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Earlier this year, we wrote about a legal fight in New Hampshire, where patent trolling firm ATL, had sued a bunch of critics for defamation for calling them a patent troll. As we noted in February, this was an incredibly weak argument, as it's a statement of opinion. Thankfully, the New Hampshire Supreme Court got this one right and ruled that calling someone a patent troll is not defamatory.The ruling is a pretty straightforward, by-the-books ruling on a bogus defamation claim on an opinion statement. It cites all the usual cases -- mainly Phantom Touring -- to point out that "patent troll" is just an opinion that can't be defamatory, because there's no objective standard by which you would prove it true or false. People can (and do!) disagree over what constitutes a patent troll, and the court system is not there to settle that debate.

While the Trump administration's war on Huawei may be largely fueled by evidence optional protectionism, that certainly doesn't mean Huawei is an ethical company. Like any good telecom and networking giant, it can routinely be found helping governments engage in behavior that's less than, say, moral. For example a damning report emerged this week in the Wall Street Journal (paywall, here's a non-paywalled video report and a fairly decent alternative take) showcasing how Huawei technicians have helped African leaders intercept encrypted transmissions of their political opponents:

With the chief hurdle for infringement in trademark law being potential public confusion as to the source of a good or service, we sometimes toss that standard around as a blanket sort of thing. And, in trademark law, it kind of is just that binary. But the combination of the protectionist view of trademark law taking hold in America and the unfortunate habit of many people attempting to trademark their own names in one fashion or another, I wonder if the law might need to be updated in some ways. For example, we've seen several instances of intra-family trademark spats that arise from a person or business looking to trademark or simply use their own names. Any system of trademark enforcement that results in broadly disallowing someone to use their own name in the marketplace feels like a clear step too far, if only from a common sense perspective.Yet it keeps happening. The latest iteration of this involves a lawyer, George Sink Sr., suing his own son, George Sink Jr., for using his own name for his law firm and marketing material. The court overseeing the matter just this week issued a restraining order barring George Jr. from using his own name to advertise his firm.

As you'll recall, last year, the White House tried to remove CNN reporter Jim Acosta's press pass over a silly made up controversy claiming that he had "assaulted" an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House's action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges.Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem's press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump's silly social media troll summit back in July. Karem immediately said he'd sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely.

Last week, we featured part one of our discussion with lawyer Joshua de Larios-Heiman, about the details of the FCC's Facebook settlement, beyond the headline-grabbing fine. It was a long conversation that we cut off right in the middle, so be sure to listen to part one first and then come back for part two, in which we finish picking apart the settlement item by item.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.

As announced by the Copyright Office's General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song "Taurus" with their classic "Stairway to Heaven." We've discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach's Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome -- that Led Zeppelin didn't infringe on the Taurus composition -- seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.And here, the Copyright Office and the DOJ are on the right side again. The government's brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we've discussed, for musical works prior to 1973, you could only get a copyright in the "composition" and not the recording. One of the arguments in this case is that Randy Wolfe's estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968... so you don't just get to pretend that the composition copyright magically covers the sound recording.Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.And -- perhaps surprisingly -- the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what's left is fairly basic and not covered by copyright either:

The "law and order" administration is flexing its muscles. New Attorney General William Barr has been particularly vocal since his appointment, going after device encryption and the supposedly-dangerous "disrespect" for police.Barr's public statements -- the latter of which was delivered to a very receptive audience composed of police union reps -- have made it clear his DOJ is going to carry out Trump's back-the-blue mandates. Law enforcement officers will receive the federal government's seal of endless approval, as well as its benefit of a doubt when things go badly.Things go badly quite often. Cops are still killing more than 1,000 people (and nearly 10,000 dogs) every year, even as crime rates remain at historic lows. Barr's message to America was: comply, shut up, stop complaining. If you do somehow still feel your rights have been violated, you're welcome to lawyer up and attempt to sue your way past layers of immunity and multiple, ultra-flexible warrant exceptions.But while this administration talks a good game about respect for law and order, it certainly doesn't show the respect it believes is owed to the nation's law enforcement officers. Marcy Wheeler points out this hypocrisy to devastating effect in her post dissecting (and recasting) Barr's pro-police, anti-everyone else rant.Barr wants the public to comply immediately and without question when interacting with government employees empowered to enforce the law. But that's something he's not interested in doing himself. Replace "police" with entities empowered to police the Executive branch -- as Wheeler does here -- and Barr starts looking like the Great Unwashed he's complaining about. (Wheeler's alterations to Barr's original speech are in bold.)

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We've talked in the past about how Section (f) of the DMCA Section 512 is more or less a dead letter. 512(f) is the part that is supposed to stop bogus DMCA takedowns, by saying that you can be liable for "misrepresentations" in takedowns. In practice, though, courts never seem to award anything for bogus takedowns, meaning that it's a "free" way to censor anyone you'd like. Or worse. Earlier this year, we covered how some had taken the DMCA abuse process so far that they were using bogus YouTube DMCA takedowns as part of an extortion scheme. Literally, people would contact popular YouTubers (often those who made videos about Minecraft) and threaten to DMCA their videos if they didn't receive payment.It appears that YouTube was actually paying attention, and it has now filed a 512(f) claim against at least one of the people doing this, a guy in Omaha, Nebraska named Christopher Brady -- who probably is not having the best week. You can read the complaint here. It's pretty straightforward:

Earlier this year, Techdirt wrote about an intriguing tweet from the account of the Chancellery of the Prime Minister of Poland, which announced: "Tomorrow #Poland brings action against copyright directive to CJEU". The hashtags for the tweet made clear what Poland was worried about: "#Article13 #Article17". However, at that time, no details were forthcoming about this potentially important legal move. It was disappointing that nothing more has been heard about this unexpected development since then -- until now. A notice on the Official Journal of the European Union includes the following: "Case C-401/19: Action brought on 24 May 2019 -- Republic of Poland v European Parliament and Council of the European Union". The corresponding entry indicates that the Polish government believes that the upload filters required by Article 13/17 represent an "infringement of the right to freedom of expression and information" guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union:

G/O Media is the latest incarnation of Gizmodo Media, after it was sold by Univision to private equity firm Great Hill Partners earlier this year. Univision, of course, acquired "Gizmodo Media" out of the remnants of Gawker Media, after that company was forced into bankruptcy by a bogus lawsuit and a bad court ruling. There had been plenty of indications that the reporters and editors at G/O Media were chaffing under their new bosses (despite Great Hill putting media exec Jim Spanfeller in charge) as they very quickly laid off some of their best reporters, including Kashmir Hill.Last month there were reports that the staff were "enraged at the new CEO's 'insane' direction" and the details of all that flooded out -- in classic Gawker fashion -- on one of their own sites, Deadspin, which posted a truly incredible piece of journalism entitled This Is How Things Work Now At G/O Media. It's a really damning report. And it's long. It talked a lot about how the new bosses brought in a bunch of old friends (all white men) often replacing (or simply ignoring) women who were already in those jobs. It's full of choice quotes like the following:

We've talked ongoing about how ridiculous and aggressive many universities are becoming on trademark matters. Now colleges and universities do many, many annoying things, but their tendency towards trademark bullying certainly ranks up there near the top of the list. Not as high, of course, as Ohio State's neverending insistence that everyone call it "THE Ohio State University." The school likes to point out that the "the" (sigh) is actually part of the school's legal name, when the reality is that the school is simply being haughty and pedantic.Well, now these two worlds are colliding in what might just be the dumbest trademark application I've ever seen. You'll never guess what single word OSU wants to trademark.

Leaving aside the ridiculous and ignorant suggestions from some that no internet platforms should moderate anything, many, many people seem to believe (incorrectly) that the various internet companies refuse to moderate anything because it goes against their bottom lines. We've heard this from a number of politicians -- especially among those seeking to change Section 230, arguing (again, incorrectly) that because of Section 230 there's somehow no incentive to moderate content on their platforms.This is wrong on multiple levels. There is tremendous business, political, moral, and social pressure to moderate content on these platforms. When they get it wrong, they get criticized. They can lose users. And (importantly) they can lose advertisers, partners, customers and investors. There is demand for "healthy" platforms, and it's Section 230 that allows them to experiment and moderate accordingly. That's why it's notable to me that both Twitter and Facebook announced the removal of what appears to be a coordinated attempt to abuse both platforms to push disinformation against protesters in Hong Kong. Here's Facebook's announcement:

Originally, the Moviepass business model seemed like a semi-sensible idea, though we were quick to wonder if it would ever actually make a profit. Under the model, users paid $30 (eventually $10) a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. There were of course caveats: you could only buy a ticket per day, and could only buy one ticket per movie. It also prohibited users from viewing 3D, IMAX, or XD films. Still, the proposal was widely heralded by some as a savior for the traditional, brick and mortar, sticky floor movie industry.While it looked like the effort was going well, that appears to have been a ruse. A four month investigation by Business Insider (warning possible paywall) is well worth a read, documenting how the effort was bleeding money due to many of the issues Mike asked questions about back in 2012. The outfit went to great lengths to mislead investors that the effort was going well when it was really losing millions of dollars after blowing a fortune on trying to build technology that could easily and quickly geo-match users with theaters in their neighborhoods.A 2017 price drop to $10 per month resulted in all kinds of breezy press coverage, but all but ensured the project would never make money. In reality, the outfit was struggling so much it couldn't even keep pace with the demand for membership cards:

Late last week, the North Carolina State Court of Appeals released an astounding decision. Ignoring a number of precedential rulings finding otherwise, the court decided it was okay for state law enforcement officers to engage in retaliatory arrests, so long as they could find something to charge a citizen with.In this case, a car carrying a passenger who flipped the bird to a trooper engaged in a traffic stop was pulled over for… um… "disturbing the peace." Apparently, all hell was on the verge of breaking loose due to the enthusiastic bird-flipping in the direction of the officer. By the time the stop was over, the passenger was arrested for obstructing an officer. This was because the passenger refused to ID himself, which isn't actually a crime in North Carolina.The court looked at this retaliatory traffic stop and eventual arrest and said, yeah, I guess it's "reasonable" to assume a drive-by birding is a criminal act in the making, even if the supposed initiating factor (the finger) was protected expression.The dissenting opinion was the only reasonable thing about the decision. It pointed out one person's obscene gesture was highly unlikely to result in disturbed peace and that the traffic stop was nothing more than a fishing expedition to find something to charge the bird-flipping passenger with.The dissent may soon become the official opinion of the court. Owen Barcala points out on Twitter that the Appeals Court has withdrawn the opinion. Here's what's up at the court's website instead of its ridiculously harmful take on the First Amendment.

Earlier this year it was revealed that Presidential candidate Beto O'Rourke was a member of the Cult of the Dead Cow when he was a kid. To lots of folks in the tech world, this was a big deal. cDc was the original "hacking group." And while it doesn't sound like o'Rourke actually did that much hacking while in cDc, at the very least, it suggested that he was tech savvy and might actually understand the internet. Apparently not. On Friday, Beto revealed his plan to deal with gun violence -- and apparently, that plan is to take away Section 230 protections from large internet companies.If you're thinking, "wait, what does Section 230 have to do with gun violence?" well, you're correct. But apparently Beto hasn't figured that out yet. The plan, in true Beto fashion, is quite short on details. Here's what it says:

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So, we had just pointed out that the "fired ex-Googler whistleblower" whom everyone was pointing to last week as "proof" of "anti-conservative bias" at Google, didn't look so good when you got to see the details (which included statements that certainly read to be pretty supportive of white nationalists, rather than support for, say, the free market and lower taxes). You'd think that peddlers continuing to push this theory with the next person would take more time in the vetting process. But... of course, if it's Project Veritas we're talking about, it appears the only vetting they like to do is "can we spin this the way we want so that idiot suckers will buy it?" And that's what's happened.The usual folks in our own comments who insist there's anti-conservative bias at Google have been yelling at me for the past few days, claiming that I'm "ignoring" this proof because I just can't take it or something. Or... more accurately, because it's total garbage. First, let's talk about the "whistleblower." If you thought the last guy was bad, well, get a load of Zach Vorhies:

The NSA decided to abandon its phone data collection earlier this year, stating that it was having all sorts of technical issues collecting only the stuff it was asking for. In the good old days prior to the enactment of the USA Freedom Act, the NSA simply asked for everything. "Reasonable articulable suspicion" now guides the record collection -- something that appears to be too tricky for the NSA to wrap its collective collection powers around.It's not all the NSA's fault. The telcos now hold the records and only hand over what's asked for when the NSA approaches them. Easier said than done, apparently, as over-collection continues and the NSA seems unable to prevent collecting records it's not actually trying to correct.But it's also the NSA's fault because it's had plenty of time to get used to the new rules and develop better practices/software to sort through collected data. Of course, the NSA has also hinted the program is of limited usefulness and has seemed willing to give it up for years now, especially if the token sacrifice saves other, far more intrusive programs from the Congressional chopping block.Is it really shut down, though? That's been a tough question to answer. The NSA did recommend the program be shut down and claims it's just gathering dust at the moment, but there's been nothing definitive delivered to its oversight. Until now. Charlie Savage reports for the New York Times that there's finally official confirmation of the program's (possibly temporary) demise. Exiting Director of National Intelligence Dan Coats' unclassified letter makes it clear the NSA has shut down the program indefinitely.

This week, our first place winner on the insightful side is HegemonicDistortion with a response to the FBI's latest encryption fearmongering:

Five Years AgoThe fight for government transparency continued this week in 2014, with a judge giving the DOJ until the end of the month to submit a declassified FISA court opinion explaining the justifications for Section 215, the exposure of regular fraud and abuse by patent examiners that the USPTO tried to hide from the Inspector General, and new revelations from Ed Snowden including the fact that Syria's 2012 internet outage was the result of an NSA hack gone wrong, and that the agency abused its internet metadata program just like every other program. But the biggest battle was for the CIA torture report, which the intelligence community began warning would "inflame anti-US passions" in the Middle East if it was released.Ten Years AgoThis week in 2009, there was an earlier story of USPTO misbehavior in the form of bilking people out of money. The Encyclopedia Britannica yet again lost in an attempt to abuse a patent that it claimed covered basic GPS functionality, one judge blocked sales of Microsoft Word over patent infringement (in a ruling that had no hope of sticking) while another banned Real from selling RealDVD (sadly not so simple), and yet another overturned the ruling that allowed DVD jukeboxes. While the DOJ was defending the $80,000/song award in the Jammie Thomas lawsuit, a poet who tried to sue Oprah Winfrey for the even-more-insane sum of a trillion dollars saw his lawsuit thrown out — while another author was trying a similar approach to cash in on the success of Twilight.Fifteen Years AgoThis week in 2004, the number one culprit on the EFF's list of bogus patents was being wielded against universities and just about everyone else who streamed any kind of content online, while Microsoft was keeping the wheel turning with a newly granted patent on storing then automatically uploading data, and we talked about how innovation and IP hoarding don't mix. Meanwhile, Google was ramping up for its IPO (after giving some stock to Yahoo to settle outstanding legal disputes) and worrying its emails might be filtered as spam, while smaller investors tried to figure out if they could get in on the action and other companies quietly delayed their own IPOs to avoid getting lost in the Google hype.

There's this weird thing in the video game industry in terms of how the industry reacts to fans doing things with their games. On one side, you have publishers that strictly control what fans can do with their games, even going the legal threat route at times. Other publishers are more permissive with game IP and are then shocked at what fans manage to do with their games. Still other publishers proactively create tools within their games to allow fans to create wildly cool productions within the games and then celebrate those fans. And, of course, there are fans manipulating properties such as original soundtracks to create new music as an homage to the original score.There is a wide spectrum of what fans want to do to express their fandom with video games, in other words, and also a spectrum of ways publishers respond to these dedicated fans. The original Doom, for instance, was created nearly three decades ago, but an active modding community has kept the game relevant by building on that original work. In the case of System Shock 2, however, it turns out the game originally released in 1999 is essentially only playable on modern machines due to the dedication of one single mystery fan.

How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

Remember a year ago when lots of people were blaming WhatsApp for violence in India, and demanding that there needed to be new laws passed to deal with WhatsApp? Well, if the actual problem is societal, it's not much going to matter how you target a particular platform. Wired now has an article talking about another, super popular platform, TikTok, and arguing that it is "fuelling India's deadly hate speech epidemic." This, of course, is the same language that was used to discuss WhatsApp over the past few years.TikTok, as you may know, is the rapidly growing newish social media platform that is owned by the Chinese firm ByteDance. Of course, its rapid rise in popularity should already challenge the narrative that the big social media platforms -- Facebook (along with Instagram and WhatsApp), YouTube, and Twitter -- are so dominant that it's impossible for new entrants to make a play. But, even more importantly, it shows that if the problem everyone is debating is a societal one, blaming the service providers in the middle for not magically stopping societal problems is not helpful. These problems will just keep appearing on each successive platform.

The first documented case of the NYPD using reverse warrants to find criminal suspects has been revealed. It made its appearance in perhaps the most 2019 of cases: the trial of two members of the Proud Boys facing assault charges for allegedly attacking members of Antifa.Reverse warrants work this way: law enforcement agencies approach tech companies with geographic coordinates, asking for phone data for all phones within the geofenced area during a certain time frame. Using this data, law enforcement works its way backwards to probable cause, sifting through records to find what phones were in the area when the alleged crime was committed.Obviously, this is a highly-imperfect way to track down suspects. For one, GPS data collected by companies like Google isn't exactly precise. For another, "fenced-in" areas will always contain numerous people who aren't criminals or even suspects, but the data turns them all into suspects until investigators sort them out. The more heavily-trafficked an area is, the more likely the chance officers will pursue the wrong phones/people.This case was made a bit trickier by the victims' unwillingness to cooperate with the investigation. As George Joseph reports for Gothamist, the lack of victims to question nudged the NYPD towards deploying the legally-dubious tactic.

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We've spent the last year and a half or so pointing out that, while it may have been well-intentioned, there are all sorts of consequences -- whether intended or not -- to the EU's General Data Protection Regulation (GDPR), including giving more power to the giant internet companies (when many argued the GDPR was necessary to curb their power), censorship of media, and a way for the rich and famous to harass people. But, of course, some might argue that those are worthy trade-offs if it did a better job protecting people's privacy.About that... Last year, we pointed out that one consequence of the GDPR was that, in making it easy to "download" your data, it could open up serious privacy consequences for anyone who has their accounts hacked. In that story, we talked about someone having their Spotify account hacked, and having all the data downloaded -- a situation that might not be that impactful. However, last week, at Black Hat, James Pavur, a PhD student at Oxford, explained how he exploited the GDPR to access a ton of private info about his fiancee.

So a few years ago we wrote about Alex Nguyen, one of the only folks to file a formal net neutrality complaint (pdf) with the FCC. Before the rules were killed, users could file a free complaint, of which there were thousands. But if you wanted to actually have your complaint looked at by the FCC, you needed to pay $225, submit an ocean of paperwork, and kick off a long-train of procedural and legal fisticuffs most consumers simply didn't have time for. But Nguyen took the time, and filed a lengthy complaint outlining how Verizon Wireless had a long history of anti-competitive, restrictive behavior that harmed innovation and competition.With 300 citations across a 112-page document, Nguyen documented Verizon's ugly history, including banning mobile payment services that competed with Verizon's own payment offerings, blocking tablets from working on its network to promote its own tablets, and even banning devices from using GPS to -- you guessed it -- force subscribers to use the company's own subscription GPS services. Most of these efforts violated not just net neutrality, but the "Carterfone" conditions affixed to Verizon's spectrum to ensure the company would treat all devices and services fairly.Verizon's long history on this front is fairly indisputable, and the company has never been held seriously accountable for any of it. And while Nguyen hoped he'd be the one to help hold Verizon to account, the regulatory capture in the telecom sector had other ideas.Nguyen formally submitted his detailed complaint back while the net neutrality rules were still active (July of 2016), so the Pai FCC was mandated to take a look at the complaints. But instead of actually taking the only formal net neutrality complaint made seriously, the Pai FCC (surprise!) forgot completely about it for years. Last week the agency remembered it needed to at least respond, and (surprise!) broadly declared that the complaint lacked any compelling evidence whatsoever:

Back in October last year, Techdirt wrote about some unfortunate developments taking place in the African digital world. Governments across the continent are bringing in levies and taxes on Internet use, making it more expensive and thus harder for ordinary people to access the Internet at a time when the digital ecosystem in Africa is starting to take off in a big way. In February of this year, we reported on some evidence that the social media tax in Uganda was indeed causing fewer people there to use the Internet, and for the total value of mobile transactions to drop. Quartz Africa has a post about a new report from Brookings on the steep rise in taxes on mobiles and data in Kenya, and the harms it is likely to cause. Here's how things have gone from bad to worse:

Our posts on famed gaming giant Nintendo will likely give you the impression that the company has a very strange distaste for its own fans. Your brain will probably try to convince you that this doesn't make any sense, since Nintendo fans are what makes Nintendo money. Your brain is wrong. Nintendo has demonstrated over and over again that if forced to choose between maximum control over its intellectual property and allowing fans to do fan-things, it will choose control every single time.YouTube in particular tends to find itself in Nintendo's crosshairs, what with the site being the natural place for fans of Nintendo to share Nintendo-y things with other fans. It's worth noting again that, on matters of copyright at least, there's really no reason why Nintendo must issue takedowns for anything that even barely could be seen as infringing on its IP. Such is the case with the recent spate of takedowns the company issued against a YouTube channel which had the singular purpose of celebrating Nintendo game music.

President Donald Trump set the tone for his administration as soon as he took office. Less than a week after his inauguration, he issued this statement:

So, this is interesting. Every time we talk about alleged "anti-conservative" bias on various internet platforms, people who believe it's true (and who yell at us for daring to ask for evidence) tend to do two things: (1) cite Dennis Prager and his claims of YouTube's anti-conservative bias and (2) insist that there is no equivalent on the more liberal end of the spectrum that received similar treatment. We've discussed in great detail why both of those claims are laughably wrong, but we never quite expected the very same lawyers who filed Prager's failed lawsuit against YouTube -- the very same lawsuit that Prager himself just used on the pages of the Wall Street Journal to insist was proof of anti-conservative bias -- would now file a nearly identical complaint against YouTube... but on behalf of various LGBTQ+ YouTube channels.In both cases, the plaintiffs are represented by Peter Obstler and Eric George of the law firm Browne George Ross law firm. And this new lawsuit has basically as much chance of succeeding as Prager's lawsuit did. Of course, it strikes me as rather ironic that this very lawsuit seems to undermine the basic claim of the Prager lawsuit, that the "only" reason why Prager's videos could have been put into restricted mode were because of the conservative viewpoints they represented. Yet, here, in this lawsuit, there are lots of claims about how Google/YouTube are purposefully discriminating against the LGBTQ+ community.

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Over the last few months we've witnessed a veritable flood of misleading to simply false articles about internet companies showing up in mainstream sources. There were misleading articles in Vox and the Washington Post. And then, just recently, we saw not one but two NY Times pieces that went out of their way to misrepresent the law. And, then of course, there's the Wall Street Journal that has been misrepresenting Section 230 for ages. To date, the only one of these publications to run a serious correction (and to continue to help debunking misrepresentations) is the smallest of those listed above: Vox, who did some research and published a big mea culpa.This has gotten many in the tech industry to begin to wonder. It's one thing for (cross aisle) grandstanding politicians like Ted Cruz, Josh Hawley, Nancy Pelosi, and Richard Blumenthal to totally misrepresent the law. But when the mainstream media is doing so on a regular basis -- it's causing a lot of talk behind the scenes about whether this is a coordinated hit. Some, like the excellent reporter Anna Wiener, recently more or less dismissed this theory as being "mostly... a facile argument," though I think she mixes up two separate issues. First, it is absolutely true that many startup founders don't know how to deal with the press well, and get personally offended by bad press coverage. And, for those entrepreneurs: fuck 'em. They should grow up and learn what the press actually does, when done right -- which includes researching and debunking nonsense (and there's a ton of nonsense in Silicon Valley).But, that's a separate issue from whether or not there's a coordinated campaign to undermine the foundations of the internet by a few larger, legacy industries who have failed to adapt to a changing time. Indeed, we saw significant evidence of Hollywood's top lobbyists working behind the scenes (though, it occasionally slipped out publicly) to push for FOSTA, the first bill that significantly undermined Section 230.And there's plenty more evidence of legacy industries -- mainly legacy media and entertainment companies -- plotting to take down internet companies by making use of the news. Remember, during the Sony Pictures hack, that MPAA emails were leaked, revealing "Project Goliath," which was specifically a plan to damage Google through any means necessary -- and that included using a smear campaign placed in the Wall Street Journal and on the Today Show. In an email sent to an official in Mississippi Attorney General Jim Hood's office by then MPAA "director of external state government affairs" official (and former ICE official) Brian Cohen, Cohen admits the "proposed plan" is to place an anti-Google smear campaign:

So last week, you probably saw the leaked plan by the Trump administration to try and "fix" the nonexistent censorship of Conservatives on social media. According to the leak, a large part of the plan would involve having the FCC, which has no real authority in this area, police speech on platforms like Twitter and Facebook. Most legal experts I've spoken to say the plan is illegal and utterly nonsensical, and the FCC has no authority to do this under Section 230 or anywhere else. The order would also undermine most of the logic the Pai FCC used in its effort to repeal net neutrality.Oddly though, an FCC that has been very vocal on this subject when convenient has been oddly mute since the story broke, with none of the agency's three Republican Commissioners (Ajit Pai, Brendan Carr, or Mike O'Rielly) making so much as a peep about the terribleness of the latest Trump "plan."This kind of silence is uncharacteristic. O'Rielly, for example, was positively apoplectic recently when he proclaimed (falsely) that community broadband posed a dire threat to free speech. Carr has similarly expressed great disdain previously at the idea of government regulating speech on social media platforms, and hyperventilates over telecom sector free speech rights any time someone even faintly suggests giants like Comcast should be held accountable for decades of abysmal service:

The only person singing the praises of the Darien (CT) Police Department is the person who was ordered out of his own vehicle at gunpoint. New York Yankees GM Brian Cashman's onset of Stockholm Syndrome is one of the earliest in recorded history. (via Deadspin)To sum up, the cops here didn't do anything particularly wrong… except for one major aspect of the equation which would have prevented it from arriving at the point where Cashman needed to be walked backwards at gunpoint from his own vehicle to waiting officers.

Of all the battles we wage here, my personal frustration probably peaks on the topic of video games and real world violence. The amount of calories spent even having this discussion should go down as some kind of complete human failure. Study after study, never mind the input from actual law enforcement professionals, has demonstrated that the political talking points on violent games are complete bunk. I used to be fond of saying that the science on this topic was unsettled. At this point, the science is quite clear.Which means what we really need for that science to take hold with the public and end this stupid debate is to stop signaling that the debate isn't over. But when ESPN, with all of its popularity, decides to suspend a broadcast for an Apex Legends tournament because of the recent mass shootings, it's doing the opposite.

We've written a bunch of stories about Malibu Media, a copyright trolling operation. The company's founders, Colette Pelissier and Brigham Feld, like to claim that they're purveyors of "classy" pornography under the X-Art brand, but their business seems almost entirely focused on trolling practices. And its embrace of copyright trolling has resulted in some significant problems for the company over the years, as judges have very much caught on to the company's long history of sketchy practices.Apparently those sketchy practices may go beyond its copyright trolling, as two of Malibu Media's investors are now suing the company, claiming that they lent the company money when it was short on cash, in exchange for 50% of its "net recovery" from the trolling operations, and a "50% interest" in the copyright of the porn X-Art created. So, how'd that work out?

Attorney Larry Klayman is building himself quite the portfolio of high-profile losses. He's well on his way to seeing his lawsuit on behalf of Judge Roy Moore tossed by an irritated court. His lawsuit against social media companies for their banning of noted tire slash expert Laura Loomer has already been dismissed.Well on his way to having his law license suspended, Klayman has just seen another one of his ridiculous lawsuits tossed by a federal court. [h/t Adam Steinbaugh]This one claimed three publications -- including the New York Times -- besmirched the previously-unsullied reputation of (ex) Sheriff Joe Arpaio, preventing him from successfully running for Senator.Reciting the litany of terrible things Arpaio had done over his career, the New York Times pointed out Arpaio is pretty much defamation-proof. Even though the Times screwed up by calling him a convicted felon rather than a convicted misdemeanant, everything else written about him was true or protected opinion.The court points out Arpaio's Klayman-authored complaint is a skeleton partially garbed in useless invective. The decision [PDF] is concise, running only 11 pages, but it still provides enough space to completely dismantle the former sheriff's arguments.Even with the court siding with the plaintiff at this stage of the pleadings, there's not enough in Arpaio's complaint to push this past the NYT's motion to dismiss. When you come to court, you need to bring facts. That's not exactly Klayman's strong suit.

Revenge porn -- or, more accurately, "non-consensual" posting of naked photos -- is a real problem. Such postings are, rightly, seen as an invasion into people's private lives, and are (quite frequently) supported by really awful online services, run by scammers and jackasses who keep ending up in prison or in other trouble with the law. Most of time this is because existing laws can, and do, handle these situations. Most mainstream internet platforms now have very clear rules against non-consensual nudity and act quite quickly to take it down.However, there are continued efforts at passing laws to deal with this issue -- even if the attempts to do so mostly appear to be unconstitutional. We've also pointed out that these laws potentially criminalize behavior most people don't think of as "revenge porn," which could represent a real issue.And that brings us to the case of Whitney Cummings, a comedian/actress/producer, who is getting some attention this week after responding to a blackmail threat from someone, asking for money to not release a photo that apparently shows her exposed nipple (which she had accidentally, and very briefly, included in an Instagram story). Someone sent her a version of the photo and asked how much not to post it (in this screenshot the naughty bits are cropped, and even though she's now released it, I'm not linking to the image because, be better than that).In posting it, Cummings notes that "They all must think I’m way more famous than I am, but they also must think I’m way more easily intimidated than I am. If anyone is gonna make money or likes off my nipple, it’s gonna be me. So here it all is, you foolish dorks." Lots of people are, rightly, coming out to support her -- and are sending embarrassing pictures of themselves to her.She does claim that others are threatening to blackmail her by saying that they've got access to her iCloud, but notes:

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It's widely recognized that there's been a widespread backlash against the big tech companies over the last few years. Politicians on both sides of the aisle in the US have been calling for massive, sometimes crippling, regulations, fines or even antitrust breakups of the companies. Regulators around the globe have been fining the companies billions of dollars.Apparently all of that is news to Fox News contributor Juan Williams, who has taken to the august pages of The Hill to publish an op-ed calling for a backlash to big tech. Dude, it's already happening. Still, perhaps Williams has a new argument that is worth considering? I mean, there are legitimate points to be made about competition, privacy and the like. But... nope. Williams is mad that Wikileaks -- which, last I checked, is not considered a member of "big tech" -- leaked his cell phone number in a cache of John Podesta emails:

So for years we've been pointing out that Verizon's attempt to pivot from grumpy old telco to sexy new Millennial ad brand hasn't been going so well. Oddly, mashing together two failing 90s brands in AOL and Yahoo, and renaming the coagulated entity "Oath," didn't really impress many people. The massive Yahoo hack, a controversy surrounding Verizon snoopvertising, and the face plant by the company's aggressively hyped Go90 streaming service didn't really help.By late last year Verizon was forced to acknowledge that its Oath entity was effectively worthless. And this week, Verizon issued a statement saying that it would be selling Tumblr to WordPress owner Automattic after a rocky ownership stretch. Rather amusingly, Verizon tries to suggest that this was all part of some ingenious master plan:

We live in a weird moment right now where any piece -- no matter how misleading or unhinged -- seems to be able to find a publication place so long as it blames basically everything on the big internet companies and demands that they do more (or sometimes less) to stop bad stuff from happening online. There are still a few brave souls out there pointing out how problematic all of this might be, and thankfully the EFF's executive director, Cindy Cohn, has taken to the pages of Wired to explain why asking the internet to stifle speech online could backfire in a really big way. She notes that it's a reasonable emotional reaction to mass murdering assholes posting screeds on 8chan to seek to shut the site down entirely, but that comes with serious costs as well.

For some time now we've discussed in a series of posts the trademark fallout that has hit the craft brewing industry. With the explosion of this industry throughout the world, the once-congenial attitude breweries had towards intellectual property concerns has slipped away, replaced by both aggression when it comes to protecting IP and the threat of aggressive action from those outside the industry, given the amount of money being made in brewing. It's been sad to see and it has frankly led to some of the silliest IP disputes I've ever seen.As in any other industry, however, the truly frustrating stories when it comes to trademark disputes in the brewing business involve those outside the industry initiating conflict where it doesn't belong. The most recent example of this is Boss Brewing having to change the name of a couple of its beers after being bullied by Hugo Boss, the upscale clothier.

Last week we highlighted the ongoing dispute between academic publishing giant Elsevier and the University of California (UC) system. Earlier this year, UC cancelled its contract with Elsevier, after the publishing giant -- which gets nearly all of its content and labor for free, but charges insane prices for what is often publicly funded research -- refused to lower prices or to work with the UC system on moving to an open access approach. Last week, we covered how Elsevier had emailed a bunch of UC folks with what appeared to be outright lies about the status of negotiations between the two organizations, and UC hit back with some facts to debunk Elsevier.Perhaps Elsevier is getting antsy because a bunch of UC scientists have sent an open letter to Elsevier, saying they will no longer do editorial work for any Elsevier publications until this dispute gets worked out.

Ever since the FCC announced its proposed settlement with Facebook, the headlines have focused on the largest-ever privacy fine that came with it — but few people paid attention to the many, many important details. This week, we've got the first half of a two-part podcast with lawyer Joshua de Larios-Heiman, who helps us go through the entire settlement from start to finish, and pick apart what it means.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.

Another day, another major publication peddling complete and utter bullshit about big internet platforms. The latest is Dennis Prager, whose Wall Street Journal op-ed, Don't Let Google Get Away With Censorship (possibly paywalled) is so utterly full of wrong that it should maybe be a canonical example of how to bloviate wrongness. The entire premise is bullshit, with most of it focusing on the made up claim that YouTube is somehow censoring Prager's videos because of his "conservative" viewpoints. We've debunked Prager's arguments in great detail before, but apparently we need to do so again.As a quick summary: a very small percentage (less than 12%) of Prager's videos are put into "restricted" mode. This does not demonetize them. It only means that the very small percentage of people who have opted-in to set up YouTube to not return videos that are inappropriate for children (which is less than 1.5% of YouTube's users) don't see that small percentage of YouTube videos in their search results. This includes videos with titles like: "Born to Hate Jews" and "Are 1 in 5 Women Raped at College?" which "includes an animated depiction of a nearly naked man lunging at a group of women." You might recognize why people at YouTube thought this might not be appropriate for children. But Prager insists that it's evidence of an anti-conservative bias.Also, as we pointed out, many YouTube channels that come from sources that most would consider to be much more "liberal" find a much higher percentage of their videos put into the same restricted mode. This includes Stephen Colbert (13%), The Huffington Post (14%), The History Channel (?!?) (24%), Vox (28%), Sam Seder (36%), Buzzfeed, (40%), Democracy Now (46%), Last Week Tonight (50%), The Daily Show (55%) and The Young Turks at a whopping 71%. To argue that having fewer than 12% of your videos put into this restricted mode is evidence of anti-conservative censorship is pretty ridiculous, but this is Dennis Prager we're talking about, and he's up to the task:

A high-profile act of violence has brought FBI complaints about device encryption to the surface again. This has been a long-running theme with the agency, one amplified recently by domestic surveillance advocate/Attorney General William Barr. Barr claimed encryption was creating a more dangerous world for everyone. Barr's claims echoed those of successive FBI directors. Both Barr and Wray continue to talk about device encryption despite having (so far) refused to update the number of encrypted devices the FBI can't access.As Barr warned in his rant against encryption, all it would take is one major attack to sway public opinion to the government's side.

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