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For some time now, a man by the name of Chris Sevier has been waging a fairly facts-optional war on porn. Sevier first became famous for trying to marry his computer to protest same sex marriage back in 2016. He also tried to sue Apple after blaming the Cupertino giant for his own past porn addiction, and has gotten into trouble for allegedly stalking country star John Rich and a 17-year-old girl. Sevier has since been a cornerstone of an effort to pass truly awful porn filter legislation in more than 15 states under the disingenuous guise of combating human trafficking.Dubbed the "Human Trafficking Prevention Act," all of the incarnations of the law would force ISPs to filter pornography and other "patently offensive material." The legislation would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home. The proposal is patently absurd, technically impossible to implement, and yet somehow these bills continue to get further than they ever should across a huge swath of the boob-phobic country.Once people have realized the ignorant futility (and under-handed sales pitch) of such model legislation, it usually fails to gain any steam in most states. But it's back this week with a decidedly new wrinkle in Arizona, where State Rep. Gail Griffin is pushing Arizona House Bill 2444. HB 2444 would mandate that any Arizona internet user would need to file a request if they want to access porn online, proving they're at least 18 years of age. Porn seekers would then pay a one-time fee of $20 (plus additional fees) to access porn. Of course since this effort (like past efforts) is technically futile, the proposal is going nowhere.But it's getting some extra attention this week because the bill mandates the creation of something called the "John McCain Human Trafficking and Child Exploitation Prevention Fund," which, if past precedent for these bills holds, likely has less than nothing to actually do with, and was never sanctioned by, the family of John McCain.That fund, in turn, would go to a number of different causes, including a program designed "to uphold community standards of decency" and develop "programs for victims of sex abuse." But Arizona's incarnation of this dumb law has a small wrinkle in that Griffin is trying to claim this money could also be used to help fund Trump's unnecessary border fence:

As a full-time writer I have an interest in copyright. However arguable its principles and arbitrary its scope, I benefit from it. When I trip over an online pirate version of one of my books, I shamelessly snitch the pirates to my publishers.But would I want the platforms that enable this piracy to be liable for it? No. Because then the platforms – mostly giant corporations whose names we all know – would have every incentive to screen for any content that might conceivably breach copyright. Given the volumes involved, they would have to attempt to automate their filters. Good luck with designing an algorithm that can distinguish rip-offs from fair dealing!Far greater than my interest in copyright is my interest in a free and open internet – or, failing that, in keeping the internet as free and open as it is now. The internet is already a long way from the wild wonderland I first stepped into in the mid-1990s. Predictably enough, that early free-for-all has shrunk to a handful of giant corporations, who -- like some fast-forward cartoon version of the last chapter of Marx's Capital: Vol 1 -- usurp and monopolise all the advantages of this process of transformation.It's tempting to think that the EU is standing up to the corporate behemoths in the interest of creators. But Articles 11 and 13 of the proposed directive on Copyright in the Digital Single Market aren't an instance of democracy against capitalism. Drafted with scary imprecision, they at best licence one group of corporate behemoths – the big publishers and creative industries – to harass another, the digital platforms. At worst, they enable the digital platforms to further censor and blinker us, their users.The European Parliament would do well to ditch the offending articles, leave creators and publishers to deal with egregious rip-offs of their work, and leave the rest of us to meme and link and parody and remix as we please.Kenneth Macrae MacLeod is a Scottish science fiction writer who’s published books such as The Star Fraction (1995) to The Restoration Game (2010). In 2009 he was a writer in residence at the ESRC genomics policy and research forum at Edinburgh University. He’s won numerous awards including the BSFA award and Prometheus Award, both for Best Novel.

In the dual golden ages of internet and snark, individuals and companies are offered many opportunities to decide how to deal with people using social media to have fun at their expense. In most cases, this goes exactly how you'd imagine: strong-arm tactics to shut down social media accounts, lawsuits to silence fake or parody accounts, and even entire government agencies getting upset over one of its own tweeting against the agency line. Missing in all of this, as you may have noticed, is any sense of humor or fun about this sort of thing.But level heads do occasionally prevail. Such appears to be the case with the folks at Table Talk Pies, a century-old pie-slinging company that decided in the past few years to have a better online presence, but also recently discovered someone out there is impersonating the company on Twitter.

As we noted earlier this year, the California Supreme Court wisely sided with Yelp in a legal fight over whether or not the company could be forced to remove reviews based on another legal dispute of which Yelp was not a party. The crux of the case was about Section 230 of the CDA. As we detailed back in 2016, a lower court had initially ordered Yelp to take down a review that the court found to be defamatory (though, it was on default judgment as the defendant in the case decided to not show up in court). The case was brought by a lawyer, Dawn Hassell, who sued a former client, Ava Bird, claiming that Bird had posted a negative review of Hassell's legal work. Bird then ignored the lawsuit, leading to the default judgment -- all of which is fine. But then the court issued an injunction against Yelp, ordering it to take down the review, despite Yelp not even being a party to the lawsuit.The California Supreme Court properly ruled that the injunction should be thrown out, based on CDA 230, which (as we've discussed over and over again) says that an internet service provider (such as Yelp) cannot be held liable due to the speech of a user (such as Ava Bird). This was a pretty standard and "easy" ruling on CDA 230, and the court had many cases to cite. And thus, it's good news that the US Supreme Court has denied Hassell's cert petition to hear the case -- meaning the California ruling stands. It shouldn't be a surprise that the Supreme Court decided not to hear the case, as there is widespread agreement that this is exactly how CDA 230 is meant to work and it's how basically every circuit that has ruled on this issue has found, sot here's no circuit split to deal with. Having the Supreme Court refuse to hear a case isn't always newsworthy, but it's at least a bit of a relief that the court apparently didn't think this one was an issue worth reconsidering. The internet and the services we all use, remain protected... for now.

Late last year, a Seattle newspaper petitioned the court to unseal dockets related to electronic surveillance by law enforcement. The position was clear: the First Amendment provides citizens with a right to information, hence the presumption of openness that's supposed to govern court proceedings. The government has long argued the need to protect law enforcement means and methods outweigh the public's right to know, and has secured a lot of compliance from judges at all levels of the court system.In recent years -- no doubt at least partially as a result of the Snowden leaks -- courts have begun pushing back. Warrant affidavits are receiving more scrutiny from some judges and litigation has resulted in courts agreeing to unseal large numbers of proceedings involving law enforcement surveillance tech.The Seattle case deals with the same concern: law enforcement is increasingly deploying secretive tech and locking the public out of the discussion by sealing documents and dockets. The good news is the federal court presiding over the case agrees with the EFF and The Stranger, the Seattle publication that put the litigation in motion.

As you might have heard, the famed pranksters The Yes Men were recently involved in something of a parody news story. They printed up and handed out a ton of parody Washington Posts, dated May 1, 2019 (note: a date a few months in the future) with a cover story claiming to be about President Trump being removed from office. People who got their hands on the printed edition said that they looked pretty similar to an actual Washington Post. The pranksters didn't just print out newspapers, they also set up a website at my-washingtonpost.com. The Washington Post itself was not amused and appears to have sent an incredibly stupid cease-and-desist letter from a publication that should know better.Actually, let's be clear: the Washington Post does know better. As Public Citizen lawyer Paul Levy notes in a post we'll talk more about down below, the Washington Post's double standard shines through based on its reporting on other parodies in comparison:

You'll recall that one of the top reasons for killing popular net neutrality rules was that they had somehow supposedly crushed broadband industry network investment. Of course, a wide array of publicly-available data easily disproved this claim, but that didn't stop FCC boss Ajit Pai and ISPs from repeating it (and in some cases lying before Congress about it) anyway. We were told, more times that we could count, that with net neutrality dead, sector investment would explode since carriers would be "unchained" from "burdensome regulation."You'll be shocked to learn this purported boon in investment isn't happening.A few months ago, Verizon made it clear its CAPEX would be declining, and the company's deployment would see no impact despite billions in tax cuts and regulatory favors from the Trump FCC. Both AT&T and Verizon have similarly announced massive workforce reductions as well. Some investment growth is happening in wireless as carriers prepare for fifth-generation (5G) wireless service (which they would have deployed regardless of the attacks on net neutrality). But even that's a bit lower than Wall Street and sector analysis expected.And according to the latest analysis from MoffettNathanson, both fixed-line telcos and cablecos are expected to see notable declines in CAPEX and investment:

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The evidence the feds use to lock people up continues to be laughable. Well, laughable under any other circumstances. Freedom is a high price to pay for bad science, but the FBI seems to believe the tradeoff between lost freedom and junk science is a net gain for society. Judges seem to agree. It's difficult to challenge the sufficiency of evidence against you, nevermind the underlying "science" backing dubious forensic evidence like hair or bite mark matching.The gold standards in forensic evidence aren't even gold. DNA is a hitchhiker which can put people never involved with a crime at the scene just by hitching a ride on first responders. Fingerprints have been considered individual markers for years, but even that assessment appears to have been overstated.But dig deep enough into the FBI's forensic toolkit and you'll find some truly surprising forms of "evidence." ProPublica has done exactly that, uncovering so-called science that far more resembles faith. Convictions have been obtained thanks to FBI forensic experts claiming mass produced products like shirts and jeans are just as distinct as fingerprints and DNA.

One of the key themes we've been hearing for years now concerning the EU's awful Article 13 section of the EU Copyright Directive, was that no one should pay any attention at all to the critics of Article 13, because it's all just "big tech lobbying" behind any of the criticism. In the past, we highlighted a few of these claims:

India's government is still seeking more direct control of the internet, using ill-defined buzzwords ("hate speech," "fake news") as justification for broken encryption and holding tech companies directly responsible for content created by users. The Indian government may have passed and killed a "fake news" law in the space of 24 hours, but the term lives on as a useful enabler for censorship.

Techdirt writes plenty about copyright in the US and EU, and any changes to the respective legislative landscapes. But it's important to remember that many other countries around the world are also trying to deal with the tension between copyright's basic aim to prevent copying, and the Internet's underlying technology that facilitates it. Recently, we covered the copyright reform process in South Africa, where some surprisingly good things have been happening. Now it seems that Singapore may bring in a number of positive changes to its copyright legislation. One of the reasons for that is the very thorough consultative process that was undertaken, explained here by Singapore's Ministry of Law:

On the surface Herrick v. Grindr seems the same sort of case as Daniel v. Armslist (which we wrote about last week): it's a case at an appeals court that addresses the applicability of Section 230, meaning there is a reasonable possibility of it having long-lingering effect on platforms once it gets decided. It's also a case full of ugly facts with a sympathetic plaintiff, and, at least nominally, involves the same sort of claim against a platform – in Armslist the claim was for "negligent design," whereas here the claim is for "defective design." In both cases the general theory is that because people were able to use the platform to do bad things, the platforms themselves should be legally liable for the resulting harm.Of course, if this theory were correct, what platform could exist? People use Internet platforms in bad ways all the time, and they were doing so back in the days of CompuServe and Prodigy. It is recognition of this tendency that caused Congress to pass Section 230 in the first place, because if platforms needed to answer for the terrible things their users used them for, then they could never afford to remain available for all the good things people used them for too. Congress felt it was too high a cost to lose the beneficial potential of the Internet because of the possibility of bad actors, and so Section 230 was drafted to make sure that we wouldn't have to. Bad actors could still be pursued for their bad acts, but not the platforms that they had exploited to commit them.In this case the bad act in question was the creation and management of a false Grindr profile for Herrick by an ex-boyfriend bitter about their breakup. It led to countless strangers, often with aggressive expectations for sex, showing up at Herrick's home and work. There is no question that the ex-boyfriend's behavior was terrible, frightening, inexcusable, and, if not already illegal under New York law, deserving to be. But only to the extent that such a law would punish just the culprit (in this case the ex-boyfriend who created the fake profile).The main problem with this case is that Herrick is seeking to have New York law extend to also punish the platform, which had not created the problematic content. But the plain language of Section 230 – both in its immunity provision along with its pre-emption provision – prevents platforms from being held liable for content created by others. Herrick argues that Grindr should be held liable anyway "because it knowingly facilitated criminal and tortious conduct." But that's not the standard. The standard is whether the platform created the wrongful content, or, at minimum, in the wake of Roommates, had a hand in imbuing it with its wrongful quality. But here there is no evidence to suggest that Grindr had anything to do with the creation of the fake profile. It was the awful ex-boyfriend who was doing all the malfeasant content supplying.But here's where the two cases part company, and where the Grindr one gets especially messy. The good news for Section 230 is that this messiness may make it easy for the Second Circuit to resolve in favor of Grindr and leave Section 230 unscathed. The bad news is that if the Second Circuit decides the other way, it will be very messy indeed.One of the core questions in most lawsuits involving Section 230 is whether the platform itself is an interactive computer service provider, and thus protected by Section 230 for lawsuits seeking to hold them liable for content created by others, or whether it is instead a non-immune "information content provider." Part of the problem with this case is that when Herrick filed the lawsuit originally, the pleading acknowledged that it was an interactive computer service provider. Later when he was fighting the motion to dismiss he changed its mind, but that's a problem. You don't usually get to change your mind about these critical elements of your complaint without repleading it. (Which is one of the reasons Herrick is appealing; the dismissal was "with prejudice," meaning it wouldn't easily be able to re-plead at this point, and Herrick wants another chance to amend his complaint.)But that's only one of the pleading problems. A plaintiff also has to put forth a plausible theory of liability at the outset, in large part so that the defendant can be on notice of what it is being accused of to defend itself. It's not unusual for theories of liability to evolve as litigation proceeds, but if the theory changes too much too late in the process it raises significant due process problems for the defendant. Which seems to be happening here. The story Herrick told the Second Circuit about why it thought Grindr should be liable for the harm Herrick suffered differed in significant ways from the story it had told at the outset, or to the trial court. This change is one reason why the case is particularly messy, and may be messier still if the Second Circuit allows it to continue anyway.At issue is what Herrick told the Second Circuit about his harassment. According to him now, strange men were showing up in his life not just constantly but everywhere he went. Yet according to the record at the trial court, they only showed up in two places: his home and his work. Which is not to say, of course, that it's ok for him to have these people harass him at either place (or any place). The issue is that this "everywhere" v. "only in two places" distinction significantly affects his theory of the case and therefore the merits of his appeal.Because the argument he pressed at oral argument was that it was Grindr's geolocation service that removed the case from Section 230's purview. According to him there must be some bug in Grindr that allows these strange men to know where he is and seek him out, and so, he thinks, Grindr should be liable for not fixing this defect.However there are a number of problems with this theory. First, it is highly implausible. For it to be true Grindr would need to not only still be tracking him (even as an ex-user) but then, for some unknown reason, somehow unite the location data of the actual Herrick person with the fake Herrick profile. Herrick tried to argue that the first part was likely, citing for instance Google's location services continuing to track users after they'd thought it had stopped. But even if it were true that Grindr had continued to track him, it would be really random to associate that data with any other account he didn't control. From Grindr's point of view, his real account and the fake account would look like two completely separate users. Sure, Grindr could have a bug that mis-associated location data, but there's no reason for it to pick these two completely different accounts to merge the data from. It would be just as arbitrary as if it mixed up his data with any other Grindr account.Furthermore, there is zero evidence to suggest that the fake account used the geolocation data of anyone at all, other than perhaps the ex-boyfriend, who was operating the account. There certainly is no evidence to suggest that it was somehow using Herrick's actual data, and that's why the factual distinction about where he was harassed matters. If it truly was everywhere then he might have a point about the app having a vulnerability, and if so then perhaps his defective design claim might start to be colorable. But the only information he's alleged is that he was harassed in those two places, home and work, and no one needed to use any geolocation data to find him at either of these places. The ex-boyfriend knew of these places and could easily send would-be suitors to them directly via private messages. In other words, the reason they turned up at either of these places was because of content supplied by a third party (the ex-boyfriend). This fact puts the case clearly in Section 230-land and makes the case one where someone is trying to hold a platform liable for harm caused by how another communicated through their system.Finally, an additional problem with this theory is that even if it were correct, and even if there were some evidence that the geolocation was allowing strangers to harass him everywhere, it needed to have come up before the appeal. The purpose of the appeal is to to review whether the first court made a mistake. Belatedly supplying more information for the benefit of the appeals court will not help it decide whether the first court made a mistake because that court could only have done the best it could with the information available to it. It isn't a mistake not to have had the benefit of more, and to add more at this late date would be incredibly unfair to the defendant. As it was, by pressing this new "he was tracked everywhere" theory at oral argument it left Grindr's counsel in the unenviable and risky position of having to field extremely hypothetical questions from the judges about their client's potential liability based on facts nowhere in the underlying record. It was uncomfortable to listen to the judges push Grindr's lawyers on the question of whether some hypothetical software bug that they had never contemplated, and likely doesn't exist, might undermine their Section 230 protection. To their credit they fielded the hypo on the fly pretty well by reminding the judges that Section 230 covers how platforms are used by other people, regardless of whether they are used appropriately or exploitatively. But given the way this case was pleaded from the outset, this hypo should never have come up, especially not at this late juncture.So one of the overarching concerns about this case is that because this theory did not coalesce until it had reached the appeals court, it left the central legal questions it raised under-litigated, thus inviting poor results if the Second Circuit now gives them any credence. But that's not the only concern. It may still be an ominous harbinger, for even if Herrick loses the appeal, it may not be the last time we see this "software vulnerability makes you lose Section 230 protection" theory put forth. It foreshadows how we may see future privacy litigation wrapped-up as defective design cases, and, worse, it may encourage plaintiffs seeking to do an end-run around Section 230 to try to package their claims up as privacy cases.Also, what Herrick asked for in his appeal was a remand back to the trial court to explore all these under-developed evidentiary issues. Was there a software bug? Was Grindr continuing to track former subscribers in a way they didn't know about? Was there a privacy leak, where the fake profile was somehow united with the geolocation of a real person? Herrick believes the case shouldn't have been dismissed without discovery on these issues, but early dismissal is a big reason why Section 230 provides valuable protection to a platform. It is extremely expensive to go through the discovery stage – in fact, it's often the most expensive stage – and if platforms had to endure it just so plaintiffs could explore paranoid fantasies with no evidence to give them even a veneer of plausibility, it will be extremely destructive to the online ecosystem.On the upside, however, unlike the Wisconsin Court of Appeals in the Armslist case, after listening to the oral argument I'm relatively confident that the judges will be able to respect prior precedent upholding Section 230, even in these awful cases, and resist reaching an emotional conclusion that strays from it. Also, given the issues with the pleading and such – which at oral argument the judges flagged – there may be enough procedural problems with Herrick's case to make it easy for the court to dispense with it without causing damage to Section 230 jurisprudence in the Second Circuit in the process. But if these predictions turn out to be wrong, and if it turns out that these procedural issues pose no obstacle to the court issuing the remand Herrick seeks, then we might have to contend with something really ugly on the books at a federal appellate circuit level.

It's that time again! Mike spent the week before last at this year's Consumer Electronics Show, checking out all the latest technology that companies are most eager to show off, and now once again he's joined on the podcast by CES veteran Rob Pegoraro for the CES 2019 Post-Mortem.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The shocking and brutal murder of Washington Post journalist Jamal Khashoggi by members of the Saudi Arabian government late last year was breathtaking in its audacity and execution. Lured to the Saudi consulate in Turkey by Saudi government officials, Khashoggi was strangled and dismembered by a team of Saudi security operatives.Khashoggi was a legal resident of the United States, in self-imposed exile from Saudi Arabia as a result of the government's treatment of dissidents. As a lawful resident, Khashoggi was technically protected by the many of the same laws and rights US citizens are. While the US government limits those rights and protections when legal residents (but not citizens) travel out of the country, the US intelligence community still bears a "duty to warn" lawful residents of any violent threats against them.The IC knew Khashoggi was a target of the Saudi government. It knew Riyadh had "something unpleasant" waiting for Khashoggi should he return to Saudi Arabia. A plan to lure Khashoggi back to Saudi Arabia was intercepted by US intelligence. No one knows whether Khashoggi was ever warned by US intelligence of these plans.The Committee to Protect Journalists -- along with the Knight Institute -- wants to know if any attempts were made to inform the murdered journalist of Saudi Arabia's plans. So far, the Office of the Director of National Intelligence has refused to publicly comment on the IC's "duty to warn." These two entities have filed FOIA requests seeking info about the IC's duty to warn Jamal Khashoggi, asking each of the IC's five components to release documents detailing their actions/inactions. These were filed shortly after news broke of Khashoggi's murder. So far, none of the agencies have handed over any documents.As the Knight Institute points out, there definitely should be documents related to Khashoggi and the government's "duty to warn."

We've written many times about privacy activist Max Schrems, who almost single-handedly brought down the silly privacy safe harbors between the EU and the US. Last year, we wrote about his newest project called noyb.eu, which stands for "None Of Your Business."Last week, Schrems and noyb announced a big list of GDPR complaints filed in Austria, against basically every streaming media company, none of which -- they claim -- are in compliance with the GDPR. Schrems also provided everyone with a handy dandy chart showing the basic details of the results of the GDPR requests they made to eight different streaming platforms, where they fell down, and how much they might be on the hook for:If you'd like to see the actual complaints, here they are for Amazon, Apple, DAZN, Flimmit, Netflix, Soundcloud, Spotify, and YouTube.I have lots of thoughts about this, so let's list them out:

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When it comes to Star Wars, both Lucasfilm and Disney have shown themselves to be perfectly insane when it comes to IP protectionism. Examples of this are legion, and neither company has come out of them with a stellar or fan-friendly image, generally speaking. That is probably why when Toos, the guy behind the quite popular Star Wars Theory YouTube channel, decided to put out a Darth Vader fan-film, he went out of his way to attempt to follow all the rules.

To be clear, T-Mobile initially had an indisputably-positive impact on the wireless sector. The company's decision to eliminate consumer pain points like long-term contracts and early termination fees was quickly mirrored by other carriers thanks to a strange concept known as "competition." And CEO John Legere's relentless attacks on giants like AT&T and Verizon have proven to be immensely entertaining over the years. All told, T-Mobile has built its entire brand on the back of the idea that it was a polar opposite of the type of ethically-dubious giants that have dominated telecom for a generation.In more recent years the company's "uncarrier" branding schtick has started to look a little worn around the edges. From supporting efforts to kill net neutrality to weirdly attacking the EFF, the company occasionally lets its mask slip, showing it's not all that different from the companies it professes to be better than. This shift has been particularly obvious as the company has tried to sell the press, public, and Trump administration on the company's job and competition killing merger with Sprint (like that time it hired Corey Lewandowski to "consult" despite his comments mocking a kid with Down Syndrome).As it rushes to consolidate the wireless sector from four to three carriers, T-Mobile's increasingly engaging in behavior it used to mock AT&T and Verizon for. Not least of which being the company's empty promises to police the sale of user location data to dubious third brokers and aggregators, something T-Mobile was perfectly happy to do in lock-step with other carriers.That brings us to this week's revelations that T-Mobile executives booked 9 rooms at Trump's DC hotel the day after it first announced its Sprint merger ambitions. T-Mobile execs have been regular patrons ever since as they try to sell the government on the latest telecom sector megadeal nobody asked for:

As if government agencies needed any new ways to thwart accountability and transparency. Oregon legislators are introducing a host of alterations to the state's public records law, but one of those looks like nothing more than an easily-abusable tool to be wielded against public records requesters. Jessie Gomez of MuckRock has more details:

This week, our first place winner on the insightful side is Pixelation with a response to the AT&T executive bragging about the company's misleading 5G claims, with the comment "if I have now occupied beachfront real estate in my competitors' heads, that makes me smile":

Five Years AgoThis week in 2014, as congress was preparing to give up its authority and fast-track agreements like the TPP, and the USTR was not even showing up for hearings on the subject, the EFF and others teamed up to launch Copyright Week, for which we featured daily posts about copyright. On Monday, we looked at the reasons why the USTR and Hollywood hate transparency; on Tuesday, we dug into the loss to culture from killing the public domain; on Wednesday, we pivoted to knowledge and learning with a post all about Open Access; on Thursday, we looked at how copyright can destroy property rights; and then on Friday we wrapped it up with a look at the importance of fair use.Ten Years AgoCopyright was also on our minds this week in 2009, especially since it turned out the RIAA's promise to stop suing file sharers was not so solid when they filed yet another new lawsuit. Less awful but still very disappointing was the discovery that Apple's much-vaunted removal of DRM from iTunes songs also meant they were watermarking all the files with your email address. We took another look at how friendly DRM is an oxymoron, how collection societies like ASCAP and BMI harm up-and-coming singers, and the long, fraught history of copyright and music in general. Meanwhile, the Supreme Court was asking the administration for input on copyright issues related to remote DVRs, and the judge for a case challenging the constitutionality of the RIAA's actions agreed to broadcast the trial live online.Fifteen Years AgoSometimes it's eerie and depressing how little changes across these five-year jumps. In 2004, the RIAA was just in an ever-so-slightly different phase of its activities following the loss of its ability subpoena file sharer information after the Verizon case: it was just trying to get ISPs to do it voluntarily, and having a hard time getting any on board. Studies suggested that the war against file sharing was gaining little ground, as piracy appeared to be on the upswing again while moving deeper underground. Over at the MPAA, the situation was similar: having just been blocked by a judge from banning screener DVDs for award shows, the agency was drumming up concern over the copies that began to show up online, which they started slowly finding one by one. Meanwhile, some folks were suggesting ways to deal with video piracy by totally missing the point of online video.

As you may have already heard, the latest iteration of the Black Mirror franchise on Netflix, titled Bandersnatch, is an absolute hit. You likely also have heard that it allows the viewer to influence the plot by making choices within the story's many inflection points. And, hey, perhaps you even heard that Netflix is facing legal action by Chooseco LLC, the company behind the "Choose Your Own Adventure" series that were popular in the '80s and '90s.But if you haven't dug into the details, both in terms of why Chooseco states the Netflix series violates its trademark and the damages it is asking for in court, you may not realize just how bonkers all of this is.

Because Facebook wasn't looking awful enough already, some newly unsealed documents from a lawsuit going back a few years are now making the company look even worse, and certainly not doing the company any favors in its efforts to rehabilitate its reputation. Unfortunately, so far, Reveal, a project of the Center for Investigative Reporting, seems to only be revealing snippets of what's in the documents, rather than the full documents (come on guys...), but what they're sharing doesn't look great.Specifically, a judge has unsealed previously sealed records from a 2012 class action lawsuit that was settled in 2016, concerning Facebook profiting off of children. The origins of the lawsuit involved a child who got his mother's credit card to play a game on Facebook, without realizing that the more he played, the more of his mother's money he was spending -- compounded by Facebook then refusing to refund the charges. The latest revelations show that Facebook employees knew that they made this information confusing, in a way that people (kids and adults alike) might not realize they were still spending money off of a credit card, and also having joking conversations about people trying to get their money back. Indeed, the snippet Reveal has released has Facebook employees referring to one teenager as "a whale" -- a term used in casinos to refer to big spenders.

One of the ideas that we keep trying to drive home is that the Internet works only because Section 230 has allowed it to work. Mess with Section 230, and you mess with the Internet. FOSTA messed with it statutorily, but it isn't just Congress that can undermine all the speech and services that depend on Section 230's protection for the platforms that enable them. Courts can mess with it too.While it's bad enough when courts get questions of whether Section 230 applies wrong at the trial court level, the higher the court, the more potentially destructive the decision if the court decides to curtail its protection. On the other hand, the higher the court, the more durable Section 230's protective language becomes when the decision gets it right. This post is about one of those cases where the future utility of Section 230 hangs in the balance, and where we hope that the Wisconsin Supreme Court, the highest court in the state, gets it right and finds it applies to the platform being sued -- and therefore all other platforms that depend on its protection.We've written before about this case, Daniel v. Armslist. As with a lot of the litigation challenging Section 230 it was one of those "bad facts make bad law" sorts of cases. In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal – in Wisconsin unlicensed dealers apparently do not have to run background checks – nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party's speech – in this case, the speech offering the gun for sale – should have been barred by Section 230.The trial court actually had gotten this question right and dismissed the case. Unfortunately a state appeals court in Wisconsin opted to ignore twenty-plus years of jurisprudence, as well as the statute's pre-emption provision, which would have directed such a finding, and reversed the trial court's original decision. Armslist then sought review by the Wisconsin Supreme Court, and we filed an amicus brief supporting their petition. One of the main points we made in the brief was how much stood to be affected if the decision was not overturned and Section 230's applicability in Wisconsin was now narrowed in ways Congress hadn't intended. After all, it isn't just Armslist in the crosshairs; it is all platforms everywhere, and all the speech and services they enable, in Wisconsin and beyond, that are threatened if platforms can no longer depend on Section 230's critical protection applying to them as it once had.Fortunately the Wisconsin Supreme Court agreed to hear the case, and this week we filed yet another amicus brief in support of Armslist on the merits. It is similar to the previous brief, with the added example of how much the Copia Institute itself, and Techdirt in particular, depends on Section 230 remaining robust and effective. It relies on it as a user of other services -- for instance, to have its posts shared through social media -- and as a platform itself. There could not be a comments section on Techdirt -- or all the vibrant and insightful discussion found there -- without Section 230 protecting the site from liability for what commenters say.It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates. But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake.

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday's negotiations have been called off entirely:

Years before most of us thought Donald Trump would have a shot at the presidency, the Cato Institute's Julian Sanchez put a name on a problem he saw in American conservative intellectual culture. Sanchez called it "epistemic closure," and he framed the problem this way:

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Earlier this week, we noted that the film, TV and sports industry associations had come out against Article 13 in the EU Copyright Directive. It was for all the wrong reasons of course -- mainly, that (1) negotiators were exploring very minor safe harbors that would give internet platforms conditions they could follow to avoid liability and (2) they were hoping that a few court cases would break their way and they'd get an even better result in the courts -- but it was still notable. After all, much of Article 13 was pushed for by those same industry reps.Still, some suggested that while the movie and TV folks wanted out, the record labels didn't, as they had been even more instrumental in crafting Article 13, with their entirely mythical concept of the "value gap" (a thing that does not actually exist) which they incorrectly believed Article 13 would solve. However, on Thursday, even the record labels bailed out on support for Article 13, though it appears for the same awful reasons as the film studios. They don't go quite as far as the film and TV folks (who ask for Article 13 to be put on hold indefinitely), but rather call for major changes:

Just about a month ago the FCC quietly handed the telecom industry another favor by voting to reclassify text messages as an "information service" instead of a "telecommunications service" under the Telecom Act, effectively freeing text messaging practices from government oversight. While the FCC stated the move was essential in order to fight text spam, consumer groups were quick to note the lack of oversight provided cellular carriers a nifty way to hamper third-party SMS services that might just compete with, or cause problems for, their own offerings.Fast forward to this month, and lo and behold, Verizon's already ruffling some feathers on this front. Remind, a free school texting, chat and messaging service used by teachers, students, school coaches, and parents, this week sent a notice to its customers stating that it may no longer be able to offer the service on the Verizon network thanks to a new "spam" fee Verizon is imposing on a service that's not really spam. From the notice to customers:

The EU Copyright Directive continues to be a total and complete disaster. It's so bad that neither of the two main groups lobbying around it -- the legacy entertainment industry and the big tech companies (with the vast majority of the lobbying coming from the copyright sector) are both unhappy with the bill (though for opposite reasons). And yet, despite all of this, the EU continues to soldier forward with a new proposal and a new draft that still requires that internet companies do the impossible:

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

You may be surprised to find that a search of our story archives involving fast-food giant McDonald's returns pretty scant posts here at Techdirt. Regardless, the company is known to be quite protective on trademark matters, often times using the trademarks it holds to swat at legitimate competition, pretending at potential public confusion that doesn't really exist. Given the size of the company's legal war chest, these bullying efforts are typically successful.But not always. One victim of this bullying was Supermacs, an Irish fast-food chain with an appropriately Irish name. Supermacs has for years wanted to expand throughout Europe, but was largely unable to due to McDonald's claiming that its trademark registration for "Big Mac", the name of its famous sandwich, meant that any attempt by Supermacs to expand into Europe would cause public confusion. This is typically where the story would end. Instead, Supermacs went on the offensive and decided to try to get McDonald's "Big Mac" trademark cancelled entirely so that it could no longer be wielded as a bully-stick. And, much to this writer's surprise, Supermacs won.

Late last year, I wrote about how the GDPR almost ruined Christmas in one German town, where it was determined that the annual tradition of kids putting their wishes on a tree in the center of town (to be fulfilled by local town officials) would violate the GDPR. Some people did figure out a "workaround" involving some pointless bureaucracy in getting parents to first sign "consent" forms to allow the town to do the same thing they've always done for years without a problem.However, now we have another story of the GDPR ruining another Christmas tradition in a different way. This tradition? Taking back the awful presents people give you that you don't actually want. At least some retailers are telling people that doing so under the GDPR requires them to inform the original purchaser that you really didn't like their gift:

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Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.His replacement, William Barr, is undergoing the formality of a confirmation hearing. It's assumed there's no way he can blow it. But he's trying.Barr would be no improvement over the departed Sessions. Barr thinks marijuana should be illegal everywhere. He's a fan of expanding executive power. As attorney general under George Bush Sr., he ordered phone companies to comply with DEA demands for millions of call records originating in the United States, laying the groundwork for the NSA's Section 215 collections.He also doesn't seem to care much for the First Amendment. As attorney general, he pushed for a Constitutional amendment banning the burning of American flags in the wake of a Supreme Court decision offering First Amendment protection for this form of expression.Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

The FCC is requesting a delay in the opening arguments in the looming lawsuit over the agency's repeal of net neutrality rules, citing the government shutdown as justification. Oral arguments are slated to begin February 1 in the US Court of Appeals for the District of Columbia Circuit, beginning what should be a fairly insightful battle over the Ajit Pai FCC's historically unpopular move, and some of the dubious behavior it engaged in to try and downplay public opposition.The court noted this week on its website that the trial is likely to proceed regardless of the government shutdown. The FCC quickly balked, filing a motion (pdf) requesting a delay in the trial. In the filing, the FCC cites guidance from the Department of Justice in requesting a delay out of what it suggests would be a wise "abundance of caution" as it attempts to prepare for the legal battle:

I'm not quite sure why everyone is so obsessed about the "problem" of Netflix password sharing, even though Netflix itself is fine with it. For a few years now, we've noted that Charter Spectrum's CEO Tom Rutledge never misses an opportunity to scream about how awful it is that HBO and Netflix have to deal with people sharing passwords, even though the CEOs of both companies have made it clear that they're fine with it as it tends to act as free promotion to get people to sign up for their own accounts over time. Here's HBO CEO Richard Plepler from a few years ago:

Truth is no defense against allegations of defamation -- not in Turkey where criminal defamation law is just one of the government's many weapons deployed against critics. Journalist Pelin Ãœnker has been sentenced to more than a year in jail by a Turkish court for publishing undeniable facts.

We've talked at length about how the telecom industry has spent the last few years pushing phony, loophole-filled net neutrality legislation.Why would the telecom sector do that? They know their successful lobbying assault on net neutrality rules rests on shaky ground. Next month's court battle could easily reverse the FCC repeal, highlighting how the agency engaged in all manner of dubious behavior to kowtow to the telecom sector. They also know that thanks to the shifting winds in Congress and rising public anger, there could soon be growing support for a net neutrality law. Therefore, they want to pass their own, shitty, loophole-filled law to pre-empt tougher, better, state or federal protections.The same thing is happening on the privacy front. Like the successful lobbyist attack on net neutrality, the cross-industry assault on the FCC's fairly modest broadband privacy rules back in 2017 pissed off those who were actually paying attention to it. Especially because those rules could have helped mitigate the growing roster of location data scandals by giving consumers greater control over how their location data is collected and sold.As a result, we're starting to see a flood of cross-industry-backed legislation that pretends to fix the nation's lack of meaningful privacy guard rails, but whose real goal is to pre-empt any real state or federal efforts on that front. Case in point: the Google, Facebook, and Amazon-backed Information Technology and Innovation Foundation (ITIF) has been circulating a proposal it has been calling a "grand bargain." Said bargain proposes some fairly basic guidelines, but again the main goal appears to be to pre-empt some of the tougher laws already on the state and federal books, something COPPA backers like Senator Ed Markey aren't particularly impressed by:

While much of the focus concerning the EU's Copyright Directive have been about Article 13 and the censorship and mandatory filters it will require, an equally troubling part is Article 11, which will create a "snippet" tax on anyone who aggregates news and sends traffic back to the original sites (for free) without paying those news sites. This is dumb for all sorts of reasons, not the least of which is that this plan has been tried in both Germany and Spain, and failed miserably in both places. Indeed, studies in Spain showed that this law actually did tremendous harm to smaller news sites (which the EU insists this law is designed to help). The latest version we've seen in the EU Copyright Directive is even worse than the laws in Germany and Spain in that it is so vague and so unclear that it is possible to read them to say that using more than a single word will make the aggregator liable for the tax.In Spain, as you may recall, when that law was passed, Google responded by turning off Google News in Spain entirely, saying that it was impossible to remain in the country under that law. As they noted (and which everyone pushing for these laws always ignores), Google actually doesn't put any advertisements on Google News. It's not monetizing it (despite lies from supporters of these laws that Google is "profiting" off of their work, when Google is actually sending traffic for free). So there were some questions about what Google would do with Google News in Europe if Article 11 becomes law.The company has now hinted at its plans by leaking a beta test of what Google News would look like under Article 11. The answer? It would look almost entirely empty:

Gaming Like It's 1923: The Newly Public Domain Game JamAs we mentioned earlier this month, in celebration of the fact that the US finally has allowed older works to enter the public domain again, after a very long hiatus, we're hosing a public domain game jam, encouraging people to create games (video games, tabletop games, LARPs, storytelling games, whatever) using newly public domain material. What good is a public domain if people aren't using it and building amazing new works with it? We've already seen some copyright maximalists -- who worked hard for years to prevent such works from entering the public domain -- mocking the excitement many of us have for finally seeing works entering the public domain (one of whom wondered why anyone would still care about works from 1923, which is infuriating, given their role in keeping those works away from the public domain). So, let's prove them wrong and build some amazing new works.We're halfway through the month of January, and we already have five amazing entries, all building on newly public domain material. We were expecting people to most likely wait towards the end of the month to submit, so already having so many entries is a great sign. But, it also means that there's plenty of time for you to come up with a game as well. On the game jam page we have some pointers/guidelines and links to many of the newly public domain materials.We also have an all-star panel of judges, from both the gaming and the copyright law worlds, and we're offering copies of our (public domain) CIA: Collect It All card game (or some of our copyright-themed t-shirts) as prizes for the best games in a variety of different categories. Even if you've never designed a game, now's your chance. Part of the idea behind a short-term "game jam" like this is that it encourages people to make something quick and get it out there for testing and improvement. We're excited about the submissions that have already come in, but just as excited to find out what else you guys can come up with over the rest of the month.

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Nearly 13 years after the FBI managed to turn a California cherry picker into a international terrorist, one of its self-created terrorists is about to be turned back into regular California resident, albeit one missing more than a decade from his life.Hayat went to Pakistan in 2003 to visit his mother and get married. The FBI and prosecutors insisted he went there to train to be a terrorist. When he returned to the US, he was arrested and indicted. Prosecutors tacked on some lying to federal agents charges because of course they did, pushing Hayat's sentence to 24 years.This conviction was upheld by the Ninth Circuit Court of Appeals but Hayat's motion to vacate his sentence has found some sympathy from a federal magistrate judge.

So last week yet another location data scandal emerged for the wireless industry, highlighting once again how carriers are collecting your location data, then selling it to a universe of sometimes shady partners with little to no oversight or accountability. Like the Securus and LocationSmart scandals before it, last week's Motherboard report highlighted how all manner of dubious dudebros (and law enforcement officers) have been abusing this data for years, and the Ajit Pai FCC has yet to so much as mention the problem, much less spend a single calorie addressing it in any meaningful way.Shortly after the scandal broke last week, Frank Pallone, the Chair of the House Committee on Energy and Commerce, asked Pai (pdf) to brief Congress on the steps the agency was taking to address the wireless sector's long-standing failure to adequately address location data abuse. Pai's response? Yeah, no thanks.In a statement issued by Pallone, he says Pai's office claimed that since the location data scandal wasn't putting lives at risk, Pai could not attend such a briefing during the government shutdown:

You can count me among those who don't see the value in those Amazon Dash buttons that got plenty of attention a few years back, allowing those who had the little single-button devices to re-order some consumable product with the push of a single button. Even if lots of people made fun of them at launch, Amazon has expanded them to many more brands. So, even if I don't see the value, it appears plenty of people do. Except, in Germany, they're now illegal, because apparently some people are upset that they make things too easy to order.

Take 2 Interactive is no stranger to fighting bogus complaints about "infringement" concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.

Craig Brittain's $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise -- which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning -- Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)Twitter invoked the forum selection clause of its terms of service -- terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don't like it, well… you can just not use Twitter and/or sue Twitter.Brittain's attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter's terms of service were invalid because [checks filing] it doesn't contain the mandatory "option" of arbitration. Here's the court's take [PDF]:

The latest in the EU's string of internet regulatory efforts has a new target: terrorist propaganda. Just as with past regulations, the proposed rules seem onerous and insane, creating huge liability for internet platforms that fail to do the impossible. This week, we're joined by returning guests Daphne Keller from Stanford's Center For Internet And Society and Emma Llansó from the Center for Democracy and Technology to discuss this most recent danger to online free speech in the EU.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.

If you've shopped for a TV recently, you may have noticed that it's largely impossible to just buy a "dumb" TV set without all of the "smart" internals. More specifically, most TV vendors don't want to sell you a bare-bones set because they want you to use their streaming services. Even more specifically, they want you to buy their sets with their specific streaming functionality because they want to spy on you. Poorly.That's always been fairly obvious to most folks, but it was nice to see Vizio CTO Bill Baxter acknowledge that the reason you pay a discount is because your viewing habits are being collected and sold to the highest bidder: