out at those who have complained that Articles 11 and 13 in the EU Copyright Directive will be destructive. The post was snide and condescending, and suggested that most of the opposition was fake and "astroturfed" and that anyone who really believed that the EU Copyright Directive was a problem was brainwashed by Google and Facebook. It was... quite a post. On Friday evening, I wrote up a (mostly) line-by-line response to its utter nonsense and planned to post it this week once people were back in the office to review it. However, on Saturday, after widespread criticism, the EU Commission "removed" the post without an apology -- but with the standard cop out of someone who did something bad but can't admit it:

This week, our first place winner on the insightful side is an anonymous commenter with a straightforward reaction to the description of ICE's fake college for busting immigrants:

Judging is almost complete! If you entered our public domain game jam Gaming Like It's 1923, or if you've been following along, get ready for the upcoming announcement of the winners in our six categories:

It's old hat by now to point out that on matters of copyright far too many people are unaware of the nuances of the law as to what constitutes infringement and what doesn't. While this is generally true, it's all the more so when it comes to how copyright covers specific characters or settings. For instance, George Lucas may have a copyright claim on the specific character of Darth Vader, but he most certainly does not have any claim to the more generic black-armored space-magician with a laser sword and a bad attitude. Copyright covers expression, in other words, not mere ideas.Which brings us to ex-WWE wrestler Booker T and his lawsuit against Activision over a G.I. Bro character he created and a character in Black Ops 4.

You may recall that back in May of 2017, a patent trolling operation called Blackbird Technologies picked on the wrong internet company to troll. Having built up some success blasting frivolous lawsuits at other internet companies, it chose to go after Cloudflare. That was a mistake. Cloudflare didn't just hit back, it promised to destroy the patent trolling firm, Blackbird Technologies. It opened up a campaign to crowdsource prior art not just on the patent at issue in its lawsuit but on every patent that Blackbird Technology claimed to hold.Almost exactly a year ago, Cloudflare won its case with the court invalidating the patent. It was such an easy decision that it took US District Court Judge Vince Chhabria barely over a page explaining why the patent was so clearly invalid and the case was dismissed.Blackbird, for reasons that escape me, decided to appeal to the Federal Circuit. Now, we've spent the better part of two decades mocking the Federal Circuit and its history of nutty decisions, but there are some cases so obviously bad that even the CAFC can't fuck them up. This is one. A CAFC panel heard the case last week and found the situation so utterly stupid that it only took a few days for it to affirm the lower court ruling. Indeed, its ruling is even shorter than the district court's ruling. The CAFC opinion doesn't even say anything other than: "Affirmed."Ouch.According to Cloudflare's General Counsel, Doug Kramer, in a blog post on Cloudflare's site, the CAFC panel didn't have a single question for the company's lawyers (which is nearly unheard of), leaving him with tons of extra time: