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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.

If you're not a resident of the UK, thank the First Amendment for not turning Twitter fights into police action. The UK's anti-hate speech laws have been extended to cover merely impolite speech -- at least according to UK law enforcement agencies who say ridiculous things like this. [h/t Amy Alkon]

We've long discussed the explosion eSports has undergone over the past few years. From a largely overseas pastime, eSports has since grown leaps and bounds, with collegiate and professional programs sponsored by educational institutions and sports leagues. Buy in from major media properties in sports has occurred at the same time, including from ESPN. The trajectory of eSports has seemingly moved in only one direction: upwards.But it was always going to be the case that this progress would eventually hit a wall. Those of us interested in the acceleration of eSports have been looking for symptoms of this wall, unsure of where it would come from. Now we have something of an answer, with a prime example of why eSports needs to undergo its next step in evolution, as demonstrated by the chaos that was Blizzard shuttering its Heroes of the Storm league.For those of you not in the know, the Heroes of the Storm Global Championship was a massive thing, with hundreds of players, production crews, broadcasters, commentators, and streamers building the whole thing in to a true ecosystem. Started in 2015, the game continued to be developed to support the eSport league. Until a few days ago, when Blizzard unilaterally decided to kill it off.

Criminal defamation laws are stupid. But they're more than stupid: they're harmful. Plenty of entire countries still have them. But those countries don't have a First Amendment. With the First Amendment in place, it makes little sense to criminalize speech that can be handled through civil litigation. Nevertheless, these outdated laws are still on the books. In some cases, courts have already found them unconstitutional, but legislators seem unwilling to remove laws that are only ever abused by the government.Due to this combination of laziness and self-interest, half the country still allows the government to arrest people for engaging in alleged defamation. One of those 25 states is New Hampshire, where the ACLU is now working to have the law ruled unconstitutional.The case stems from the arrest of New Hampshire resident Robert Frese. Frese was hauled in by Exeter cops for calling the Exeter police chief "corrupt" and saying that he had "covered up" for dirty Exeter cops. The arrest of Frese for criticizing Exeter law enforcement did nothing to undermine either of his claims. If anything, it just made Exeter cops look dirtier and Police Chief William Shupe look more corrupt.The criminal defamation charges ended up being dropped by the prosecutor, who found the charge wasn't worth pursuing. That ended this criminal prosecution under the stupid state law, but it didn't get rid the stupid state law that allowed Police Chief Shupe to retaliate against Frese in the first place.That's where the ACLU comes in. Suing on behalf of Frese (and New Hampshire residents in general), the ACLU points out in its lawsuit [PDF] that criminal defamation laws are mainly used by government officials to shut down criticism or otherwise punish members of the public.

While the thinking behind the GDPR may seem sensible, time and time again we hear stories about how, in practice, it's a complete disaster. Some of that may be because of people misinterpreting the law. Some of it may be because the law is being abused. And some of it may be because the law is too vague. But some of it is just because the law tries to do way too much. So, today, we have a little story of how the GDPR nearly ruined Christmas for a small town in Germany.The town of Roth has a long-standing tradition where children would write down their Christmas wishes, which would then be placed on a tree in the market. The city council would read the wishes and try to get the children what they wanted. Nice, wholesome, holiday good deeds and all. But... it became tricky under various privacy regulations, starting with Germany's own data privacy law and, later, the GDPR, because in order to get your wishes fulfilled, children had to provide their names and identifying information... and that's a big no-no under the law:

Rep. Louie Gohmert is one of the most technologically inept Congressmen we have the misfortune of being "served" by. Getting to the top of this list isn't easy. The halls of Congress are filled with people who truly don't understand the tech they're attempting to regulate. Nor do they appear to be making any effort to educate themselves. Gohmert, however, seems to believe his position as an elected official gives him tech smarts he actually doesn't have, so he spends a great deal of time embarrassing himself when grilling tech reps during Congressional hearings.Gohmert was one of the participants in the Social Media Bloodsport Hearings of 2018. Held over the course of several months, the hearings were 75% grandstanding and 20% misunderstanding the issues at hand. Social media services have been hit hard recently for appearing to bury/deplatform right-wing accounts while simultaneously allowing the platforms to be overrun with foreign state-operated bots. It's ugly but the ignorance displayed by Gohmert and others during the hearings was just as galling.It was at these hearings a new myth about internet platform immunity came into being. Somehow, these lawmakers looked at Section 230 of the CDA and decided it required platforms to be "neutral" to avail themselves of this protection. A Senate hearing in April featured Rep. Ted Cruz demanding to know if Facebook considered itself a "neutral public forum." Mark Zuckerberg said he'd look into it, claiming he wasn't familiar with the "specifics" of the "law [Cruz] was speaking to."Bad answer. And the bad answer made Cruz look like he'd just played a successful round of "Stump the Tech Magnate." But he had done nothing more than state something not backed by actual law. That should have been the end of it, but people who really wanted to believe Section 230 immunity requires "neutral" moderation used Cruz's ignorance as the starting point for stupid lawsuits almost certainly destined for quick dismissals.It's one thing for the public to make bad assumptions about federal laws. It's quite another when federal lawmakers do it. Rep. Gohmert, playing to the home crowd [read the replies], has declared he's going to strip immunity from service providers who "use algorithms to hide, promote, or filter user content."

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Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:

As T-Mobile and Sprint attempt to merge (once again), their executives are making all the usual claims ahead of such mergers: that the mega deal will create immeasurable "synergies", that the reduction of major U.S. wireless competitors from four to three will somehow create competition, that the deal will somehow make it easier for them to deploy next-gen "5G" networks, and that the deal will somehow magically create oodles of new jobs.Of course if you've studied telecom history or been a part of one of these deals as a mid or low level employee, you probably know these claims are almost always bullshit. Usually what happens is nothing changes for a year, as the buyer tries to sooth employee and media concerns about people being shitcanned. Not long after that, most of the redundant positions start to get eliminated, specifically, in a merger like this one, in middle management, support, and retail. T-Mobile CEO John Legere has repeatedly tried to claim the exact opposite, insisting to anybody who'll listen that this time is sure to be different:

We've got a tie for first place on the insightful this week, with a pair of comments from our post about YouTube's $100-million upload filter (and all its failings). First up, we've got an anonymous comment noting that YouTube even allows the removal of private archival videos:

Five Years AgoThis week in 2013, NSA revelations continued to trickle out, such as the unsurprising fact that the agency had cracked standard mobile phone encryption, and that along with the GCHQ it was spying on UNICEF. But the backlash also started to come hard from all three branches of government: a judge ruled that bulk metadata collection is likely unconstitutional, the White House's task force issued surveillance reform recommendations that were surprisingly much more substantial than we expected (though Marcy Wheeler — then and now one of the best reporters out there keeping a close eye on the feds — wondered if this was just to stall constitutional analysis), and seven members of the House Judiciary Committee demanded a DOJ investigation into James Clapper for lying to congress (though at least one representative called this a disgrace).The NSA was in a generally unhappy place of course, and one reporter told the story of an official calling for reforms to the first amendment because of how mean the press was being to the agency — though they must not have been talking about CBS, which turned over an entire episode of 60 Minutes to NSA apologia and propaganda, or the Wall Street Journal, whose editorial board called Snowden a sociopath and opposed any rollback of NSA programs.Ten Years AgoThis week in 2008, Hasbro finally dropped its lawsuit against Scrabulous, ending a long and stupid saga. EMI was in a copyright pretzel, using Coldplay's copyright to take down a mashup video that (misleadingly) compared the songs by Coldplay and Joe Satriani at the heart of a copyright lawsuit. The RIAA was still aggressively suing students, and record labels were caught disobeying a court order about how it could use student info it had acquired (by demanding money instead of only seeking injunctive relief), and then by the end of the week the RIAA had officially decided to abandon its mass lawsuit strategy — because it had negotiated secret three-strikes deals with various ISPs.Meanwhile, more votes lost by Diebold machines in Ohio were discovered, which I mention because...Fifteen Years Ago...Why were Diebold machines still in use in 2008 anyway? This same week in 2003, the company's problems were already pretty clear. California was considering banning them from selling voting machines at all, and it was revealed that they had employed at least five convicted felons in management positions. More and more people were calling for a paper trail for the electronic votes, which Diebold offered to add to its machines — at a ridiculous jacked-up price because, as internal memos revealed, they figured the customers had no choice but to pay.This was also the week that the CAN SPAM bill was signed into law, effectively legalizing spam while not being particularly effective in restricting or controlling it. Google also quietly launched its book search feature, and this alongside some other recent launches was making more people realize that Google was going to be something much bigger and different than just a web search engine.

We've written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG's "vicarious infringement" claims, while letting the "contributory infringement" claims move forward. In October, the court rejected UMG's attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande's use of the DMCA safe harbor defense. I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can't make use of the safe harbors because... it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.So, without a policy, they couldn't have reasonably implemented it... and thus, no safe harbors. Given the facts of the case, that's perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn't have a policy, but because it didn't follow its own policy).Of course, that doesn't necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted "that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue." Effectively, UMG will need to show that Grande "induced" infringement by its actions, and Grande will claim it did no such thing. But it can't just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

Somehow, it seems things move quite quickly in the Great White North. It was only in October that we discussed Canadian ISPs making a great deal of noise over the plague that is settlement letters sent to their subscribers over supposed copyright infringement. In the Canadian system, rightsholders pass along a letter to the ISP, which is then supposed to pass those letters along to the subscriber. ISPs began complaining that its own administrative burden was being repurposed as part of the copyright trolling business model, used to extract settlements purely out of fear. In November, ISPs got their wish, with a proposed law that would amend copyright law to outlaw these letters when they include these types of extortion attempts.And now, in December, the law has officially passed, bringing an end to threat settlement letters sent to subscribers through their ISPs.

Last week, we pointed out that while you might hear copyright industry lobbyists and EU regulators repeatedly insisting that all of the concerns being raised about the EU Copyright Directive are being driven by "big tech" lobbying, the actual data shows that over 80% of the lobbying effort has come from legacy copyright industries, pushing really, really hard for a massive expansion in copyright law that will fundamentally change how the internet works (and not in a good way). It's become clear, watching these lobbyists in action, that they will say absolutely anything, no matter how ridiculous, if they think it will lead to getting their beloved Article 13, where the sole purpose is to fundamentally change the internet from a communications medium, in which anyone can share anything they create, to a fully broadcast medium, where everything must first be licensed. Obviously, the legacy copyright companies want this badly, because they're in the business of licensing. And, if everyone suddenly needs to get licenses, suddenly they become relevant again.But, as we mentioned last week, those same lobbyists are freaking out that EU regulators might possibly add a "safe harbor" to Article 13. Even with a safe harbor, Article 13 is a problem, but without a safe harbor it's a disaster. The "safe harbor" would just mean that if internet companies follow specific steps to rid their platforms of infringing works, then they can't get sued. But the copyright players badly want to be able to sue, because that's how they rid the internet of this amateur competition -- by making it too costly to continue to host.But in one of the letters sent last week, by the movie and sports industries, they made an odd argument against the safe harbor. Hilariously, they claim that a safe harbor would change copyright law, and the purpose of Article 13 is to codify existing case law. Really:

On Thursday morning, I started seeing a bunch of tweets pop up in my feed from people of Iranian backgrounds, who no longer lived in Iran, who were having their entire Slack groups shut down, with the company blaming US laws regarding sanctions on Iran.

And so we're back with Facebook Derangement Syndrome. As we've noted a few times in the past, many of the freakouts about Facebook's privacy practices involve completely misunderstanding or exaggerating the nature of what Facebook did -- and presenting things not just in the worst possible light, but in an actively misleading way. This is especially true in the context of privacy questions, where many people seem to interpret Facebook's good decisions not to lock down YOUR OWN access to your own data as a bad thing and then pressure the company to lock up access to your own data, limiting what you can do with it.Of course, there is some amount of inherent conflict between open systems and privacy. Indeed, going back eleven years, we had a post highlighting the potential privacy conflicts of Facebook's "open social graph." And, of course, at the time, Facebook was celebrated for being so open and not locking up everyone's data, but enabling it to be used more widely in other systems.And that brings us to this week's big NY Times story on Facebook. As we already discussed, what it really highlighted is what a terrible job Facebook does in being open and transparent about how it uses data. But we were also left with some questions about some of the claims in the NYT report, especially regarding the claims that other companies had access to messages.As more people have looked at it, it increasingly appears that the NY Times reporting on this was really, really bad and contributed to the hysteria, rather than improving understanding. The companies that had access to Facebook messages involved software integrations where those third party apps allowed you to directly access Facebook Messenger from those apps -- in the same way that if you want to use Facebook Messenger on your mobile phone, you have to give that phone access to your messages so that... you can use FB Messenger.As Mathew Ingram notes in an article about this, early on, many people rightfully celebrated Facebook's open approach, which involved the opposite of locking down data, but purposefully exposing it to make the rest of the internet more useful. It was the kind of openness and open integration most people used to celebrate. It was the opposite of building a locked box silo of your data.Will Oremus, over at Slate, further notes that the integrations Facebook is now being slammed for in the Times were ones that people were happy about in the past, though, perhaps naively.

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Earlier this year, news leaked out about an unannounced TSA program. "Quiet Skies" was the TSA's latest boondoggle, one that sent air marshals all over the US, tailing travelers just because. Things as simple as boarding too late/too early or using the restroom at the wrong time were designated suspicious behavior. It's was such a shady program even the air marshals didn't like it. Some felt it was illegal. Others found it ridiculous. But nearly every air marshal who spoke about the program called it as waste of time and money.Following the Boston Globe's exposure of the program, the TSA was summoned to a Congressional hearing to answer questions about "Quiet Skies." The TSA admitted the program had caught zero terrorists but had managed to surveil nearly 5,000 individuals en route to this failure. The agency claimed the useless program was subject to "robust oversight" -- a claim hilariously delivered to members of Congress who had first heard about the program from the Boston Globe.

So we've long noted how broadband usage caps on fixed-line broadband connections are bullshit. While ISPs used to insist that such limits were necessary to manage "congestion," they've long since been forced to back off those justifications after analysis and their own internal documents showed this wasn't true. For giants like AT&T and Comcast, monthly broadband caps serve two purposes: one, they provide flimsy cover allowing ISPs to further raise rates on what are already some of the highest prices for broadband in the developed world. Two, they can be used anti-competitively to give themselves an unfair advantage.Case in point: ISPs will often exempt their own services from these limits while still penalizing competitors like Netflix, something the former Wheeler FCC was just starting to crack down on as an anti-competitive practice before Trump and Ajit Pai rose to power. And this week, AT&T took another step toward using usage caps as a weapon when it began informing its broadband customers that they won't face usage caps -- if they're willing to subscribe to AT&T's own streaming services:

As you'll recall, Tumblr recently decided to go the Puritan route with its platform, announcing that it would begin filtering "porn" from its platform. As we pointed out, this was bound to go hilariously wrong, with plenty of innocent content getting swept up in the auto-filters. There were already examples of this, ranging from pictures of cartoons to what looks to be accidental photos people took on their couches. You may have thought at that time that no better example could be found for how dumb auto-filters like this tend to behave.But Tumblr itself accidentally just provided such an example. Seeking to clarify what is and is not allowed, Tumblr posted a GIF of the kinds of images that would be allowed on the site: artwork, educational material, etc. It all went swimmingly... until others tried to post the exact same GIF to see what would happen.

Being fully immersed in an era of copyright protectionism, it seems that we've become numb to the effects of it in many ways. One of those effects is how fans who create content around their favorite franchises are treated. The basic policy of the entertainment industry towards fan-films and similar creations appears to be that they can either bully those projects out of existence, sue them out of existence, or do one or the other even after confusingly giving tacit approval for such projects. Those are the options in full, as far as most entertainment companies are concerned, while the public looks at those actions and shrugs their collective shoulders. You'll even occasionally hear noises such as, "Well, what did these fans expect?" All this, keep in mind, for the crime of trying to express fandom, and free advertising for the franchise they love.Well, if you're Games Workshop, the company behind the Warhammer 40k franchise, you react to a dedicated fan who has created great fan-films by hiring him to do his thing professionally.

Things were never going to turn out well for mp3 remarketer ReDigi. Its business model -- facilitating third party sales of digital files -- worked better as a rhetorical device. It attempted -- perhaps inadvertently -- to obtain an answer to the eternal question: do you own the stuff you buy? When it comes to digital goods, the answer is almost always "no." Platforms shut down. Rightsholders dissolve contracts. File formats lose support. And DRM is all over everything, frequently making pirated goods superior to those people pay for.ReDigi claimed it could harness this untapped market, somehow providing a sales platform for infinite goods that wouldn't allow sellers to sell the same goods infinitely. It claimed it could verify the destruction of the "original" files -- something that could be easily circumvented by storing additional copies where ReDigi couldn't "see" them.Obviously, ReDigi was sued almost immediately. Records labels sought -- but didn't get -- a permanent injunction blocking ReDigi from getting into the used mp3 business. But they did get a win in court roughly a year later. Five years ago, a federal court ruled in favor of record labels, finding that ReDigi's business resulted in the production of new copies of files -- something not allowed under copyright law. If ReDigi just allowed for the swap of physical media (hard drives, thumb drives with mp3s on them), perhaps it might be lawful. But even then, the court seemed unwilling to entertain the hardware option as anything but rhetoricalReDigi appealed. Five years later, it finally has a decision in hand, but not the one it wanted. Eriq Gardner of The Hollywood Reporter has more details.

This was pretty much a foregone conclusion -- but a few different people (including Trump's ex-fixer Michael Cohen) have sued Buzzfeed for publishing the so-called "Steele Dossier," which were a collection of opposition style research put together by Christopher Steele about Donald Trump and his associated. While Cohen dropped his suit once he realized that discovery was about to create a huge, huge mess, another such lawsuit continued -- the one filed by Aleksej Gubarev and some of his companies, complaining about references to himself and his companies in the dossier.We noted that this lawsuit was "doomed to fail" and that's exactly what has happened. We expected that it would likely fail because Buzzfeed is, at the very least, the wrong party to sue. They were simply releasing the newsworthy file to discuss what was being passed around Washington DC circles. But they did not produce or write the document.Instead, the court went with another option: the fair report privilege -- which is an important protection for journalism found in many states. It basically says that the press is not liable for publishing defamatory content, so long as you are relying on public documents that were part of an "official action" of the government. In NY, where Buzzfeed is based, the court found that the fair report privilege is fairly broad, but the question was whether or not the collection of reports that made up the dossier were used in an "official action" from the government. Buzzfeed argued that since President Trump was briefed on the document, then it clearly was a part of an official government action. Gubarev argued that just the part about him needed to be part of an official action.The court determines that Buzzfeed's argument wins the day:

The State of New York has struck a landmark settlement with the nation’s second-biggest cable company after it repeatedly failed to deliver the broadband speeds it advertised, and tried to trick regulators into thinking it had.Interim New York State Attorney General Barbara Underwood’s office has announced that it has reached a $174.2 million consumer fraud settlement with Charter Communications (Spectrum). As part of that settlement, the cable giant will be required to dole out $62.5 Million in direct refunds to people who paid for speeds the cable giant couldn't actually deliver. Each impacted customer should net around $75 and $150 each, as well as $100 million in premium channel freebies spread among the 2.2 million customers impacted.The NY AG was quick to note this was the biggest such payout by a broadband provider in history:

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Over the years, we've written an awful lot about asset forfeiture and how it is basically the government stealing shit they want with almost no due process. But the reason we started writing about asset forfeiture was when ICE used that process to seize a bunch of websites based entirely on the claims of the RIAA and MPAA that those websites were distributing copyright-infringing material. It turned out those claims were totally bullshit, leading to ICE eventually agreeing to return a blog over a year after it had been seized, and two others after holding them for over five years.I'm still perplexed that this story was almost entirely ignored by the media. This was outright censorship by the US government -- the equivalent of seizing a printing press from a publication and holding it based on nothing other than some private party's complaints about the content of their publication. Incredibly, an ICE official, soon after the initial seizures, made the following bold claim:

We've talked a lot about how while fifth-generation "5G" wireless will deliver faster and lower latency networks, its role as some kind of broadband panacea has been severely over-hyped. For one, it's going to take years before users actually see a healthy selection of actual 5G devices in the wild (Apple's 5G iPhone won't launch until 2020 or later). And despite carrier promises, deploying these upgrades to traditionally ignored rural and less affluent urban markets will take years.Even then, these same companies' monopoly over cell tower connectivity in many areas will only ensure prices remain high. That's all compounded by the looming Sprint, T-Mobile merger, which will reduce the number of overall competitors in wireless from four to three, something that never ends well for price competition should you actually bother to study telecom history (especially US telecom history).None of this has stopped wireless carriers, network gear makers, and stenographing news outlets from heralding 5G as an almost mystical panacea. A panacea that's going to single-handedly birth the smart cities and cars of tomorrow and result in us all (I'm told) working four day work weeks. Of course more quietly, even Wall Street has acknowledged that many of these promises are over-hyped as even initial 5G marketing tech demos under deliver on unrealistic industry promises. To be clear 5G is a good thing. But it's not fucking magic.This week, AT&T made a lot of waves by announcing it will be the first to "launch" 5G next week in select cities. Even AT&T, a company with a bad habit of redefining what a "launched" broadband market actually means, chose its words carefully in terms of managing user expectations:

Facial recognition tech isn't working quite as well as the agencies deploying it have hoped, but failure after failure hasn't stopped them from rolling out the tech just the same. I guess the only way to improve this "product" is to keep testing it on live subjects in the hope that someday it will actually deliver on advertised accuracy.The DHS is shoving it into airports -- putting both international and domestic travelers at risk of being deemed terrorists by tech that just isn't quite there yet. In the UK -- the Land of Cameras -- facial recognition tech is simply seen as the logical next step in the nation's sprawling web o' surveillance. And Amazon is hoping US law enforcement wants to make facial rec tech as big a market for it as cloud services and online sales.Thanks to its pervasiveness across the pond, the UK is where we're getting most of our data on the tech's successes. Well... we haven't seen many successes. But we are getting the data. And the data indicates a growing threat -- not to the UK public from terrorists or criminals, but to the UK public from its own government.

Online services like Airbnb and Uber like to style themselves as part of the "sharing economy". In truth, they are just new twists on the rental sector, taking advantage of the Internet's widespread availability to broaden participation and ease negotiation. This has led to a tension between the online services and traditional local regulators, something Techdirt noted in the US, back in 2016. Similar battles are still being fought around the world. Here's what is happening in Germany, as reported by Out-Law.com:

There's finally a bit of a happy ending to one of the more ridiculous defamation lawsuits we've covered. In June 2017, the ousted head of a Tennessee culinary arts programs took umbrage to things written about him by a local journalist. The article in The Tennessean expressed pleasure in seeing Tom Loftis removed from the culinary arts program and replaced by Randy Rayburn, who journalist Jim Myers felt was a positional upgrade.Naturally, the ousted Loftis decided to [checks last 18 months of notes] sue his replacement for things a journalist wrote. Tennessee has no anti-SLAPP law, so the lawsuit managed to drag on for well over a year, including one appeal by Loftis after losing the first round.The initial court decision should have ended it. The judge found Loftis could not even satisfy the minimal requirements to move it past the first motion to dismiss. The case was dismissed with prejudice and Rayburn awarded legal fees. As Rayburn's lawyer, Daniel Horwitz, pointed out then, the legal system wasn't put in place to "litigate hurt feelings."Loftis appealed. It went no better at the higher level. After pointing out Loftis' ill-advised decision to sue his replacement rather than the journalist who actually wrote the offending article, the court went on to state that no reasonable person would find the article offensive and that none of it -- no matter who wrote/said it -- even approached the outskirts of Libelville.The appeals court also elicited this amazing confession from Loftis' legal representation during oral arguments:

There's another Facebook scandal story brewing today and, once again, it appears that Facebook's biggest enemy is the company itself and how it blunders into messes that were totally unnecessary. When the last story broke, we pointed out that much of the reporting was exaggerated, and people seemed to be jumping to conclusions that weren't actually warranted by some internal discussions about Facebook's business modeling. The latest big scandal, courtesy of a big New York Times story, reveals that Facebook agreed to share a lot more information than previously known or reported with a bunch of large companies (though, hilariously, one of those companies is... The NY Times, which The NY Times plays down quite a bit).

US telco CenturyLink is under fire for temporarily disabling the broadband connections of broadband customers in Utah unless they click on an ad for CenturyLink security software. Even more oddly, the telco is repeatedly (and falsely) trying to blame a new Utah law for its ham-fisted behavior.It began when a CenturyLink user in Utah posted to Twitter that his CenturyLink broadband line suddenly and mysteriously stopped working. Using what appears to be JavaScript ad injection (an already contentious practice), Centurylink then sent the user a notice stating his broadband connection would not be restored until he acknowledged receipt of the message, which appears to be a glorified advertisement for CenturyLink's @Ease filtering and security software:

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If you can't stand the heat, whip out the DMCA notices, I guess. Earlier this week, in response to criticism, a game developer hit a YouTuber with dozens of bogus DMCA claims. "Eroktic," who has posted several videos of him playing Battlestate Games' multiplayer shooter "Escape from Tarkov," was on the receiving end of nearly 50 claims.Rather than pretend this is about copyright by claiming it didn't give Eroktic permission to use footage of its game, the Russian developer has been surprisingly open about its abuse of the DMCA system. Comments given to Polygon's Charlie Hall show Battlestate is well aware it's misusing YouTube's copyright claim process, but says that's the only way it can protect its good name.

It's odd how conventional wisdom usually isn't all that wise. For example the entertainment industry for years has proclaimed that piracy was killing numerous business models, despite record profits and a steady parade of studies showing that pirates routinely buy more legit content than their non copyright-infringing counterparts. The entertainment industry willfully ignored for years (and often still does) that many of these users were engaging in copyright infringement because owners and distributors were failing to provide this content at a reasonable price via legitimate means.The chicken-little argument then mutated over the years to imply that streaming services like Netflix were also killing traditional brick and mortar movie theater attendance. That, too, simply isn't true.For example, a new study by EY’s Quantitative Economics and Statistics group (funded by the National Association of Theater Owners) found that young people that stream a lot of content at home are also more likely to go see movies in brick and mortar theaters, showcasing how different methods of media consumption are complementary, not automatically cannibalistic. More specifically, the study found that users who visited theaters nine times or more in the last 12 months consumed more streaming content than consumers who visited a movie theater only once or twice over the past year:

Last month we wrote about the Swedish ISP, Bahnhof, and its decision to stage a bit of an online protest by putting up a "block" page for publisher Elsevier and a local court, after Elsevier pushed the court to force Bahnhof to block Sci-Hub over infringement claims. As we noted in our post, many people we know cheered on this kind of "protest," but I wrote that we should not, as it appeared to be a clear net neutrality violation.I understand why many people celebrated this. Elsevier is a terrible, terrible company that gets free academic labor (often supported by taxpayer dollars) and then locks up the results of their research, takes the copyright, and only allows universities paying subscription fees that run in the 10s of thousands of dollars to get access. And then they whine about piracy? Especially against a site like Sci-Hub whose entire existence is premised on academics being able to better share knowledge? It's not hard to see who's the villain here, and its name starts with an Else and ends in a vier.And Bahnhof's "protest" felt karmic. Elsevier wants Bahnhof to block access to Sci-Hub? Well, fine, now Bahnhof will throw up a large (temporary, easily clicked through) "block" page on Elsevier's site (and the site of the court reviewing the case).However, I noted that we shouldn't celebrate this scenario just because we agreed with Bahnhof/Sci-Hub and believed Elsevier deserves to disappear into history. To make the point, we suggested that you change the scenario around, and imagine another ISP, upset that its workers were striking and blocking access to a union website? Because that's happened. Or, let's make it even more direct: there are a bunch of pro-net neutrality protest sites in the US right now. How would we feel if Verizon "took a stand" against those by popping up a page telling you why it disagreed any time you went to visit one of those pages?Some people said it wasn't a huge deal with Bahnhof, because the "block" was fake, and you could still click through to get to the real website. But, again, think about the Verizon/net neutrality protest page example above. Most people would be rightly furious that Verizon was inserting itself into their browsing decisions in such a manner. The same thing should apply here.And, so, it shouldn't be a huge surprise that Bahnhof is now facing a net neutrality investigation in Sweden over this stunt:

One of the things that's always coaxed a wry laugh from me is when there is some trademark dispute between two entities that results in a claim that customers will be confused between two products which, if that were true, would make the plaintiff's product sound really gross. Examples include that time Benihana suggested the public might eat a rap artist thinking it was their food, or when Makers Mark thought that people might somehow mistake its whiskey for tequila, which doesn't say much for its whiskey.Perhaps Monster Energy saw these and other past examples of this and was all, "Hold my beer.", because it filed a trademark opposition against Monster Dip, which makes industrial paint and coatings.

Philadelphia's asset forfeiture programs have subjected the city's residents to all sorts of abuse. Cops have taken cars away from their owners because a child, relative, or friend was arrested while driving the vehicle. Law enforcement has tried to take entire homes away from grandmothers because their kid sold $140-worth of marijuana to an undercover cop.A recent court settlement is reforming the program -- something the city's legislators have had zero success doing. Cash under the amount of $250 can no longer be forfeited. Seizures under $1000 need to be accompanied by an arrest and charges. The city's law enforcement has been flexing its creativity, using the new arrest requirement to seize vehicles as "evidence" and hoping the wheels of justice grind slowly enough it would be cheaper to relinquish ownership than pay to get the car out of the impound lot.We know cops directly profit from asset forfeiture, but when we say that we generally mean their agencies get new toys, vehicles, and other niceties by converting other people's property into discretionary spending. But there's an actual personal profit angle to forfeiture that hasn't been discussed. An investigation by PlanPhilly shows police officers have personally and directly benefited from property seizures tied to drug enforcement efforts. (h/t Wendy Cockcroft)

The innovator's dilemma, and the concept of disruptive innovation, is an idea that sits at the core of a lot of what we talk about here at Techdirt, and it has been embraced by different people in very different ways — though not always good ones. This week, for our final episode of 2018, we've got returning guest James Allworth joining the podcast to talk about the growth of disruptors into incumbents, and how they respond to the next wave of disruptors.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.

By now, of course, you're aware that the Verizon-owned Tumblr (which was bought by Yahoo, which was bought by Verizon and merged into "Oath" with AOL and other no longer relevant properties) has suddenly decided that nothing sexy is allowed on its servers. This took many by surprise because apparently a huge percentage of Tumblr was used by people to post somewhat racy content. Knowing that a bunch of content was about to disappear, the famed Archive Team sprung into action -- as they've done many times in the past. They set out to archive as much of the content on Tumblr that was set to be disappeared down the memory hole as possible... and it turns out that Verizon decided as a final "fuck you" to cut them off. Jason Scott, the mastermind behind the Archive Team announced over the weekend that Verizon appeared to be blocking their IPs:

In one of the more blatant attempts at censorship we've witnessed, a Minnesota politician tried to trademark the name of a politically-focused blog that often criticized her. Tax board member Carol Becker tried to take the name "Wedge LIVE!" away from its owner, John Edwards, who had been using the name for years to cover local politics. Becker first claimed she thought of the name herself, which she thought would be perfect for her yet-unrealized podcast covering… local politics.After receiving a bit of heat from Tony Webster, John Edwards, and Edward's supporters, Becker finally admitted she was attempting to take the name away from her critic, who had built his unregistered brand over the past several years. After more backlash, she decided to withdraw her trademark applications but warned she would try again in six months if Edwards didn't register them first.Four months later, it appears Edwards has prevailed. His post at Wedge LIVE! notes he has dropped his lawsuit against Becker seeking an injunction blocking her from filing for Wedge Live-related trademarks. Becker has agreed to drop her censorial pursuit of the name "Wedge LIVE," bringing an end to this ridiculous and particularly inept attempt to silence a critic.

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The entire Article 13 debate is a weird one. It appears that both the recording industry and the film industry are going for broke on this one. The lobbying on this started a few years back, with the rather clever but completely bogus idea of the "value gap."In case you haven't followed it, the idea of the "value gap" is that (1) YouTube pays less to musicians record labels than Spotify and Apple Music do for streams. (2) YouTube's general purpose video hosting platform is protected by intermediary protection laws (DMCA 512 in the US, Article 14 of the E-Commerce Directive in the EU) allowing users to upload whatever they want, and YouTube only has to takedown infringing works upon notice. (3) Services like Spotify and Apple Music license all their works. (4) The "lower rates" that YouTube pays must be the result of the safe harbor, and the difference in payments is the "value gap." Article 13, then, is supposed to "fix" the value gap by completely removing any notice-and-takedown safe harbor for copyright-covered works.Of course, almost all of this is bullshit. YouTube is used in very, very different ways from Spotify and Apple Music. While YouTube does have a competing music streaming service that is similar to Spotify/Apple Music, its payment rates there are equivalent. But on the general open platform, the rates are different. This is not because of the safe harbors, but because people use the platforms very, very differently. People use Spotify/Apple Music almost like radio -- to put on music that is constantly streaming playlists of songs. YouTube has all sorts of content, most of it not music, and while some may use it as a radio-style experience, that is fairly rare. And the recording industry has always received different rates based on different platforms and different kinds of usage.Meanwhile, Article 13 will do nothing to solve the "problem" that all the "value gap" people keep insisting is a problem. That's because Article 13 will basically require an upload filter that will spot infringing works and block them before they get on the site (there's more to it than that, but that's a basic approximation of what the law will require in practice). Basically the only company that has actually done this already... is YouTube! YouTube has its ContentID system, which it has spent over $100 million developing, and which can block uploads and pull down content.And... let's take a look at just how much damage such a system causes. Remember, YouTube has spent more on its filter than anyone else (by far) and it is considered easily the most sophisticated and advanced such filter.And it sucks.Last week, I saw musician Dan Bull (who wrote/performed the Techdirt podcast theme song) complaining that he had he had received a copyright claim on a video that was his own work, and from someone whose work was not in the video at all:

So a few months back, a group mysteriously calling itself "Protect Amerca's Wireless" popped up on the internet and began attacking the Sprint, T-Mobile merger. The campaign, which has all the usual signs of astroturf, takes particular aim at both companies' use of Huawei network hardware -- gear that the organization insists "could give countries like Saudi Arabia, China, Germany, and Japan direct access to our networks through the use of foreign-made networking equipment and billions of foreign money."In short, the mystery group is piggybacking on the recent hysteria surrounding Huawei to try and scuttle the merger, which is certainly a problematic merger, but largely for employment and competition reasons.Like most policy and political influence efforts, the campaign doesn't list its funders on its website, simply insisting it's an organic coalition of a few think tanks and some "foreign policy and national security professionals." I reached out to the group for more details on its financing, and was told (falsely) that the group couldn't tell me who finances it because as a 501(c)(3) it's prohibited by law from doing so.

The FBI has the power to collect massive amounts of data and communications during its investigations. This power periodically ingests NATSEC steroids, pumping the FBI's data stores full of stuff not relevant to the NSA's work, but possibly relevant to the FBI's crime-fighting duties.You would think the FBI would toss anything not relevant to an investigation. Just in terms of storage and haystack-sorting, it would only make sense to discard data/communications not needed for ongoing investigations. But you'd be wrong. The FBI holds on to everything it gets because you never know: the irrelevancies you hoovered up yesterday might be useful today.That's pretty much what happened to Aaron Swartz, according to documents published by Dell Cameron of Gizmodo.

Fresh off our post discussing the EU refusing the famous St. Andrews Links golf course a trademark for "St. Andrews" due to that term being primarily a geographical location, we have a similar situation in Europe centering around Oxford University's attempt to trademark "Oxford" for a whole swath of categories. And, just to make what might seem like a banal trademark opposition a little more spicy, much of this has to do with Brexit.

As we've noted in the past on articles discussing this topic, I recognize that people have very, very, very strong views on both Israel and the whole "BDS" movement, and (trust me) you're not going to convince anyone about the rightness or wrongness of those views in our comments. However, even if you support the Israeli government fully, and think the BDS movement is a sham, hopefully you can still agree that an American law criminalizing supporting the BDS movement is blatantly unconstitutional.It is true, if horrifying, that a bunch of states have passed such laws, all of which are quite clearly unconstitutional as well. Challenges to the state laws in Kansas and Arizona have already been (easily) successful. There are other legal challenges against the other laws, and they will almost certainly be tossed out as well.The impact of these laws is absolutely ridiculous as well, even barring Houston residents from receiving hurricane relief if they didn't sign a pledge promising not to boycott Israel. That's so plainly a First Amendment violation, it's amazing that so many states have followed suit. And it's depressing that Congress is looking to do the same:

The Inspector General for the Intelligence Community is finally implementing long-resisted whistleblower-related reforms. The IG has previously buried reports indicating whistleblowers were being greeted with retaliation for going through the proper channels. Despite this, government officials continue to claim the only whistleblowers they'll recognize are those who use the internal options -- options that allow the government to control the narrative and, in many cases, do as little as possible to address complaints.The Inspector General's office is one of the official channels. After turmoil that consumed most of last year -- including the ouster of Dan Meyer, the head of the IC's whistleblower outreach program -- a new Inspector General is in place. Michael Atkinson promised to get the IC IG's house in order after news surfaced of its burial of a damning whistleblower retaliation report earlier this year, but so far it's unclear what improvements have been made.What does appear to be in place is the IG office's participation in the Forever War on Whistleblowers. National security reporter Jenna McLaughlin noticed this disturbing development in the IG office's latest semiannual report [PDF]:

We've talked in the past about NY Times columnist Nick Kristof, who is a bit infamous for having something of a savior complex in his views. He is especially big on moral panics around sex trafficking, and was one of the most vocal proponents of FOSTA, despite not understanding what the law would do at all (spoiler alert: just as we predicted, and as Kristof insisted would not happen -- FOSTA has put more women at risk). When pushing for FOSTA, Kristof wrote the following:

So back in October, we noted how FCC Commissioner Mike O'Rielly attended an event where he falsely claimed that towns and cities that decide to build their own broadband networks (usually due to market failure) were somehow engaged in an "ominous" assault on free speech. The only "evidence" O'Rielly provided was that community ISPs include language in their terms of service preventing users from being hateful shits online, the same exact language you'll find in the TOS' from any number of private ISPs, from Comcast to AT&T.There's absolutely no evidence that any of the 750 towns and cities that have tinkered with this idea ever trampled anybody's free speech rights.Yet after being criticized by several press outlets (including this one), O'Rielly apparently decided his best bet would be to... double down on his false claims. In a new blog post over at the FCC website, O'Rielly again tries to insist that community broadband is a giant threat to free speech, but this time he attempts to vastly expand his argument in a bid to make it sound more logical. The tap dancing around his lack of evidence in his original claim is particularly amusing: