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Last week we wrote about the NY Times having to issue a whopper of a correction on a giant front page of the Business Section, totally false claim, saying that Section 230 "protected hate speech" online -- which they later had to edit to note that it was actually the 1st Amendment that protected such speech (and the article leaves out that it's actually Section 230 that allows websites to remove hate speech). Coming from a paper that, just weeks earlier, had published an editorial mocking politicians for getting 230 wrong, this was kind of embarrassing.Even more embarrassing, though, was the day after the NY Times had to totally correct that false article, they ran another blatantly wrong op-ed about Section 230, this one published by Jonathan Taplin, who two years previously had published another op-ed at the NY Times that completely fabricated a bunch of blatant lies about how YouTube and Google operate. You would think that would be enough for the NY Times to maybe think twice about having him publish another op-ed, especially about Section 230 a day after the paper got called out for getting the Constitution wrong. But, nope. Taplin got to publish his anti-Section 230 op ed with no problems, until the NY Times felt the need to issue a correction on that one too.

As the FCC has rushed to kiss up to telecom giants like AT&T and Verizon, it has enjoyed a fairly casual relationship with both the truth and the law. The agency's repeal of net neutrality, for example, was hinged largely on the idea that the modest rules devastated sector investment, something that data repeatedly disproved. Other Pai FCC policies have equally leaned on flimsy and manufactured data plucked directly from the mouths of sector lobbyists. And while this casual relationship to the truth may play well to Pai's allies, just making things up doesn't work quite as well when it comes time to defend these policies in the courts.Case in point: earlier this year the FCC tried to take away a modest $25 per month broadband stipend for tribal residents (you know, for freedom or whatever), while also banning smaller companies from receiving broadband subsidies (giants like AT&T and Verizon surely appreciated that). But while Pai's office claimed screwing tribal residents would somehow massively spur broadband deployment, the courts shot that ruling down for being "arbitrary and capricious," noting that Pai's FCC failed completely to follow the law or to justify its policy with actual facts.Fast forward to last week, and the FCC found itself again slapped down for playing fast and loose with factual reality. This time, the courts shot down a sizeable chunk of a recent proposal that gutted most state and local authority over the placement of cellular towers (and so-called "small cells," which are smaller antenna usually affixed to city street lights to extend wireless coverage). While the FCC claimed that doing so would speed up broadband deployment, a coalition of local leaders stated the plan was little more than a giveaway to giants like AT&T and Verizon, who don't like having to deal with pesky things like environmental reviews for cell tower placement.And (and tell me if you're noticing a trend here), the courts were quick to point out (pdf) that the Pai FCC proposal (again) ignored the law and didn't justify the plan with, you know, facts.Here's the court's comment on the FCC's attempt to exclude towns and cities from having a say where small cells are placed on city infrastructure, for example:

While in theory the UK is supposed to be leaving the EU soon, it's still technically a part of it, and now appears to be implementing the AVMSD (Audiovisual Media Services Directive) which was agreed to last year. One section of the agreement talks about "protection of minors" and like pretty much all "think of the children" type regulations, it's full of moral panics and impossible demands. While the Directive looks like it was designed for professionally broadcast content, apparently the UK has determined that it should apply to all online video, and the UK Parliament "quietly approved" a plan to give its media regulatory body, Ofcom, the power to fine social media companies up to 5% of their revenue if they can't magically make stuff that "might seriously impair" minors disappear from the internet.Of course, content that "might seriously impair" minors seems widely open to interpretation -- which almost certainly means over-censorship. But, it appears that Ofcom doesn't think it's a big deal at all:

DC Comics, the company behind some of our most beloved superheroes, has built a reputation for itself for playing the supervillain when it comes to intellectual property disputes. Chiefly at issue tends to be trademark law, which DC views as some kind of overarching right for it to not allow any other entity to hold a trademark that even remotely overlaps with its own established marks. DC has taken this to absurd levels, opposing trademark applications that couldn't possibly be confused with its own properties, even as many of its marks are very, very well known.This continues to the present. Most recently, DC has decided to oppose the trademark application for a group founded by MIT's Joy Buolamwini to spotlight the negative consequences of certain technologies, which she dubbed The Algorithmic Justice League.

Disclaimer: I did a teeny bit of legal work on a teeny part of Aereo's defense against the litigation onslaught seeking to obliterate it. But that's not why I think the Supreme Court's decision enabling that obliteration was terrible. On the contrary, it's why I wanted to work on the defense at all, because it was always apparent that trying to use copyright to crush Aereo was a terrible idea that would have terrible consequences. And time has, of course, born this prediction out.It had never made sense why all these TV stations would be suing Aereo in the first place. After all, isn't the thing that TV stations always want a larger viewership? With a larger viewership they can charge more for ads and make more money. So a service that helps them get that larger viewership (and at no cost to themselves) seems like something they should actually be glad to have. In any case, it was certainly quite odd to see them resent something that helped connect them with bigger audiences beyond what their broadcast signal could manage.And it made even less sense for a public television station like WNET to be part of any of these lawsuits. Commercial profit was never supposed to be its goal. Instead, pledge drive after pledge drive has always begged the public for the funds necessary to show its programming. Yet there it was, now trying to eradicate a service that helped people actually watch that programming. Which necessarily prompts the question of why anyone should ever bother to give money to WNET ever again if it was so bound and determined to limit the number of people who could benefit from it.Anyway, while the fight against Aereo made no sense, and the US Supreme Court decision killing it made even less, the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength. And this pointless and artificial limitation has had a cost.Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.Aereo helped build connections between these places by overcoming the barriers imposed by distance. Instead of people only being able to see the broadcasts they could receive on their own antennas, it gave them a window into other communities by allowing them to essentially rent antennas in these other places and experience the broadcasts aimed for people there. Certainly if they'd rented an entire house in these other places there would have been no issue with them using its antenna to watch these broadcasts. So it hardly follows that it should be illegal if they simply saved the enormous expense of moving to that other place and instead only rented the antenna. (Which, despite the Supreme Court's technical misunderstanding about what Aereo did, is exactly what Aereo – and, for the past year or so, now Locast – actually did.)Especially not when, as described above, it would have been good for those stations. And especially not when it also would have been good for the nation. It does us no good to remain little regional enclaves unable to find common ground between each other. Sharing in each other's broadcast media would go a long way to bridging those geographically-enforced cultural gaps. Indeed, it would seem to vindicate the very goals of copyright, to promote the progress of arts and sciences, to ensure that local insight could be efficiently exchanged among these regions. Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since.Perhaps things can be different with Locast. While too new to have been able to have had as much impact on national political culture as a mature service would have had by now, since last year it has tried to thread the confusing needle the Supreme Court set out for these sorts of antenna-rental services. As the courts now stand to review the legal questions they raise again, one can only hope the courts better understand this time around the public interest in knowledge exchange that's at stake, which copyright law is supposed to advance, not smother.

When we recently wrote about the myth of anti-conservative bias at the various internet platforms, we got a lot of angry responses from people who insist (very loudly, often with lots of insults and anger, but rarely with any facts or data) that we're full of shit. We'd be open to believing it if there was any actual support for these claims. But none is ever forthcoming. Indeed, amusingly, some people pointed out that a recent WSJ article about an alleged fired "conservative" engineer at Google, described as a "whistleblower," was more "proof" that the company has it in for conservatives. Tucker Carlson even had the engineer, Kevin Cernekee, on his show last week to continue to feed the narrative.And, of course, other Fox News characters, such as Lou Dobbs, played up Cernekee's claims as well, which even got President Trump to retweet Dobb's segment about Cernekee as "proof" that Google is trying to influence the 2020 election.However, as we've pointed out concerning most of the "conservatives" who have had content removed or been banned from social media platforms (as is true in similar situations with liberals and other non-conservatives) there is almost always more to the story -- and that "more" is often that these people are not banned or fired or otherwise held back because of their general political views, but because of something much worse. And, in the case of Cernekee, people finally realized that maybe it wasn't that he was a conservative, but that he wanted to fundraise in support of one of the US's most well known white supremacists, Richard Spencer.

For doing the company the favor of informing it about a leaky AWS bucket exposing sensitive counseling records of 300,000 Indian employees, the company -- 1to1Help -- has filed a criminal complaint against the person who brought the situation to its attention.In the middle of May, a researcher came across the exposed data and informed Dissent Doe of DataBreaches.net about their findings. After verifying the leak, Dissent Doe began trying to contact 1to1Help to inform it of the leak. No response was received until over a month later, possibly prompted by Dissent Doe contacting a large American company that was a customer of 1to1Help.The slow response was blamed on internal email routing. Here's some of what was seen in the exposed bucket:

Lee Fang of The Intercept has dug into the cache of internal license plate reader manufacturer documents dumped on the web earlier this year. In addition to hundreds of images of drivers and their vehicles passing through border checkpoints, the files also contained emails from Perceptics (the LPR manufacturer targeted by hackers) to Congressional reps, reminding them to hit their marks at the next Congressional hearing.

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It hasn't taken long for Trump's and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin to quickly devolve into farce. The state originally promised Taiwan-based Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.Reports last fall detailed the ever-shrinking nature of the deal, and how Foxconn was using nonsense to justify its failure to follow through, claiming it was building an "AI 8K+5G ecosystem" in the state to somehow make everything better. But the buildings Foxconn have purchased remain largely empty and the lion's share of the company's promises unfulfilled, despite mounting taxpayer cost.Fast forward to this week, when an analysis of the cost impact of the downsized project basically concluded what most knew all along: the deal was never going to work as structured, and throwing taxpayer funds at Foxconn isn't likely to pay dividends. And while there's still the possibility some jobs get created (assuming the company actually builds anything of note), the math still doesn't add up:

As soon as the Capital One breach was announced, you knew the lawsuits would follow. Handling the sensitive info of millions of people carelessly is guaranteed to net the handler a class-action lawsuit or two, but this one -- filed by law firm Tycko & Zavareeri -- adds a new twist.

As soon as the Capital One breach was announced, you knew the lawsuits would follow. Handling the sensitive info of millions of people carelessly is guaranteed to net the handler a class-action lawsuit or two, but this one -- filed by law firm Tycko & Zavareeri -- adds a new twist.

Our first place winner on the insightful side this week is an anonymous commenter who provided a thorough, piece-by-piece reply to a comment about alternatives to Section 230:

Five Years AgoThis week in 2014, while President Obama was defending the CIA's increasingly exposed use of torture on the basis that they had a "tough job", James Clapper was defending the redactions in the torture report and calling them "minimal" — but Senators were calling it "incomprehensible", because even 15% redaction can hide all the critical details.Meanwhile, comic artist Randy Queen was giving a crash course in DMCA abuse, using takedowns to censor blogs that were critical of his work, then claiming that posts criticizing this were defamatory, then doubling down yet again by trying to DMCA the posts about his DMCA abuse.Ten Years AgoThis week in 2009, a Washington Post writer started an online journalism dust-up when he complained about Gawker "ripping off" his reporting with a blog post discussing and heavily linking to one of his articles. Other bloggers quickly pointed out that, in fact, the mainstream press "rips off" bloggers constantly, spurring more people to dig in and illustrate the entitlement mentality driving big media's complaints about blogs, and finally the suggestion that perhaps they should run their own blogs about their own reporting if they are so upset. Amidst this, the Associated Press was still digging in on their plan to DRM the news, with their text licensing calculator that would gladly charge you for any text whether it came from the AP or not, and ironically leveraging Creative Commons licensing language for their ill-fated DRM tech. We suggested the agency would be better off finding other services to offer newspapers, while competitor Reuters stepped up defended linking, excerpting and sharing.Also this week in 2009, we published a long rebuttal to the RIAA's factually-challenged boasts about the Joel Tenenbaum verdict.Fifteen Years AgoThis week in 2004, long before Joel Tenenbaum, we were wondering why the RIAA gets to hold parents responsible for their kids' downloading. The US was using trade negotiations to export the DMCA and software patents to Australia, as it likes to do, Hollywood succeeded in driving a DVD backup software company out of business, and for no particular reason the FCC happily voted that VoIP systems should be required to have wiretap backdoors for law enforcement — a fitting week for Tim Wu to write a post exploring how different regulatory schemes create a "copyright gap" that impacts the telephony and content industries in vastly different ways. We also got an important appeals court ruling that found websites devoted to criticizing companies are not commercial speech and thus do not constitute trademark infringement.

One of the more subtle assaults on net neutrality has been the slow but steady introduction of arbitrary, often unnecessary restrictions mobile carriers will then charge you to get around. Sprint, for example, has toyed with plans that throttle all video, music, and games unless you pay extra. Verizon has also banned 4K video from its network unless you pay more for 5G (which isn't widely available). The company also now throttles all video on its "unlimited" data plans, charging consumers even more if they want to view content in HD as the originating service intended.Comcast has now followed Verizon's lead, and its new wireless service will also now ban HD videoon its unlimited data plans unless you pony up an adidtional $20 per month. The company technically began throttling all video to 480p on its wireless network a week ago, but only just last week announced that users would now be charged more if they actually wanted to watch video in HD:

Three of the five warrants the San Francisco Police Department obtained to search journalist/stringer Bryan Carmody's home, office, and phones have been tossed by the judges who issued them.The initial warrant, issued in February by Judge Rochelle East was the first be declared invalid. Judge East said the warrant application was misleading, omitting information that would have made it clear Carmody was a journalist and protected by the state's shield law. This warrant -- seeking access to phone call and text message records -- has been tossed. Since everything else in the Carmody investigation stems from this illegal search, the rest of the warrants are destined for the dustbin.Judge East's findings have led to two more judges tossing warrants they issued. It also has led -- at least in Judge Victor Hwang's case -- to the judge possibly reading the warrant for the first time. This statement from David Snyder of the First Amendment Coalition says the warrant Judge Hwang tossed contained information about Carmody that made it clear the SFPD was targeting a journalist.

You may recall that, back in March, we were excited to hear the news that the University of California had cancelled its Elsevier subscription, after Elsevier was unwilling to support UC's goal of universal open access to all of its research (while simultaneously cutting back on the insane costs that Elsevier charged). Apparently the fight between Elsevier and UC has continued, and it's getting nasty. Recently, UC put out a blog post that accused Elsevier of playing dirty and making a bunch of bullshit claims about UC and the negotiations:

Despite obvious red flags regarding reduced competition and massive layoffs, both the FCC and DOJ have rushed to support T-Mobile's $26 billion merger with Sprint. We've noted that the math (and history) are very clear on this front: the reduction of major telecom competitors uniformly results in much higher consumer prices as the incentive to compete in direct price competition is hugely reduced. It's a major reason why you haven't seen AT&T and Verizon (both lobbying juggernauts) criticizing the merger. History's also clear: such mergers inevitably result in huge layoffs as redundancies are eliminated.And while the FCC and DOJ (both now run by former telecom executives, it bears repeating) are tripping over themselves to sign off on the merger, a growing coalition of states has other plans. 10 states have sued to block the deal, quite correctly noting that mindless M&As are one of the biggest reasons we all hate broadband providers like AT&T and Comcast so much. Such deals help just two class of folks: investors and executives. Everybody else pays a steep price.While the DOJ had approached numerous states in the hopes it could convince them to drop the lawsuit, that's not going all that well. Republican Texas AG Ken Paxton has now done the complete opposite, and in a statement announced that Texas will be joining the suit instead:

The San Francisco Police Department's "investigation" of journalist Bryan Carmody has just about finished collapsing completely. The stupid "investigation" -- supposedly initiated to figure out which cop leaked sensitive documents to the stringer -- has been the equivalent of a claymore mine deployed in reverse. Several claymore mines, to be more precise. With each iteration of the news cycle, the SFPD has sustained consecutive, concussive blasts to the face.What culminated in a raid of Carmody's house began with a warrant seeking phone call and messaging data covering two days in February. That warrant has already been unsealed and quashed, with the judge pointing out the swearing officer did everything he could to avoid telling the court the SFPD was looking to put a journalist under surveillance.This warrant preceded everything else. Since that was the foundation for search warrants targeting Carmody's home and the multiple devices SFPD officers seized from there, the rest of the investigation -- along with any charges the SFPD thought it might get away with pressing -- is disintegrating. Nicholas Iovino reports for Courthouse News Service that two more warrants the SFPD obtained have been tossed by judges.

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We live in a post Blurred Lines world, in which songs that merely pay homage to earlier songs, or that have a similar "groove" but don't actually copy anything are deemed infringing. The latest such case is the Katy Perry case, in which a jury found that she had infringed on a work by an artist named Flame, whose track "Joyful Noise" has a few similarities to Perry's "Dark Horse." Of course, "some similarities" is not supposed to be infringing. Especially when the similarities are so basic and fundamental to lots of different songs, including many that pre-date "Joyful Noise."

Since the White House is convinced social media companies are kicking conservatives off left and (mostly) right, it has decided to do something about it. What this "something" is remains about as vague as the accusations.Once you remove a handful of grifters and Nazi fans from the list, you're left with not that much to get upset about. But the few who fervently believe this is happening make a lot of noise and have the ears of powerful people, so stuff -- vague stuff -- is being set in motion while the First Amendment is set aside.A leaked copy of what was supposedly a draft executive order on social media bias appeared late last year. If the leak was legitimate, the White House's proposal would not have been Constitutional. It would have used the pretense of bias to allow the federal government to directly regulate speech on social media platforms. Here's Mike Masnick's take on the draft order:

The DOJ this week announced that AT&T employees have been paid more than $1 million in bribes to unlock millions of smartphones, and to install malware and unauthorized hardware on the company's network. According to the full DOJ complaint (pdf), Muhammad Fahd, a 34-year-old man from Pakistan and a (presumed dead) co-conspirator, Ghulam Jiwani, paid off AT&T employees at the company's Mobility Customer Care call center in Bothell, Washington. In return, from April 2012 until September 2017, the two men unlocked iPhones so they could be used on another carrier's network.Worse, the bribed employees happily installed malware and keyloggers providing broad access to the AT&T network. That includes keyloggers intended to gather data on AT&T's internal systems and processes:

For years now many hardware vendors have failed utterly to implement even basic security protections on most consumer-grade routers. D-Link, for example, just settled with the FTC after being sued for shipping routers with numerous vulnerabilities and default username/password combinations, despite advertising its products as "easy to secure" and replete with "advanced network security." Asus was similarly dinged by the FTC for shipping gear with numerous flaws and easily-guessed default username and password combinations.As such, it's not too surprising to see a new Consumer Reports study that found that a large number of mainstream residential routers lack even rudimentary security protections. 11 of the 26 major router brands examined by the organization came with flimsy password protection. 20 of the routers let users only change the password, but not the username of web-based router management clients. 20 of the routers also failed to protect users from repeated failed password login attempts, now commonplace on most apps, phones, and other services.Two thirds of the routers tested came with UDP enabled by default:

For over a year now, we've been discussing a worrying trend in Japan, where the government is looking to severely ramp up its anti-piracy efforts. The worry lies in the implications of these various proposed programs, including the censorship of internet sites supposedly used for piracy, the criminalization of pirating content, and how all of this is going to impact the public. One of the largest barriers to doing any of these expansions to copyright law is the Japanese constitution and legislation, which are fairly restrictive on matters of both censorship and the invasion of privacy. How the government thought it was going to route around those provisions is anyone's guess.But it seems there is confidence that it can do so, as every new proposal coming out looks to in some way violate Japan's constitution. The latest involves putting a system in place that would delivery popup warnings to anyone visiting a site that is deemed to be a "pirate site."

You'd think an entity with the name "New York Police Department" would at least have some passing respect for the law. But the more time you spend examining the NYPD, the more you find it acts in opposition of almost every law meant to control it. Sure, it's more than willing to kill you over unlicensed cigarette sales, but it can't seem to hold any of its own accountable for their multiple violations.Anything meant to bring a modicum of accountability to the agency is met with a shrug of official indifference. The only thing that's been proven to effect change in the department is orders from federal judges, and even these are greeted with foot-dragging and brass-enabled resistance.Adding to the annals of the PD's refusal to play by rules it doesn't like is this report from The Marshall Project. The NYPD and city prosecutors are using supposedly expunged arrests to push for plea deals, longer sentences, and the denial of bail.In one case examined by The Marshall Project, a man arrested for being in a vehicle that also contained an unlicensed handgun assumed he'd get cited and fined because of his lack of a criminal record. Instead, the man (referred to only as J.J.) watched as the city prosecutor produced printouts of expunged charges from back in the PD's stop-and-frisk heyday to argue for a prison sentence. J.J. had never been convicted of a crime, but the city was presenting records that should have been removed from the system to argue he was a career criminal.J.J. is now suing the city and the NYPD for its refusal to follow state laws on the handling and use of expunged criminal records.

To be part of your local law enforcement's surveillance network, all you need is a little tech from Amazon. Amazon's Ring doorbell/camera is being handed out to cops, who can then give them to citizens with the implication the recipients of this corporate/government largesse will deliver recordings upon request.Every Ring installed is another contributor to this ad hoc network of cameras -- something both cops and Amazon have access to. Amazon is looking to corner two markets at one time, roping in both the public and private sectors with an eye on dominating both. The added bonus -- at least as far as Amazon is concerned -- is its Neighbors app. Neighbors allows people to report suspicious things to other neighbors, as well as law enforcement. Unsurprisingly, early adopters have tended to report the existence of brown people in their neighborhoods more often than anything else.The whole process is guided by Amazon's heavy hand. Government agencies participating in the Ring handouts are given talking points, pre-written press releases, and contractual obligations to promote the product they're giving away. Recently-obtained documents show Amazon has even crafted scripts for police officers and press relations staff to use when questioned by citizens.But there's even more to this partnership than everything you see above. Lucas Ropek of GovTech reports cops have an Amazon-enabled workaround if Ring recipients aren't willing to turn over footage without a warrant.

Academic publishing giant Elsevier really, really, really hates Sci-Hub, the site that offers up access to lots of academic research. Elsevier has sued the site directly and tried many times to get it blocked (which, to date, seems to have only helped it get more attention). Last week, Elsevier got all legal-threaty against Citationsy, a site that helps scholars create citations. Elsevier claimed that Citationsy was infringing its copyright by linking to Sci-Hub.

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Hey, SCOTUS says it's OK so it must be OK. Via Greg Doucette comes another WTF decision [PDF] -- one that gives North Carolina cops the green light to engage in retaliatory arrests over protected speech.It's not like there's no case law to work with. The Eighth Circuit Appeals Court denied immunity to an officer who arrested someone for shouting "Fuck you!" at him as they drove by. Other federal courts have come to the same conclusion: flipping the bird/dropping f-bombs in the direction of police officers is protected speech and cannot form the basis for traffic stops or arrests.In the state court of appeals, North Carolina judges have come to pretty much the same conclusion our nation's top court did: so long as an officer can imagine a crime has been committed, they're allowed to detain and arrest people who have offended them with their words and/or hand gestures.And what a glorious hand gesture it must have been. Even the court's dry recounting of the event manages to paint a vivid picture of the event that kicked off this debacle.

It's been a bit of a roller coaster ride for Kangaroo Manufacturing over the past few weeks. The company -- which has admitted that it looks for popular items that are being sold on Amazon, and then develops competing products -- won its lawsuit a few weeks back, in which it was accused of copyright infringement for copying a floating duck pool float. In that case, the court determined that the ducks in question were not similar enough to be infringing. However, in another case, involving banana costumes, Kangaroo was not so lucky. Back in April we wrote about the appeals court hearing in that case, in which the judges joked that they were disappointed none of the lawyers showed up in the costume. However, in the end, the 3rd Circuit appeals court upheld the lower court's injunction that the two banana costumes were too similar and that Kangaroo's violated the copyright of Rasta Imposta (ht to Bill Donahue for spotting this one).There were two keys to this particular ruling. The first was the Supreme Court's terrible ruling in the Star Athletica case upturning decades of copyright law saying that you can't get a copyright on "useful articles," (which many people believed included clothing). In Star Athletica, the Supreme Court effectively changed that, saying that if there's artwork within the clothing, that could be viewed separately from the clothing, it's a different story. That's why there is suddenly a bunch of these kinds of copyright lawsuits. Here, the judges feel that Star Athletica means that if two banana costumes are too close, well, that's infringement.

Looks like there are no more untapped markets for facial recognition tech.

What is it about companies leaving consumer data publicly exposed on an Amazon cloud server? Verizon made headlines after one of its customer service vendors left the personal data of around 6 million consumers just sitting on an Amazon server without adequate password protection. A GOP data analytics firm was also recently soundly ridiculed after it left the personal data of around 198 million citizens (read: most of you) similarly just sitting on an Amazon server without protection. Time Warner Cable also recently left 4 million user records sitting in an openly-accessible Amazon bucket.You'd think that after all of this press attention fixated on a fairly basic (but massive) screw up, that companies would stop doing this. But you'd be wrong.The latest company to fail at fundamental security practices is California's Bank of Cardiff, which managed to leave millions of phone recordings made by employees -- you guessed it -- in an unsecured Amazon cloud bucket open wide to the general internet. Many of the phone recordings exposed include bank employees talking with customers about sensitive financial transactions:

Week after week we've documented how internet of things devices are being built with both privacy and security as a distant afterthought, resulting in everything from your television to your refrigerator creating both new attack vectors and wonderful new surveillance opportunities for hackers and state actors. And CIA leaks have indeed confirmed that "smart" TVs and other devices with embedded microphones make for wonderful surveillance tools.So it's not too surprising to see Microsoft's Security Response Center proclaim this week that it has caught Russian hacking group “Strontium" (aka Fancy Bear and APT28) using poorly secured printers, VoIP phones, and video decoders to gain access to sensitive networks. As is usually the case, Microsoft found that once these devices' security was bypassed (often an easy feat given there's sometimes little to no security measures in place), they were able to use them as a beach head to gain broader access to the networks they were connected to:

Just a few weeks ago we pointed out (for not the first time) that news paywalls for general interest publications did not seem likely to succeed outside of a very small number of exceptions: mainly three giant east coast newspapers which have established themselves as key news sources: the NY Times, the Washington Post and the Wall Street Journal (arguably the last one, with its focus on finance, might not even count as "general interest"). In that last post, we pointed out that even people who liked to pay for news tended to only subscribe to a single news source. That helps create a winner take all proposition where only a very small number (see above) can actually build a sustainable business model through an internet paywall.And that means that even if you're a pretty well known newspaper, falling outside the big ones, it means you're going to be in trouble. Witness the LA Times failing paywall. As Nieman Lab notes, in terms of paper subscriptions, the LA Times used to rank above the Washington Post. But it didn't make the transition to digital the way the Post did:

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

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So, about a week ago, the NY Times properly mocked politicians for totally misrepresenting Section 230 of the Communications Decency Act. This week it needs to mock itself. Reporter Daisuke Wakabayashi wrote a piece provocatively titled (at least as it was originally published) Why Hate Speech On The Internet Is A Never Ending-Problem, with a subhead saying: "Because this law shields it." And in case you believed it might be talking about some other law, between the head and the subhead it showed part of the text of Section 230 (technically, it showed Section (c)(1)).If you want to see how badly the NY Times botched this, just check out the current headline on the piece. It's pretty different. Now it says: "Legal Shield for Websites Rattles Under Onslaught of Hate Speech." Even that's... not great. Also, the NY Times added the following whopper of a correction notice:

The DOJ wants its secrecy. The President keeps taking it away. Over the past couple of years, FOIA litigants have received unexpected support from President Trump, often in the form of tweets. While the DOJ is arguing nothing the records seekers are seeking should be handed over, Trump is tweeting out demands that everything should be released -- largely due to his unwavering belief that selective transparency will somehow expose a massive Deep State operation against him and his associates.The stuff Trump wants exposed relates to FISA court orders and other documents related to investigations of Trump's campaign team and their ties to Russia. Trump is convinced there's nothing there and wants the public to see this for themselves. It's inadvertently commendable, even though there's a strong possibility the documents won't actually prove what Trump thinks they'll prove.Nonetheless, the friction between the DOJ's FISA-related opacity and Trump's Twitter account continues, as Josh Gerstein reports for Politico.

Man, these presidential election years sure seem to last longer than a year, don't they? And, in our hyper-partisan world of never ending political stupidity, it's somewhat comforting that the one thing we can all agree on is that the debate formats recently have basically sucked out loud. The complaints about debate formats started with the 2016 RNC primaries, with its crowded field and strange varsity/JV debate night structure. Fast-forward to 2019 and the DNC's Democratic debates are being pilloried as well. In the latter case, the chief criticism appears to be that there is far too little substance discussed, with moderators for cable and OTA networks instead focusing on getting the candidates to clash in the most easy-to-soundbite fashion. Even from the major print media, you get takes such as:

Despite spending more than $150 billion on mergers intended to help it dominate the video space, AT&T's video ambitions are falling flat. The company just posted a loss of more than 778,000 "traditional" video subscribers last quarter (satellite TV, IPTV), but also lost another 168,000 subscribers at its DirecTV Now streaming service. The reason? The company's acquisitions of DirecTV ($67 billion) and Time Warner ($86 billion) saddled it with so much debt, the company was forced to raise rates. This, in turn, helped drive AT&T's customers to the exits.Despite its voracious appetite for M&A, it's not entirely clear the company knows what to do from here. The same week it announced record subscriber losses, AT&T proclaimed it would be engaged in a rebranding that will kill off the DirecTV brand. AT&T's DirecTV Now streaming video service will now be, quite creatively, named just AT&T TV Now:

The Chinese authorities really don't like rumors being spread. Back in 2012, Techdirt reported on a "five strikes and you're out" plan for throwing rumormongers off social media for 48 hours. That obviously didn't work too well, since in 2013 a tougher line was introduced: three years in prison if you get 500 retweets of a "hurtful" rumor. But even that doesn't seem to have achieved its aim, judging by this post on Caixin Live about yet another law aimed at stamping out rumors:

There's a new but growing desire, both within the tech industry and among onlookers, for more technologists to get involved in public policy and doing work to serve the public interest. Various plans to help make this happen are starting to appear, and an especially interesting one is the Aspen Tech Policy Hub, which aims to help establish a new generation of tech policy entrepreneurs using an incubator model in the vein of Y Combinator. This week, Mike is joined by director Betsy Cooper to discuss the Hub's inaugural cohort of technologists, and what comes next.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

We've had something of a long-running series of posts on the topic of content moderation, with our stance generally being that any attempt to do this at scale is laughably difficult. Like, to the point of being functionally impossible. This becomes all the more difficult when the content in question is not universally considered objectionable.Tech firms tend to find themselves in the most trouble when they try to bow to this demand for content moderation, rather than simply declaring it to be impossible and moving on. The largest platforms have found themselves in this mess, namely Facebook and YouTube. YouTube, for instance, has released new moderation policies over the past two months or so that seek to give it broad powers to eliminate content that it deems to be hate speech, or speech centered on demographic supremacy. Wanting to eliminate that sort of thing is understandable, even if you still think it's problematic. Actually eliminating it at scale, and in a way that doesn't sweep up collateral damage and garners wide support, is impossible.Which makes it frustrating to read headlines such as Gizmodo's recent piece on how YouTube is doing with all of this.

Every time there are mass shootings in America, the public discourse disolves into a muck of tribal finger-pointing. We blame guns, video games, past Presidents, Congress, homosexuality, the decline of the nuclear family, mental illness, the internet, and on and on. Nothing gets done, no proposed solutions are adopted, and those proposed solutions gradually become all the more insane. The truth is more nuanced than can fit into a soundbite on some cable news program, but somehow the debates soaked in blood and grief never acknowledge this. If there is to be a sea change in the rate of incidents of mass violence in this country, this will have to change.Or, if you're President Trump, you just tell the same social media companies you've regularly railed against for being biased to be your pre-crime agents instead.

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For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). Our terrible broadband maps are, of course, a feature not a bug. ISPs have routinely lobbied to kill any efforts to improve data collection and analysis, lest somebody actually realize the telecom market is a broken mono/duopoly whose dysfunction reaches into every aspect of tech.While these shaky maps have been the norm for several decades, recent, bipartisan pressure by states (upset that they're not getting their share of taxpayer subsidies because we don't actually know where broadband is) has finally forced even the Ajit Pai FCC to take some modest action.Previously, the form 477 data provided by ISPs let them declare an entire census block "served" with broadband if they provided broadband to just one home in that census block. After years of complaints, that is finally changing with a new FCC rule change that will require that ISPs provide geospatial maps of where they actually offer service for the first time in history:

Ever since Ed Snowden doxed the NSA's phone records collection, the agency has been coughing up documents showing its multiple collection programs have never not been abused since its was granted more power shortly after the 9/11 attacks.The putative sacrificial lamb offered up to angry Congressional reps and dismayed citizens was the Section 215 program. Well, only a small part of it, actually. The NSA would continue to hoover up business records without a warrant, but it was having trouble working within the confines of modifications forced upon it by the USA Freedom Act.Rather than use its considerable expertise to tackle the problem of over-collection, the NSA has apparently decided to abandon this collection altogether. It only took six years since the first Snowden leak, but it's something. But the NSA's uninterrupted string of abuses continued right up to its offer to shutter the program -- something that won't actually be official until Congress codifies the abandonment.Thanks to yet another FOIA lawsuit, more bad news about the tail end of collection's lifespan has been released. Charlie Savage of the New York Times reports the NSA's claims about its purge of over-collected data were as hollow as any of the dozens of public statements it has offered in response to a steady stream of leaked documents.

Last week, the European Court of Justice ruled on three separate cases regarding copyright, and exceptions to copyright. We had covered two of these cases back in the summer of 2017 and we finally have rulings. Two of the rulings are... not good. One is okay. We'll save the best for last.The first of the cases, the Pelham case, was about whether or not sampling was infringing in Germany. This case actually goes back to the turn of the Millennium. In fact, all the way back in 2012 we wrote about how this (then) 12-year-old case had finally come to an end. If only. It involved a German rapper in the late 90s using 2 whole seconds of a 1977 Kraftwerk song "Metall auf Metall." The question was whether or not such a tiny sample could be infringing. At the heart of the case was the ever-present conflict between copyright and freedom of expression. And here, the court said copyright trumps freedom of expression and creativity, even when it's a tiny 2 second music sample. The only exception is if you somehow distort the sample so that it's not recognizable.

Here's where we are in the development of the American police state: no-knock raids over code violations.