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It should probably go without saying, but Apple has never looked too kindly upon users actually repairing their own devices. The company's ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company's efforts to force recycling shops to shred Apple products (so they can't be refurbished and re-used), and Apple's often comical attacks on essential right to repair legislation, which only sprung up after companies like Apple, Microsoft, Sony, John Deere, and others created a grass-roots counter-movement via their attempts to monopolize repair.The motivation for these behaviors is obvious: if users are repairing or recycling their iDevices, that means fewer sales. As such, Apple has increasingly become more and more obnoxious on this front, regardless of the impact on consumer satisfaction, customer rights, or the environment. You know, like that time it claimed that Nebraska would become a "mecca for hackers" (oh no!) if the state embraced legislation protecting a consumer's right to repair their own devices.Fast forward to last week, when Apple CEO Tim Cook was forced to write a letter to investors announcing that it had to dramatically scale back revenue projections after it sold fewer iPhones than it had hoped. Part of the problem is that, contrary to the traditional gushing mainstream tech press narrative, Apple's products (and smartphones in general) have become arguably more derivative and less innovative than in recent years, slowing the upgrade cycle. Though Cook states the primary culprit was a slowdown in the Chinese economy (caused in part by Trump's "easy to win" trade war), resulting in fewer iPhones being bought.But buried in the letter is a notable admission Apple has long tried to avoid. That the company's revenue dip was, at least according to Apple, partially due to users repairing and extending the life of their devices:

Last month, ex-sheriff Joe Arpaio sued three publications, claiming their unflattering articles had done $300 million in damage to his reputation. There's money in politicking, Arpaio figured, stating these publications had made it all but impossible for him and his sterling reputation to secure a Senate seat and move on towards securing his rightfully-owed $300 million.The New York Times has filed its motion to dismiss [PDF] and it is an entertaining read. It points out the statements it made were substantially true, and if Arpaio doesn't like his villainous misdeeds characterized as villainous, perhaps he should have spent more of his law enforcement career not acting like a villain. (h/t Zoe Tillman)

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

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Fourteen years after an FBI agent mistakenly dumped Dr. Rahinah Ibrahim on the TSA's "No Fly" list, the Ninth Circuit Appeals Court is calling out the government for its horrendous behavior during the case, as well as ordering it to cough up more in legal fees.The government's concession in this lawsuit was full and complete. It admitted Ibrahim posed no threat to national security, had never posed a threat to national security, and never should have been placed on the list, which stranded her in Malaysia back in 2005. En route to her victory, the government engaged in all sorts of malicious behavior, including arguing her No Fly status couldn't be discussed in open court, placing one of her witnesses on the No Fly list, and doing everything in its power to drag out the litigation. Stripped of all the legalese, the government basically spent most of decade arguing that an FBI agent's mistake fully justified Ibrahim being treated like a national security threat.Ibrahim's case has made a return trip to the Ninth Circuit Court of Appeals -- this time asking for a second opinion on the district court's legal fee awards. The Appeals Court says the lower court shortchanged Ibrahim's representation (civil rights law firm McManis Faulkner) by failing to consider the government's horrendous behavior in its totality. The court really doesn't like the fact the government chose a mistake by a government agency as the hill it was willing to die for. From the decision [PDF]:

You might recall that FCC boss Ajit Pai promised to operate the "most transparent" FCC ever. Initially, Pai lived up to that promise by changing FCC policy so that FCC orders would be released before they were voted on; a pretty obvious improvement of benefit to both consumers and ISP lobbyists alike. But in the year or two since, Pai has shown that genuine transparency is the very least of the chairman's priorities.For example, Pai's FCC has actively refused to aid law enforcement inquiries into who was behind the millions of bogus comments that polluted the net neutrality repeal public comment period. Similarly, the Pai FCC's general response to FOIA requests has been to stall, delay, and ignore said requests whenever possible, resulting in numerous lawsuits by media outlets attempting to get to the bottom of all manner of bizarre FCC policy decisions (like that fake DDOS attack emails show they made up to try and downplay public anger over the net neutrality repeal).This stonewalling extended to more mundane subject matter, like media inquiries into that giant Reeses mug Pai believes is eccentric. Or inquiries into who was behind that aggressively lame Harlem Shake video that featured Pai and some pizzagate conspiracy theorists trolling net neutrality supporters.Hip, man, yeah.As with other, more serious inquires, reporters that filed FOIA requests related to this video were met with stonewalling by the FCC, which tried to claim that numerous FOIA exemptions prevented it from complying. In this case, reporters say they were told by Pai's FCC they couldn't release any emails related to the video's creation because of FOIA exemption b(5) (affectionately referred to as the "Withhold It Because You Want To" exemption by FOIA nerds). That is, you might recall, the same exemption the Pai FCC used when people tried to find out if he worked with Verizon on another, similarly lame video making light of his cozy ties to industry.All of that said, MuckRock Executive Editor JPat Brown persisted, filing numerous appeals stating that the FCC was engaged in a bad faith interpretation of b(5)’s deliberative process privilege. After the FCC spent months denying requests or trying to provide everything but the email bodies, the FCC was finally forced to comply last month, and released at least some internal emails related to the video's creation.What did they say? Bupkis. Several simply highlighted how the Pai FCC has worked with Trump-friendly outlets like the Daily Caller on the video's production and circulation, which we already knew. Other emails the FCC fought to avoid releasing said nothing of note at all:Which is all a long way of showcasing how, as Brown notes, the FCC's aggressive hostility to transparency (even if there's nothing actually at stake) is its default mode of operation:

Sometimes the best advantage is the advantage you take of yourself [?]. Canadian photographer Michael Stemm feels he's somehow been robbed of a market for his photography via affirmative steps he took to ensure the market fell into another entity's hands.Stemm was shocked to find local Walmarts stocking items featuring a photograph he took. But this isn't a case of Walmart finding a picture on the internet and deciding to keep it. It's a case of "read the fine print" before you surrender your creations to a stock photo agency. Michael Zhang of PetaPixel has more details.

This week, our first place winner on the insightful side is Mason Wheeler with a response to antipiracy outfits routinely claiming copyright infringement against sites that simply report when torrents are released:

Gaming Like It's 1923: The Newly Public Domain Game JamOn New Year's Day, we launched a special celebration of this milestone year in which new works are finally exiting copyright and entering the US public domain: a public domain game jam.From now until the end of the month, we're accepting submissions of all sorts of games (video games, board games, tabletop RPGs, LARPs, and just about anything else you can dream up...) based on works from 1923 that have finally become free for all to use without fear of copyright issues. There's a bunch of high-profile material to consider, and of course a whole world of lesser-known works that we hope people will dig into for inspiration.At the end of the month, our growing panel of expert judges (including Cory Doctorow, Whitney "Strix" Beltran, Dan Bull, Rebecca Tushnet, Nicky Case, Mark Lemley, Daphne Keller, Jason Scott, Jason Morningstar, J Li, Eric Goldman, Carolyn Homer, Albert Kong) will select winners in six different categories, to receive prizes including Techdirt copyright swag and copies of our recently-Kickstarted card game, CIA: Collect It All:

A case that involves some shocking numbers has resulted in a lawsuit against the DOJ. An investigation into a raid that ended with law enforcement officers putting 59 bullets into the body of an Atlanta resident has dead-ended and it appears to be because the DOJ doesn't want to talk about it.

So... this post is going to discuss something involving freshman Congresswoman Alexandria Ocasio-Cortez. For a variety of reasons -- some good, some bad, some truly awful -- Ocasio-Cortez (or AOC, as people call her) seems to elicit quite a strong reaction from people, both pro and con. This post is not about her, or her views, or whatever you happen to think about any of it. If you want to argue about her in the comments, feel free, just know that you'll be off-topic and will look silly. Rather, this post is about copyright -- a topic that we talk about frequently, and one on which AOC, in her new job, may at some point be asked to weigh in on as a legislator.The latest "controversy" (if you can even call it that) began as one of the various attempts by some of her critics to dig into her past to try to prove... something(?!?), in this case by unearthing a video of her in college dancing. I remain unclear of what awful thing her critics thought this proved, but apparently it was something about how people can't possibly have been poor if they once had fun dancing. At least that was the suggestion I saw passed around, and it's about as nonsensical as copyright term extension, but alas...There's actually a much more interesting copyright story underneath all of this, much of the history of which we've covered in detail on Techdirt in the past, but which Parker Higgins did a great job recounting on Twitter on Thursday afternoon:

As you've probably noticed, the bickering over a dumb fence most attentive folks realize will never be fully funded or built has resulted in the government partially shutting down, leaving roughly 800,000 government employees furloughed without pay. As garbage and human waste begin to pile up at our under-staffed park system, the FCC this week also announced it would be suspending all but the most essential operations as of last Thursday, with 1,197 of the FCC’s 1,442 employees now left unpaid.According to the FCC, all investigations into fraud (admittedly few and far between with this FCC), merger review, management of spectrum, and approval and testing of new electronics will grind to a halt. And while the agency's 911 and network outage complaint systems will remain operational, there will be nobody staffing the agency to respond to consumer or company complaints. The agency did note that things like its ongoing spectrum auction would continue, since the auction is funded by spectrum sale proceeds:

Seeking to hold tech companies responsible for the actions of their customers and users is a national federal court tradition. Law firms like *checks notes* 1-800-LAW-FIRM and Excolo Law have made a cottage industry of this, scoring dismissal after dismissal of their lawsuits seeking to hold Facebook, Twitter, and YouTube responsible for the violent actions of terrorists around the world.Seeking justice -- or at least compensation -- for wrongs committed against you and the ones you love is a natural instinct. Issues only develop when you take the fight to a third party only tenuously connected to the wrong that was committed. A lawsuit against Apple has been dismissed for the second time. The Fifth Circuit Court of Appeals is no more impressed with the arguments that failed to make an impact at the lower level.In this case, the appellants sued Apple for a car crash caused by a driver reading text messages on her iPhone 5. Maybe the driver turned out to be judgment proof -- especially after being convicted on two counts of criminally negligent homicide. The appellants -- who lost two family members in the auto accident -- feel Apple is liable because it did not implement a lock-out process it had patented in 2008.The appellants claim Apple recognized the texting-while-driving problem but failed to do anything about it. The Appeals Court says [PDF] a Pavlovian response to incoming texts cannot be Apple's fault, not even at the state level.

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Every year a few days after New Year's Day, we post some stats about traffic and comments from the previous year (we do it a few days after New Year's to make sure that we actually have complete data, just in case something goes crazy in the last few days of the year -- and also, because it takes a bit of time to go through all the data, and other work needs to be done as well). For reference, you can see our previous such posts: 2017, 2016, 2015, 2014, 2013, 2012, 2011 and 2010. We still use Google Analytics for traffic data, mainly because it's the easiest to use, even though it is increasingly not the most accurate, in part because many of our readers (*cough* including me) will often block Google Analytics from recording our traffic. As we've discussed in the past, most "traffic" numbers are complete garbage, a fact that most people like to ignore because it benefits themselves. However, here we are only using the traffic stats for comparative or relative purposes, rather than absolute purposes -- which seems much more reasonable (i.e., we'll note which stories got the most traffic, but not detail how much traffic, since we're positive that number is inaccurate or misleading).As per usual, we start out with a look at where visitors are coming from -- and Google says we had visitors from 238 countries this year (up two from last year). As always, the majority of traffic comes from the US, this year right in the same arena as always, with 68% of our traffic originating from the US (last year we noted it had jumped up to 70% from the usual 67% and now it's back at 68%). The UK remains in second place at 5.5% of traffic with Canada close behind at 4.7% of traffic (last year they were much closer at 5.9% and 5.8% respectively). India -- which last year was in 5th place -- jumped into the 4 spot with 2.9% of our traffic, and it jumped over Australia, followed by Germany, Finland, France, the Netherlands and Sweden. These are the same countries as last year in the top 10, but with Finland and the Netherlands switching spots. What's interesting is that last year was Finland's first year in our top 10 (it pushed out New Zealand, that has now dropped down to 16th place -- not much big happening in New Zealand lately, apparently) and now it's already moved up to the 7th spot. If folks are interested, between Sweden and New Zealand are the Philippines, Italy, Japan, Ireland and Singapore.That makes it fairly easy to do our continental roundup, with the top countries in Asia being India, the Philippines, Japan, Singapore and South Korea. It is interesting to see China sending nearly 4% of the traffic from Asia (it's 8th on the list of countries in Asia), as we've been told the site is frequently blocked in China. The top five in Europe all made it into the top 10 and the only noteworthy bit there is that access to the site from Russia keeps dropping. Two years ago Russia made up much more traffic, but over the past couple of years it's kept dropping.In South America, Brazil leads the way, once again. Peru leapfrogged over Argentina, Colombia and Chile to send the 2nd most traffic after being 5th last year. And those other three countries round out the top five. Two years ago we noted that nearly all of Techdirt's traffic from Africa originated in South Africa, but last year, much more was coming from Nigeria and Kenya. Indeed, this year, South Africa provided 35% of traffic from Africa, with Nigeria at 21% and Kenya at 9%. Next up were Egypt at 6% and Ghana at 4%.As per usual, it's fun to take a look at the very bottom of the list, for the countries that send us a single visit per year (Christmas Island!) or perhaps 2 visits per year (North Korea!). I wouldn't read too much into either of those... including any thought that anyone in either place actually visited Techdirt.Basically every year we joke about how reader PaulT takes credit for Gibraltar being the country sending the longest duration visits, which has been consistently true since we started this... until now!. I know PaulT is still around, but maybe he's started blocking Google too, because Gibraltar's duration is now way down in the middle of the pack. Instead, the longest duration comes from... Nepal? Nepal! How about that. Of countries that actually send significant traffic to the site, India has the longest duration (Spain is similar as is Pakistan and New Zealand).Chrome remains the most popular browser used to view the site -- holding steady at 49% of all our traffic. Safari is second at 17% and Firefox with just 10%. Still a somewhat astounding 5% of traffic came from Internet Explorer and another 2% from Microsoft Edge (who uses those?!?). Mobile now represents 39% of our visits and, yes, we've finally inched over towards improving our mobile viewing experience. If you have not yet, check out our beta site to test it out (scroll up to the top of the page for a link to switch over to the beta site, or go into your preferences). It will greatly improve the mobile browsing experience. 35% of mobile visits come from an iPhone and another 9% from an iPad. The Android market is a lot more fragmented, obviously, but it's dominated by various Samsung and Google Pixel models, all hovering at about the same levels of traffic.For the past few years we've highlighted the following chart showing where our traffic comes from:Unlike other sites, we've never focused on relying on others for our traffic by playing the "social media game" only to freak out when those properties change their algorithms and sites freak out as all their traffic disappears. So we're always happy to see our largest source of traffic remain direct visits to the site at over 40%, and only 16% of our traffic coming from social (though, feel free to share our stuff on social media -- we don't mind, it's just that we don't play silly games ourselves to juice our traffic).In terms of sites that do drive traffic to us, Reddit leads the way, followed by Twitter, Facebook and Quora. We also get some traffic from Smartnews, Fark and BoingBoing. In terms of search inbound (nearly all from Google) as per usual, much of that traffic is really "direct" traffic as it's just someone typing "techdirt" into Google to get to our site. Oddly, the single largest query that lead people to our site that was unrelated to some version of "techdirt" was... "can you plagiarize yourself". Apparently (I had no idea), Google links to a Techdirt article in the "Answerbox" on that one, and over 5,000 people did that search and clicked through. Huh. Sending nearly as much traffic is the query for "1 btc to afa". It appears that the top search result on that query is an old 2013 post about someone buying 5000 Bitcoins for $27 and then forgetting about them before rediscovering them years later. I have no idea why Google thinks that's a good link for converting Bitcoin prices to Afghani currency. Perhaps the Singularity isn't quite upon us. The highest search result that makes sense (beyond the variations on Techdirt) is a search on FOSTA.And, with that, we move onto the big lists:Top Ten Stories, by unique pageviews, on Techdirt for 2018:

We've written for years about how retransmission and carriage fee disputes in the cable industry have grown increasingly common and are only getting worse. The short version: when it comes time to sign a new deal paying for content, broadcasters generally demand huge rate hikes for the same channels. Cable operators then play hardball, and during negotiations one side or the other (usually broadcasters) pulls their content from the cable lineup in a bid to apply the resulting consumer anger against the other guy in negotiations.According to cable providers, there were 140 such blackouts last year, up from just 8 back in 2010. One of the biggest problems with these feuds: consumers never see refunds, even though they're often left without access to channels they've already paid for, for months. And while regulators from both parties occasionally make some noise about protecting consumers from such tactics, nothing ever actually happens. Generally, these fights are seen by regulators as "boys just being boys," and the consumer impact is routinely ignored.So as 2019 arrives, so too arrive yet another round of consumers losing access to content they pay for. Millions of Charter (Spectrum) customers in 24 markets this week lost access to local broadcast channels after the cable company couldn't reach an agreement with Tribune Media:

We're all pretty familiar with the United State's take on defamation. Except for the noticeable lack of a federal anti-SLAPP law, the system works pretty well. Those claiming they've been defamed need to meet some rather high bars to win a case, which is how it should be in a country that has enshrined free speech protections. Without these high bars, it's whoever has the most money or the biggest lawyer, rather than the facts of the case. It's not perfect, but dear lord it is so much better than how it's handled by our former overlords.Defamation lawsuits are good business in the UK. The law encourages venue shopping, giving mildly-insulted plaintiffs a route to securing a payout for slightly-bruised feelings. It's a mess and it just keeps getting worse. A recent decision [PDF] by a UK court in a libel lawsuit has delivered some jaw-dropping judicial reasoning.A tweet from a group account used by members of the Ukip party apparently defamed a man by mislabeling him a compatriot of "child groomers." The tweet was composed by one member of the Bristol Ukip. The lawsuit, however, was allowed to be amended to hold someone else completely responsible for this tweet. The end result is one person paying for another person's alleged libel.

In many, if not most, of the copyright disputes we cover here, the stance we take is not typically a purely legal one. Often times, we make mention that one party or another is legally allowed to take the actions it has, but we note that those protectionist actions aren't the most optimal course to have taken. Perhaps the best example of this can be found in a dispute that arose between metal band Arch Enemy and a photographer it had allowed to take concert photos for them.The backstory here goes like this. Arch Enemy has worked with J. Salmeron, a photographer and attorney, to take photos of the band's concerts. Salmeron then posted those photos to his Instagram account, after which they were reposted both by the band's fans and members of the band themselves. All of that was done without issue. One of the band's merchandise partners, however, used one of the photos of the lead singer to promote the band's merchandise on social media accounts. Finding out about this, Salmeron contacted the company and asked for a 100 euro "licensing fee" in the form of a payment to his choice of charity.

Having gotten it into his head that teachers are "indoctrinating" the mushy minds of school students, an Arizona lawmaker has introduced a bill almost certainly headed for a Constitutional challenge.

We've long talked about the more than 750 towns, cities, and counties that have responded to US broadband market failure by building their own broadband networks. We've also talked at length about how data has shown these networks often offer better service at lower, more transparent prices than their purely private sector counterparts, whose apathy has only grown in the wake of limited competition. And, of course, we've talked at great length about the 21 state laws giant ISPs have quite literally written and purchased in a bid to try and keep this phenomenon from taking root.Those protectionist efforts aren't working all that well.In states like Massachusetts, there are countless towns and cities that either only have the choice of expensive Comcast cable broadband, or antiquated Verizon DSL lines the company simply refuses to upgrade (despite countless billions in subsidies, regulatory perks, and tax breaks). After years of apathy from entrenched incumbents, these towns and cities have slowly but surely peeled off and begun building their own networks.Like Alford, Massachusetts, population 486, which now has faster speeds than many cities after locals grew tired waiting for local incumbents. After city residents there decided to build their own fiber network, they're enamoured with the fact that the kids aren't angry when they come home for vacation:

We've talked a lot in the past about the impossibility of doing content moderation well at scale, but it's sometimes difficult for people to fathom just what we mean by "impossible," with them often assuming -- incorrectly -- that we're just saying it's difficult to do well. But it goes way beyond that. The point is that no matter what choices are made, it will lead to some seriously negative outcomes. And that includes doing no moderation at all. In short there are serious trade-offs to every single choice.Probably without meaning to, the NY Times recently had a pretty good article somewhat exploring this issue in looking at what Facebook is trying to do prevent suicides. We had actually touched on this subject a year ago, when there were reports that Facebook might stop trying to prevent suicides, as it had the potential to violate the GDPR.However, as the NY Times article makes clear, Facebook really is in a damned if you do, damned if you don't position on this. As the Times points out, Facebook "ramped up" its efforts to prevent suicides after a few people streamed their suicides live on Facebook. Of course, what that underplays significantly is how much crap Facebook got because these suicides were appearing on its platform. Tabloids, like the Sun in the UK, had entire lists of people who died while streaming on Facebook and demanded to know "what Mark Zuckerberg will do" to respond. When the NY Post wrote about one man committing suicide streamed online... it also asked for a comment from Facebook (I'm curious if reporters ask Ford for a comment when someone commits suicide by leaving their car engine on in a garage?). Then there were the various studies, which the press used to suggest social media leads to suicides (even if that's not what the studies actually said). Or there were the articles that merely "asked the question" of whether or not social media "is to blame" for suicides. If every new study leads to reports asking if social media is to blame for suicides, and every story about suicides streamed online demands comments from Facebook, the company is clearly put under pressure to "do something."And that "do something" has been to hire a ton of people and point its AI chops at trying to spot people who are potentially suicidal, and then trying to do something about it. But, of course, as the NY Times piece notes, that decision is also fraught with all sorts of huge challenges:

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We cover a lot of weird and pointless lawsuits here at Techdirt. This one, filed by Israeli radio broadcaster Galit Gura-Eini, is one of the weirdest. At first brush, it seems like she might have a legit legal complaint on her hands.

While a long shot, we've previously discussed how the outgoing House and Senate could have voted to reverse the FCC's repeal of net neutrality using the Congressional Review Act (CRA). And while the Senate voted 52 to 47 to approve the move last May, efforts to get the 218 votes needed in the House had been stuck in neutral as House Representatives remained blindly loyal to their real constituents: AT&T, Verizon, and Comcast.As a result the clock ran out, and that route for restoration of the rules has died a whimpering demise. As is his tendency, FCC boss Ajit Pai couldn't just savor the "win." He felt compelled to issue a public statement (pdf) in which he not only gloats over the failure, but packs a large number of false statements into a relatively short paragraph:

In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden -- but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it's crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its "Counterfeit and Piracy Watch List", which is a sort of EU version of the USTR's "notorious markets" list. That list has been widely mocked for basically declaring any site that Hollywood doesn't like "notorious", even if no court has ever ruled that it's breaking the law.It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool -- like a phone line -- that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn't seem to care.

Whenever we hear new or renewed calls for more ways for antipiracy outfits and copyright holders to extrajudicially get content and/or sites taken down, there always seems to be one curious omission in the discussion: that antipiracy outfits generally suck at identifying actual infringing content. This is a strange omission, considering that creating ways for content to be taken down without a court's oversight rests the entire reputation for this practice on reports of infringement being accurate. Those of us who have taken to screaming how ripe all of this is for abuse do so because of the collateral damage it causes. Claims to the contrary have to rely on reports generally being accurate.They aren't. In fact, they aren't even close. It's not going too far to say that antipiracy groups of all entities should be well-suited in identifying piracy. And, yet, they quite often target innocent sites that simply post factual information that does not include pirated files, including sites that do factual reporting on torrent availability. One such site is SweTracker, which focuses on detailing Nordic torrent releases, when they become available, and to whom they are attributed.

The prosecution of former NSA contractor Hal Martin continues. Martin somehow managed to exfiltrate sensitive documents and code for nearly 20 years without the NSA noticing. It finally started paying attention after its hacking tools and exploits made their way into the hands of the public via the "Shadow Brokers." These tools then made their way into the computers of the public, wreaking worldwide havoc and giving the leaky agency -- whose literal middle name is "Security" -- another PR black eye.Hal Martin was suspected of handing over tools to the Shadow Brokers but the charges against him are solely related to the mishandling of classified info, indicating the feds no longer believe Martin was involved. But this original suspicion was apparently enough to justify the FBI raid of Martin's residence, according to the federal judge handling his case. The probable cause appears to have been generated by a tweet from Martin's Twitter account, at least according to what can be gleaned from the redacted order [PDF] handed down by Judge Richard Bennett. Josh Gerstein of Politico has the details.

Back in October, comedian Hasan Minhaj's show Patriot Act on Netflix did a pretty thorough critique of Saudi Arabia and its leader Mohammad bin Salman, often referred to as MBS. Go watch it here:It covers a lot of ground, from the death of Jamal Khashoggi to MBS's arresting of a bunch of his cousins to the catastrophic situation in Yemen... and the complicity of the US government and much of Silicon Valley who has taken Saudi money.Not surprisingly, the Saudi government was not thrilled with this episode, or the fact that it was available via Netflix in the country. So, as first reported by the Financial Times (behind a paywall), and since reported in tons of other places, Netflix has agreed to pull that episode in Saudi Arabia in response to a "legal request."Apparently, the "legal request" referenced a cybercrime law that says "production, preparation, transmission, or storage of material impinging on public order, religious values, public morals, and privacy, through the information network or computers" is a crime that can lead to imprisonment and fines. Cyber lese majeste, basically.Not surprisingly, the move by Netflix is leading to tons of criticism directed at both Netflix and Saudi Arabia (but mostly at Netflix for caving).Of course, this has also generated a lot more interest in that particular episode -- which, again, Netflix has left up on YouTube (and which, it appears, is still available via YouTube in Saudi Arabia). It is the Streisand Effect in action -- and, one might argue that Netflix knew that this was the likely outcome. As such, it not only gets to "avoid" whatever criminal punishment was being threatened by Saudi Arabia, but also gets more attention to this particular pointed criticism of MBS... and, as a side benefit, gets a lot more attention for its Patriot Act show.

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Let's do a bit of stage-setting for readers who aren't aware of Fortnite, the multiplayer online battle arena that is generating millions of dollars for Epic Games. Fortnite is multicolored, vibrant playground of death wherein dozens of combatants fight to be the last man/woman standing. Also included are tools to build things (hence the "fort" half) -- like walls -- to surround yourself with to stave off the inevitable. ("Inevitable" meaning a 12-year-old halfway around the world celebrating your death with a purchased "emote.")Fortnite is free-to-play. But it still makes millions of dollars. It does this by selling players cosmetic items. After exchanging real money for Fortnite funbux, players can purchase pickaxes, backpacks, and "emotes." The last one on the list has translated into a flurry of litigation over the last month.Emotes are mostly dances. Being that there's a limited number of instantly-recognizable dances available, Epic Games has been plucking new "emotes" from the vast pop culture wasteland. It then sells these animated sequences to players, making each celebration dance no more individually expressive than the millions of imitators spawned by the pop culture figures Epic is approximating.Three lawsuits alleging copyright infringement have been filed against Epic Games in the last month. Rapper 2 Milly, the co-star of 90s sitcom "The Fresh Prince of Bel-Air" (Alfonso Ribeiro), and a precocious teen better known as "Backpack Kid" (born Russell Horning) have all sued Epic Games for turning their distinctive dances into pay-to-play emotes.All three lawsuits have been filed by Pierce Bainbridge Beck Price & Hect of Los Angeles, California. While other pop culture figures have lamented Fortnite's profitable borrowing of their dance moves, only those retaining this law firm have actually acted on it.Here's the things about the lawsuits: while they all allege copyright infringement, no copyright infringement has actually occurred. This is an extremely difficult hurdle to leap when suing over copyright infringement.First off, the Copyright Office isn't willing to extend protection to all dance moves. As many can overlap with normal human body movements, there are some specifics that must be met. And the shorter the dance is, the less likely it is to be protected.

We've already gone over how fifth-generation "5G" wireless, while a notable improvement in network speed and performance, has been obnoxiously over-hyped by hardware vendors and cellular carriers. We've also noted that in reality, broad availability of 5G-capable handsets and networks are still quite a few years away, and when products do arrive, they won't, contrary to some claims, magically fix the myriad of problems deeply woven into the U.S. broadband industry, most of which have to do with lobbyist political power and the monopoly domination of cellular tower backhaul.AT&T's been among the biggest hype generators for 5G, even though its early offerings on this front, while fast, tend to suffer from high prices and low usage caps (did you expect something else?). In addition to over-hyping 5G's impact, AT&T has been busy both distorting what 5G actually is... and dramatically over-stating actual availability. For example, last year AT&T introduced what it called "5G Evolution" wireless connectivity, which wasn't actually 5G, but a collection of tech (specifically 4x4 MIMO (multiple input, multiple output) antenna and 256 QAM technologies) that simply made existing LTE networks somewhat faster.AT&T's since taken this head fake to an entirely new level. Last week, for example, AT&T began replacing the "LTE" (4G) notifier on many users phones with a "5G E" symbol, despite its phones and networks not actually being upgraded to 5G yet:In short, AT&T is taking some modest network improvements to existing 4G LTE networks, and confidently calling them 5G, knowing full well the Pai FCC isn't likely to do much of anything about it. Confusing customers into thinking AT&T's ahead in the 5G "race" (which isn't a race) appears to be the whole point:

Gaming Like It's 1923: The Newly Public Domain Game JamHappy new year, everyone. Every year, soon after the new year, we post a somewhat disappointing post describing how, once again, no new works have gone into the public domain in the US, because various lobbying interests have continued to extend copyright over and over again, with the last such extension coming in 1998 (the last time old works automatically entered the public domain in the US), better known as the Sonny Bono Copyright Term Extension Act. It's been 21 years of nothing, and that's been quite sad. But this year is different. Thanks to public interest in copyright and people getting increasingly angry about our locked up culture, Hollywood didn't even make a serious attempt to extend copyrights again (to be fair, they put out some feelers, and when they realized it would be a total disaster, they let it go).So this year, we've been seeing tons of celebratory articles, highlighting how works from 1923 are finally entering the public domain (WAY later than they should have, but not much we can do about that now). So, it's time to celebrate. And what good is a public domain if you don't do anything with it? So, today, now that these works are in the public domain, we're announcing the Gaming Like It's 1923 Newly Public Domain Game Jam. We've teamed up, once again, with Randy Lubin from Diegetic Games, who was our partner on the (public domain) CIA: Collect It All card game, to run this game jam.If the idea of a game jam is new to you, it's pretty simple: it's just a month-long contest for you to create games: these can be video games, board games, card games, RPGs, interactive fiction, etc. The one key requirement: it must use something from 1923 that has just entered the public domain. Those works are free for anyone to use, and we should celebrate that by actually making use of them to do something fun. So go create a game and submit it. There are some more details on the rules/restrictions and some pointers on the game jam page. Go make Sonny Bono proud (despite the fact that he believed that, contrary to the Constitution, copyright should last forever). We're offering up copies of our CIA game and some of our copyright-related t-shirts as prizes.If you need some source material for inspiration, Duke's Center for the Study of the Public Domain already has a nice page of highlights of newly public domain material, as well as a nice spreadsheet with even more works. Also, there have been a ton of news articles in the lead up to this first US public domain day in twenty-one years, that might also get you thinking. Here's ones from the Smithsonian, the NY Times, BoingBoing, NPR, Quartz, Motherboard, The Stranger and Slate, so start hunting around for great cultural works to build on...We've already put together an all-star cast of judges, mixing folks from both the worlds of gaming and copyright/public domain, including folks like Cory Doctorow, Whitney "Strix" Beltran, Dan Bull, Rebecca Tushnet, Nicky Case, Mark Lemley, Daphne Keller, Jason Scott, Jason Morningstar, J Li, Eric Goldman, Carolyn Homer, Albert Kong and we'll likely be naming a few more judges over the course of the month. Stay tuned.

Techdirt has been running since 1997 in one form or another, but since 2008, each year for the last post of the year I've written something where I do a little reflection on the year. The initial reasoning behind this was in response to some questions about how I could possibly stay happy while so frequently writing about depressing stuff, and that's what many of the posts have been about: the general optimism of the forward progress of innovation, despite the annoying hurdles and roadblocks that get in the way. Rage all you want at the unfortunate impediments to bringing about a better world, but don't become so cynical that you miss out on celebrating all the wonderful things that have improved lives around the world in the meantime. If you want to view those older posts, here they are:

It's that time again: for our final comments post of 2018, we're looking back on the comments you voted the funniest and most insightful throughout the year. As usual, we've got the top three winners from each category, plus a special outlier that racked up a lot of votes across the two categories combined. For those of you who want to see this week's winners, here's first place for insightful, first place for funny, and the double-winner that took second place in both. Now, on to the yearly round-up...The Most Insightful Comments Of 2018Back in July, we covered the story of a restaurant that was accused by the local police union of serenading some officers with N.W.A.'s Fuck Tha Police, only for CCTV footage to reveal that the incident never happened — one employee just mouthed the words from across the restaurant, and the police department itself had to call out the union for lying. This garnered our 2018 first place winner for insightful from an anonymous commenter:

Five Years AgoThis week in 2013, the feds were begrudgingly loosening the reins on some secrecy in minimal ways, releasing a redacted version of their secret interpretation of the PATRIOT Act (which just a month ago they said could not be revealed) and declassifying some court filings in long-running cases against the NSA while still saying the state secrets mean the court should kill the cases. The 60 Minutes journalist who turned the show over to NSA propaganda was insulting all his critics while the show was giving even more airtime to lies from national security officials (and Rep. Mike Rogers was out doing his own anti-Snowden TV appearances). And we took a look at how if Snowden returned to the US to face trial, he wouldn't be able to make any kind of whistleblower defence — and noted that even though, in private, James Clapper was saying he wasn't worried about terrorists changing tactics following the leaks, in public we had four star generals screaming at reporters and NSA apologists calling for Snowden to be hanged.Ten Years AgoThis week in 2008, Warner Music decided to play hardball with YouTube by removing all its music from the platform — or so it seemed. Later reports suggested that Google took the material down in response to Warner's demands for more money, because record labels just didn't have the leverage they thought in this fight. Though they were still doing fairly well in their battle to shoot down or compromise every innovative new music startup. And though it was just the previous week that the RIAA had announced an end to its lawsuit strategy, they were caught still suing — and excused their way out of it by insisting they couldn't stop lawsuits that were already in motion. Plus, a closer look at the voluntary three-strikes system the agency was touting as a replacement for the lawsuits revealed that the whole thing was more about sidestepping due process than stopping what they were doing, so at least some ISPs were pushing back.Fifteen Years AgoAnd just as three-strikes were the replacement for lawsuits, so too were lawsuits the replacement for RIAA subpoenas this week in 2003. Following the previous week's court ruling for Verizon that the agency can't just subpoena ISPs for customer info (which differed from a recent ruling for Charter, who went back to court to get that fixed), the RIAA decided to start filing lots of John Doe lawsuits first, and boy did they not waste any time getting started. There had been a lot of twists and turns in internet law throughout the year, and some more good legal decisions we feared would lead to bad laws. But at least one good decision affirmed that "DVD Jon" did nothing wrong by creating and releasing DeCSS.

When all you have is a war hammer, everything looks like a war. That's how Wisconsin law enforcement viewed the task it was given: collection of an $80,000 civil judgment from a resident of Marathon County. What should have been a deputy or two approaching the resident and apprising him of his legal options, the Marathon County Sheriff's Department chose to handle it this way:

Heightened sensitivities and a law enforcement track record of overreaction has prompted a New York Sheriff's Office into actions that will probably result in at least one civil rights lawsuit. When students of a New York school decided to create a couple of videos and post them to Instagram, the Sheriff felt compelled to violate the students' Fourth Amendment rights after disregarding their First Amendment rights.

Going back more than five years, we've been warning about the dangers of moving copyright enforcement down the stack, away from the actual hosting companies deeper and deeper into infrastructure. This was, of course, part of the goal of SOPA -- to make infrastructure companies liable for infringement, and to force them to shut down entire sites. But that's exactly a key part of our concern. Infrastructure players have only a single remedy: shut down an entire site, including anything that's not infringing, to deal with claims (never adjudications) of infringing content. And yet, legacy copyright companies have been going after domain registrars for years.We were particularly troubled by a ruling in Germany back in 2014 saying that a registrar could be liable for infringement on a site using a domain from that registrar. And while it's taken years, it appears that that ruling has now been upheld by a higher court.The quick details: Universal Music went after a domain registrar, Key-Systems, in Germany because it had registered the domain name for a torrent site H33t.com. The court forced the registrar to kill the domain, and on appeal that ruling has been upheld, with a specific ruling that a domain registrar can be liable for infringement on a site:

It appears fake news is a crime in the United States -- at least in Ohio. Jacob Sullum at Reason reports an Ohio woman has just been jailed for repeating an unfounded rumor about a gun being found on school grounds.

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Back in September, we wrote about how the GDPR could actually undermine privacy, when Jean Young noted that, when someone hacked into her Spotify account, they were able to download her entire data history. And now there's another example of the privacy implications: Amazon recently responded to a GDPR data export request by sending 1,700 voice recordings... to the wrong user.

For years, we've noted how popular TV ratings firm Nielsen has turned a bit of a blind eye to cord cutting and the Internet video revolution, on one hand declaring that the idea of cord cutting was "pure fiction," while on the other hand admitting it wasn't actually bothering to track TV viewing on mobile devices. It's not surprising; Nielsen's bread and butter is paid for by traditional cable executives, and really, who wants to take the time to pull all those collective heads of out of the sand to inform them that their precious pay TV cash cow is dying?Eventually, the cord cutting trend became too big to ignore, forcing Nielsen to change its tune and start acknowledging the very real trend (though they called it "zero TV households" instead of cordcutters). Broadcasters (especially those hardest hit by cord cutting) didn't much like that, and began bullying the stat firm when it showed data that didn't jive with the view a foot below ground. While Nielsen slowly improved its methodologies, it would occassionally back off on certain data collection and reporting changes if the cable and broadcast industry complained loudly enough.Ironically, this fealty to wishful thinking may not pay dividends for Nielsen. Nearly every broadcasters in your cable lineup is expected to launch their own streaming service by 2022. Many of these companies (like CBS) are now considering ditching Nielsen because, they claim, it's charging too much money for a user tracking system that hasn't adapted for the streaming era:

California has long protected police officers from accountability. Most police misconduct records are impossible to obtain via public records requests. The restrictions covering these personnel files even prevent defense attorneys and prosecutors from accessing them, allowing cops with lousy track records for telling the truth present testimony as if they've never committed a misdeed or told a lie.After years of legislative surrender to police union pressure and an overall deference to all things law enforcement, this year's model finally managed to get a records reform bill to land on the governor's desk. The new law goes into effect January 1, 2019, opening up access to a number of records Californians have never seen.

We've written many times about how the patent system is a poor fit for software. Innovation in the U.S. software industry happens despite, not because of, the thousands of software patents that are granted each year.But software is not the only industry where patents make very little sense. In the 1990s, the Federal Circuit opened the door to patents on methods of doing business. While the Supreme Court tried to undo some of that damage, financial institutions are still hit with patent lawsuits. Many of these suits come from trolls that don't produce anything. And yet, just as in the tech sector, there are some financial companies that keep heading back to the U.S. Patent and Trademark Office seeking a 20-year monopoly on some tactic or another.This month, we're highlighting U.S. Patent Number 10,147,140, which was recently granted to BNY Mellon Bank. The first claim of the '140 patent uses a lot of financial jargon to describe an extremely simple process: checking social media for a particular event or statement, then making a trade based on that "investment triggering content." One example of that: making a trade because someone put a hashtag in a tweet.Even if this was a new product idea or investment strategy, it is not a new invention. The trend of stock market trading has been clear now for decades: automated trading has become faster and more computerized each year. BNY Mellon Bank did not invent computerized trading, social media, or anything else remotely technical. Rather, its patent proposes the idea of trading based on a social media event.In the patent prosecution documents, the patent examiner even starts out by admitting that "the concept described in claim 1 is not meaningfully different than the economic concept… found by the courts to be an abstract idea." Appropriately, the examiner cited Alice v. CLS Bank, which forbids "do it on a computer"-type patents. Similarly, Alice should clearly forbid patents on very old practices, like trading stocks, and simply adding in "social media monitoring.But then the examiner goes on to agree with the applicant's specious argument that just because the claim has additional limitations—such as "using a processor to withdraw[] funds from a customer financial account and then purchase shares," and an interface that shows social media information—it becomes eligible. "When viewed as an ordered combination, the additional limitations amount to significantly more than the abstract idea," the examiner concludes, "[t]he idea is patent eligible."Adding generic computer processes shouldn't have made this patent eligible. So how does it happen? One big problem is that incentives in the patent application process line up to favor the granting of patents. Patent examiners are graded through a "count" system that gives them progressively less credit as persistent applicants file new amendments, arguments, requests for continued examination, and continuation applications. This system makes it impossible for the Patent Office to ever finally reject an application. There is only one way for the Patent Office to get rid of a persistent applicant: give them a patent.In this case, the BNY Mellon's lawyers essentially just pounded their fists on the table. They offered nothing more than the bare insistence that the patent included an "ordered combination," and that should negate the Alice rules. "There was no showing that the combination as a whole failed to provide an inventive concept," wrote the applicants. The examiner simply gave up and issued a patent that is plainly ineligible under Alice and many other cases.We've written before that the Patent Office needs to do a better job applying Alice. Unfortunately, the new Director appears to want the opposite. Other lobbyists are pushing for legislation to undo Alice entirely. If they get their way, we can expect another flood of silly patents on business methods and software.Reposted from the EFF's Stupid Patent of the Month series.

Back in September, the Ninth Circuit Court of Appeals unshockingly decided that it's illegal to arrest schoolchildren just to "prove a point." The Fourth Amendment demands probable cause for an arrest, even an arrest of students who have (slightly) diminished Constitutional rights.This was Deputy Luis Ortiz's solution to a problem he shouldn't even have been attempting to solve. Ortiz decided the students he was speaking to about alleged bullying weren't taking him seriously enough, so he tossed a few in squad cars and took them to the Sheriff's office. Nothing about this was legal, but the county decided to defend this all the way to the appellate level. The Ninth Circuit's assessment of Ortiz's actions was harsh but far more fair than Ortiz deserved.

For years, the RIAA and MPAA have pointed to the millions upon millions of takedown notices sent to Google as "evidence" that the DMCA notice-and-takedown process doesn't work. You can find lots of examples of this, but here's an MPAA VP making this exact point:

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

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How many lawsuits does it take to get Comcast to back off of shady fees designed to falsely inflate the company's advertised prices? Good question.For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above-the-line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control.Back in 2014, Comcast introduced a new $1.50 per month surcharge it called its "Broadcast TV Fee." Said fee was really just a portion of the cost of doing business for Comcast (programming), busted out of the full bill and hidden below the line -- again to help the company falsely advertise a lower price. Over the last four years Comcast has quietly but quickly pushed this fee skyward, this week informing customers that -- alongside numerous other rate hikes like its "Regional Sports Network" fees -- the company's Broadcast TV fee would now be up to $10 per month for some cable TV customers.While the federal government (FTC, FCC) routinely turned a blind eye to this practice (regardless of which party was in control), Comcast and other cable ops have been hit by a rotating crop of investigations and lawsuits for the practice. Just before Christmas, Minnesota Attorney General Lori Swanson joined the festivities, announcing that her office had filed suit against Comcast for "charging customers more than it promised for cable television packages, charging for unordered equipment and services, and not delivering prepaid Visa cards promised in its promotions."The AG's office is quick to point out that Comcast enjoys falsely telling complaining customers that the bogus fees it uses to covertly raise rates are the fault of the federal government:

India's government is joining the rest of the world in seeking more direct control of the internet. We in the US used to be able to point at Section 230 immunity and the First Amendment as evidence of our hands-off approach, but with the passage of FOSTA and multiple legislators demanding tech companies engage in more moderation and less moderation simultaneously, we've ceded a lot of the high ground.The Indian government, however, is seeking to expand its control of the internet far past what should be considered reasonable in a nation whose government pays occasional lip service to protecting free speech. In addition to its already-abused laws covering certain forms of speech -- which, in practice, tends to mean criticism of government officials -- the Indian government is demanding speedy takedowns of content and direct access for law enforcement to user info, posts, and comments around the clock.