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This week, our first place winner on the insightful side is James Burkhardt with some additional details on the court decision against Richard Liebowitz:

Five Years AgoThis week in 2014, traffic to The Pirate Bay was yet again surging following an attempt to block it. The copyright revolving door was in full swing, with the main architect of PIPA becoming an MPAA lobbyist alongside one of Hollywood's favorite former congressmen. Italy's public prosecutor seized a giant webmail provider and cloud storage provider for shaky copyright reasons, a San Francisco eviction lawyer was abusing the DMCA to censor a protest video, and a musician whose work was at the center of a copyright lawsuit against YouTube slammed the lawsuit and copyright itself.Meanwihle, The Intercept revealed the US government's guidebook for putting people on the no-fly list, as well as the stunning extra scrutiny such people were then put under. And an ex-official from the State Department suggested that the NSA has even worse surveillance programs than the ones everyone was focused on.Ten Years AgoSometimes there are shockingly perfect parallels between the present week and the past. Yesterday, we reported on Tulsi Gabbard's frankly insane lawsuit against Google — and this week in 2009, we reported on a gamer suing Sony with the same non-starter claim: that the company violated his First Amendment rights by banning him from a PS3 game. One might have hoped this sort of constitutional nonsense would stay relegated to random gamers, rather than being elevated to presidential candidates.Also this week in 2009: LSU was fining students for filesharing while apparently deeply misunderstanding the RIAA's demands, copyright lobbyists and government officials were celebrating bogus piracy stats, BREIN was demanding the Pirate Bay itself start blocking Dutch ISPs, and the Associated Press announced its ill-fated plan to DRM the news.Fifteen Years AgoThis week in 2004, panic gripped the copyright maximalists of Europe in the face of a looming horror: some popular rock songs starting to enter the public domain. The research director for the BSA admitted that the group misleads the public with how it describes its statistics, by changing "retail value of pirated software" to "sales lost to piracy" — a massive change, but subtle to those who don't follow the subject closely. Nevertheless, Congress was pushing forward with the INDUCE act to fight piracy, holding hearings where the Copyright Office gave a full-throated endorsement of the bill and Orrin Hatch seemed not to notice that he basically admitted banning P2P systems is wrong. Congress was also pretty gung-ho on passing some sort of anti-spyware bill, details be damned. And this was also the week that Lindows became Linspire, after Microsoft gave up and just paid Michael Robertson a cool $20-million to buy the name.

Covering trademark nonsense, our posts tend to intersect regularly with the world of sports. It's relatively common at this point to witness teams and even entire leagues pulling anti-fan trademark stunts, from athletes trademarking their own nicknames no matter the fallout, to leagues considering messing with the trademark applications of video game companies, up to and including iconic baseball teams managing to trademark the derisive nickname given to them by other teams. It's all very, very stupid.Across the pond, however, teams in the Premier League have somehow managed to get trademarks on their home-city's names. Chelsea FC, for instance, has a trademark for "Chelsea" related specifically to football services and merch. This sort of thing is almost never allowed here in the States, but it's become enough of a thing that Liverpool FC is attempting the same move for "Liverpool" and it's pissing off a whole bunch of people.As was the case with Chelsea FC, Liverpool FC insists its mark will be very narrow.

For a few years now, the company behind online streaming and speedy, cheap shipping has been seeking to expand its offerings. Amazon Web Services pays the bills, providing data storage for multiple companies/governments. "We can remember it for you wholesale!" Amazon promises. But that's the old thing.The next tech bet Amazon is willing to use as a loss leader to gain market share is facial recognition. Amazon has been handing this stuff out like bank teller lollipops to any law enforcement agency with money to spend and a desire to expand its surveillance net.Naturally, Amazon is high on its own supply. Everyone else, not so much. Congress demanded answers after a test drive of Amazon's facial recognition tech (called "Rekognition" because misspellings mean the future is now) said 28 of its members were criminals.At that point, it was no longer an existential threat to people's freedom. It was now a pile of computational garbage incapable of telling a Congressperson from a criminal. That those two groups sometimes have a significant overlap was lost on everyone involved. But the upshot was the US federal government had its eyes pinned on Rekognition, for better or worse.Cops shops love tech, especially the cheap kind. They also love the sort of tech they can pretend to understand as they pitch it to city legislators who also pretend to understand it. Some legislators are ahead of the curve and are telling cops this simply isn't going to happen on their watch, but for everyone else, there's cheap facial recognition tech from a recognized brand name not really recognized (yet!) for cop tech.Sadly, not everyone is happy with the cheap goods Amazon sort of sold them. The Orlando Police Department decided to give Amazon's Rekognition program for a test drive. After 15 months and an untold amount of dissatisfaction, the department is pulling the plug on its relationship with the internet giant.

Hiring cops is hard work. That's probably why we're not exactly blessed with the best of the best. Over the past few years, police officer morale has been in a nosedive. As the public's awareness of police misconduct has increased (along with third-party footage of said misconduct), cops have discovered the job is no longer quite as fun as it used to be. Lots of power and zero accountability is a hell of a drug, but even that wears off eventually.But cop shops still need cops, so hiring continues. Law enforcement agencies endlessly recycle fired officers, giving them unearned shots at redemption. Other agencies have just given up, hiring whoever walks through the door expressing interest in the position.When the openings exceed the hiring pool, you get the mess being inflicted on the residents of Stebbins, Alaska. This horrifying report by Kyle Hopkins for ProPublica demonstrates just how low the bar can be set for new hires if your agency is desperate enough.

Everyone loves surveillance creep. Well, by everyone, I mean the government and the vendors that sell to them. Automatic license plate readers have made their way from police cruisers to malls, as has facial recognition tech that very often fails to actually recognize people.The "everyone" may now include the near-fascist organizations turning neighborhoods into glittering shrines of conformity. I'm talking about homeowners' associations -- the anal-retentive busybodies who want to make sure your grass is cut to the correct length and that no one's offending passersby with creative mailboxes.The Denver Post reports the newest customers for surveillance tech is HOAs and gated communities.

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Well, here's an odd one: the Presidential campaign for Tulsi Gabbard is now suing Google claiming, among other things, that the company has "violated her First Amendment rights" by temporarily shutting down her advertising account and also funneling some of her campaign emails to spam in Gmail. This lawsuit is a complete non-starter, and makes use of the same debunked legal theories that others have used against social media companies. First, it argues that closing her Google advertising account was obviously because people at Google didn't want her message getting out after the first Democratic Presidential debates.

This wasn't how it was supposed to go for AT&T. In AT&T executives heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has ramped up its efforts to nickel-and-dime users at every opportunity, from bogus new wireless fees to price hikes on both its streaming and traditional video services.Not too surprisingly, these price hikes are now driving subscribers to the exits.The company's latest earnings report indicates that AT&T not only lost another 778,000 "traditional" video subscribers last quarter (satellite TV, IPTV), but it lost another 168,000 subscribers at its DirecTV Now streaming service -- due to "higher prices and less promotional activity":

As Techdirt has pointed out many times, one of the biggest problems with the EU Copyright Directive's upload filters is that they will necessarily be automated, which means they will inevitably be flawed. After all, it can take the EU's top judges weeks to decide complex questions about whether something is copyright infringement or not. And yet Article 13/17 expects software to do the same in microseconds. This kind of collateral damage from clueless algorithms is already happening, albeit on a small scale. Boing Boing has an interesting new twist on this problem. Cory Doctorow writes about an idea that RJ Jones mentioned on Twitter:

We have been talking these past few weeks about a strange game of whac-a-mole currently being played between YouTube and a whole bunch of stream-ripping websites. While stream-ripping sites have been targeted by the music industry specifically for some time now, despite a wide range of non-infringing uses of such technology, it was only recently that YouTube decided to participate in all of this by blocking access to its platform for many of these sites. Built around claims of ToS violations, it's fairly clear that YouTube's actual goal in all of this is to appear to be attempting to bow to the music industry's wishes. Despite the blocks, many of these sites have managed to route around the blockade, thus the game of whac-a-mole.But not all such sites have taken this stance. Onlinevideoconverter.com, which initially routed around the block, has since announced that it is voluntarily leaving the hide-and-seek game and will simply stop converting YouTube videos itself.

One of the search warrants used by the San Francisco police department to go after a journalist for documents a PD employee leaked has been released. This is only one of the five warrants targeting "stringer" Bryan Carmody, whose house was raided by the SFPD back in May.This search warrant targeted Carmody's phone records. It was granted on March 1st, allowing the SFPD to obtain records from Verizon. This was done supposedly to track down which cop called Carmody over a two-day period prior to the release of the leaked document to California news agencies.Earlier this month, Judge Rochelle East quashed the warrant, saying it showed the SFPD omitted key info that would have made it clear it was targeting a journalist -- something forbidden by California's journalist shield law. The judge also unsealed the warrant. It has finally been released and it shows SFPD Sgt. Joseph Obidi writing his way around the fact that Carmody is a journalist.In the application [PDF], Sgt. Obidi cut-and-pasted part of Carmody's LinkedIn profile. The officer included the part that said Carmody was a "Freelance Videographer." But he excluded the part that said Carmody "has decades of experience shooting, editing and reporting news," as well as the long list of new agencies he had worked with. It also excluded the fact that the SFPD had issued a press pass to Carmody -- one that was still current when the warrant was obtained.This was pointed out during the hearing about the warrant by Judge East, who said the existence of a press pass should have told the SFPD to steer its investigation away from Carmody.

Very few law enforcement agencies take accountability seriously. Even when officers are held responsible for wrongdoing, their employers find ways to soften the blow. Powerful police unions make the situation worse. The gap between officers and accountability hasn't really shrunk, no matter how many recording devices we've attached to them or boards we've appointed to oversee them.Nothing is going to improve if things like this keep happening. The backstory is this: Officer Philip Brailsford responded to call about a man in a hotel room with a gun. That man happened to be Daniel Shaver. Shaver killed pests so he owned pellet guns -- one of which he had in the hotel room with him.Within minutes of Officer Brailsford's arrival, Daniel Shaver was dead -- shot five times by Brailsford whose AR-15 was decorated with the phrase "You're Fucked."Shaver was, indeed, fucked. He never had a chance to make it out of this confrontation alive. The video of his shooting shows Shaver never posed a threat. It shows Brailsford was the aggressor in this situation -- laying down a steady stream of conflicting commands with the promise of death for any failure to comply.This summary of Shaver's last nightmarish minutes of life comes via the ACLU's Jeffery Robinson:

It sometimes is difficult to get people to understand just how >utterly insane the college textbook market is. You have a captive audience who has no choice but to purchase what the professor requires (which is why it's doubly lame when professors require their own books). But even people who went to college a few decades ago may not be aware of just how much textbook prices have kept rising. A study from 2015 showed that college textbook prices had risen over 1000% since 1977. 1,000%.Another BLS study from 2016 showed that, in the education space, the price of textbooks had gone up even faster than the cost of tuition (which is also skyrocketing).In short: college textbooks are crazy, crazy expensive. And one way that people have dealt with this over the years is (1) by buying used textbooks, or (2) by selling back the textbooks at the end of the semester (or in some cases, both). However, that's the one factor that's acted as competition to the textbook market.And the publishers want to do away with it.The largest educational textbook publisher, Pearson, has now announced that it's going to phase out print textbooks and move solely to electronic textbooks. If you actually want a physical textbook, you'll only be able to "rent" it:

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The DOJ has now spent more than a year dodging an obligation it created itself. For years, FBI directors and DOJ officials have told anyone who'd listen -- conference attendees, Congressional reps, law enforcement officials -- the world was going dark. Device encryption was making it far more difficult for the FBI to collect evidence from seized devices and the problem was escalating exponentially.It wasn't. Every new "going dark" speech contained a larger number of impenetrable devices the FBI was sure contained all sorts of juicy evidence. When the FBI was asked about these devices by members of Congress, it finally decided to take a look at its numbers. The numbers were wrong. The FBI said there were around 8,000 locked devices in its possession. In reality, the number is probably less than 2,500.The problem is we don't actually know what the correct number is. The DOJ has been promising an update since May 2018, but it has yet to release this number. Instead, it has released the mouth of its top man -- William Barr, a longtime fan of domestic surveillance.Barr's keynote address to the International Conference on Cyber Security didn't deal much with cybersecurity. Instead, it was 4,000-word anti-encryption rant. William Barr wants encryption backdoors. There's no use in the DOJ denying after his verbal assault on device encryption and device manufacturers. There is no subtlety and no hedging. The only concession Barr makes is that encryption shouldn't vanish entirely. But any form of encryption that remains should leave a key under the doormat for the G-men.

While the Pai FCC is chomping at the bit to approve T-Mobile and Sprint's competition and job killing mega-union, rumors have long been that many DOJ staffers remain highly skeptical about the purported benefits of the deal. After all, history routinely shows that when you reduce the number of overall competitors in the telecom space from four to three, the reduction in competition results in higher prices and worse service (go ask the Canadians or the Irish). Such mergers also pretty routinely are massive job killers, given there's a laundry list of support and middle management personnel who wind up being redundant.To address the competitive impacts, the DOJ is prepared to sign off on a new, elaborate deal that would offload Sprint prepaid brand Boost Mobile and some spectrum to Dish Network in a bid to cobble together a viable, fourth competitor out of sticks and twine:

Reform efforts targeting cash bail, plea deals, and life-altering criminal charges have occasionally hit on the idea of pre-trial diversion. In exchange for payment and possible an educational class or two, people now have the possibility of satisfying their obligation to the government while keeping their criminal record clean.It sounds like a good idea. But there's a huge gap between the theory and the practice. In some cases, corporations like Walmart have inserted themselves into the criminal justice system, freeing shoplifters of criminal charges provided suspects pay the store a few hundred dollars and attend mandatory "don't be a criminal" classes. Unlike the government version, there's no chance you'll be found innocent by a jury of your peers. If Walmart accuses you, you pay the fines, do the classroom time, or get hit with criminal charges anyway.Elsewhere, government agencies are moving forward with pre-trial diversion programs. It makes a limited amount of sense. People don't want to go to jail. And prosecutors don't necessarily want to put in the prosecution work for every rinky-dink case cops toss their way. Yes, there's not a lot of due process in it, but there really isn't much in the system anyway, not when most criminal accusations result in plea deals, rather than jury trials.These programs could result in positive outcomes for accused citizens, who are able to keep their criminal/driving records spotless despite being cited or arrested for violations. Unfortunately, the programs are being warped to serve prosecutors, rather than the public, as Jessica Pishko reports for Politico.In Louisiana, the Rapides Parish District Attorney's office asked for $2.5 million in funding from the cash-strapped parish. The treasurer, Bruce Kelly, dug into the DA's numbers to see what had caused this shortfall. Kelly saw a steady decline in the funds collected by the DA's office for court fines and traffic tickets. He also saw an office in good physical condition with a fleet of new cars. None of this added up. So, Kelly dug deeper.

As we've been talking about for a bit now, there is a new favorite target of the music industry when it comes to anti-piracy efforts: stream-ripping websites. It's important to continue to point out that, despite the plain fact that these sites are quite often used to generate audio-rips of copyrighted music video material, that is most certainly not their only use. Other uses for these sites are non-infringing. But this is the music industry we're talking about, with it's storied history of carpet-bombing technology tools rather than precision bombing actual infringement.Meanwhile, YouTube more recently decided to conspire with the music industry against these sites by blocking several prominent stream-ripping sites without word or warning. From that original post we wrote:

The Eleventh Circuit Court of Appeals has reached a conclusion that defies easy summation. But here's an attempt: it is not well-established that cops shouldn't shoot children they've ordered to lie prone on the ground while trying to shoot a dog that posed no threat to officers.In reversing the lower court's denial of qualified immunity to Officer Michael Vickers, the Appeals Court has opened the door to preventing the stupidest, most-inept cops from being held responsible for their careless blunders.In this case, Vickers and other officers were pursuing a suspect through a neighborhood. This pursuit inserted them into the backyard of Amy Corbitt, where Corbitt's 10-year-old child (known only as SDC in the opinion) and five other children (two of them under the age of three) were playing. The officers entered the yard and demanded everyone present to get down on the ground, including the children. They handcuffed the only adult in the backyard (Damion Stewart) and kept the children on the ground. The officers had the scene secured as they outnumbered the prone children who were still laying on the ground with guns pointing at them.The surprise entrance of the family dog turned this scene from merely-horrific to possibly deadly. From the decision [PDF]:

So if you've been around these parts for a while, you might remember a big stink back in 2006 or so when Google's Street View vehicles were found to have been hoovering up data collected via WiFi. The collection came while the company was collecting Street View data via its army of specially-configured vehicles, and included pretty much any and all unencrypted data traveling over those networks, including telephone numbers, URLs, passwords, e-mail, or video streams. The goal was purportedly to ensure better geographical positioning data, but the data collected went well beyond what was needed for that goal.Initially, Google claimed that the data collection was accidental, something supported by engineering analysis at the time. Here's what Google said in 2010 about the issue:

Here's a bit of a weird one: a First Amendment lawsuit over the "muting" of a player's character. (h/t Volokh Conspiracy)Amro Elansari -- in a handwritten complaint [PDF] -- contends Jagex Inc., the company behind Runescape, violated loads of rights and other things when it apparently muted his character back in March of this year. The allegations include discrimination, violations of his free speech rights along with his due process rights, and other "adverse action."He claims he was muted for no reason and without notification -- this despite being a "streamer + 2000 hours + invested." He also claims this happened while he was streaming and that viewers witnessed this egregious violation of multiple rights as it happened. Elansari's lawsuit asks for the court to order the "mute" removed and whatever else a jury might find proper to award him.Obviously, there's nothing the judicial system can do for him.To start with, Elansari is suing a (UK) company for violating his (American) rights. Even without these particular modifiers, there's nowhere Elansari can go with this. He's suing a private company for violating his Constitutional rights -- something that's almost impossible for a private company to do. Especially First Amendment rights, which can only be violated by the government.Early on in the order [PDF], the court notes there's no federal claim it can even attempt to handle given the particulars of the allegations.

So, as was leaked a couple of weeks ago, the FTC has now made its $5 billion settlement with Facebook official. There's quite a bit that's interesting in the stipulated order that is worth reading. I'm actually glad to see that this wasn't just about Cambridge Analytica, where I think the "breach" issue was much less concrete. Instead, it does include a bunch of other very real violations by Facebook, including:

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Well, here's a different kind of a "looks like a duck" test when it comes to copyright law:

A little more than 12 years ago, Verizon was forced to strike an agreement with the New York State Attorney General for marketing data plans as "unlimited" when the plans had very clear limits. Carriers have received numerous subsequent wrist slaps for the practice in the decade since, but none of these lessons appear to have gotten through.Case in point: Verizon recently launched its first ever 5G hotspot for use on the company's barely available 5G network. To use it, you'll need to pony up $650, which is three to four times higher than the cost most pay for a comparable 4G hotspot. From there, you'll need to pay Verizon $85 per month for an "unlimited" 5G data plan, which is roughly $10 more per month than a comparable 4G plan. And of course, this being Verizon, the company's "unlimited" data plan is not really unlimited:

An investigation called the "Plain View Project" has uncovered a truly disturbing amount of bigoted, violent social media posts by police officers located all over the United States. The entire database of posts is located here. Anyone wanting to see what their public servants truly think about the people they serve can click through and be horrified.It would be horrifying enough if officers just kept their thoughts to themselves and let those thoughts guide their actions. But these are public posts able to be viewed by anyone and these officers apparently had no qualms about displaying the content of their character. This is just a small sampling:

Update: As a reader helpfully pointed out in the comments, the original source article for this post incorrectly suggested that Weischede had defeated Viacom in a legal battle. In the link included in the comment, which provides far more detail, it turns out that this was resolved when Viacom dropped its opposition as opposed to having it defeated. I have left in the original post and inputted this update for the sake of clarity.You may not recall the name Katharina Weischede, but we wrote about this Filipina teenager from New Zealand back in 2018, when Viacom decided to oppose the 13 year old on trademark grounds because she dared to make and sell "slime" as a business. More specifically, Katharina has earned the nickname in New Zealand of "Slime Princess", which is what she applied for in her trademark application. Viacom opposed the application, citing that its Nickelodeon division has trademark rights for "slime" in the country already.It was an absurd opposition on every level, from Katharina's company carrying something like a $20k valuation at the time, to the overly broad mark which Viacom was purporting to be protecting, to the pure PR nightmare that was getting into a legal battle with a bright teenager looking to start a fun business.And, to make the whole thing worse, The Slime Princess (TM) defeated Viacom at the trademark office.

Back in May, the San Francisco Police Department raided the home of a local "stringer," hoping to discover who had leaked a sensitive police report to the journalists. This raid violated the state's journalist shield law and the First Amendment. Since it was obvious the source of leaked document was an SFPD officer or employee, the raid was also incredibly stupid… unless the real point of the show of force was to discourage journalists from publishing leaked documents.It took a few days before the SFPD police chief was willing to condemn the raid. According to the chief, the still-unseen affidavit glossed over the target's occupation -- an omission that likely would have seen the warrant application tossed if it had been included.Speculation about the contents of at least one of the warrants is about to come to an end. The judge overseeing stringer Bryan Carmody's challenge of the warrant has ordered the affidavit to be unsealed.

Moral panics are nothing new, but they've taken on many new forms in the internet era, and their patterns have rubbed off on other kinds of techno-panics. This week, I join Mike on the podcast to discuss the way we talk about the potentially scary aspects of tech, how to spot a tech panic, and how to start changing the conversation into something more constructive.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The NSA's Inspector General has released its biannual report on its recent investigations. This report is delivered to its Congressional oversight which, let's face it, is generally uninterested in ensuring the Constitutionality of the agency's surveillance programs. Nevertheless, here it is [PDF].Included are things we know… like the agency's inability to collect phone records correctly under the constraints imposed by the USA Freedom Act. The assumption was leaving the phone records in the control of telcos would reduce overcollection. The NSA proved us wrong. It led to more overcollection, rather than less, leading the NSA to conclude it was better off without this program.Overcollection had never been considered a problem before, but perhaps the NSA felt there was only so much massive piles of unrelated data could tell it. It decided to can the phone records collection. But, unless Congress decides to codify this voluntary move, it could decide to start overcollecting again.What is new is the NSA's inability to surveil itself. It has eyes and ears around the world (five at least!) but it can't seem to keep an eye on its own employees. There's a huge disconnect between the agency's surveillance powers and its ability to keep tabs on the staff. It would seem NSA staff would be about the smallest surveillance subset possible, but here we are.We noticed this inadvertent irony several years ago. The NSA has the power to collect email metadata and content in bulk, but when it comes to responding to FOIA requests, it claims it simply doesn't have the skill set to search internal emails efficiently or accurately. The agency's massive budget apparently all goes to outbound searches. Asking it to find stuff its own employees discussed via email results in a shrug and mumbling about "archaic systems."You will either be unsurprised or slightly more chagrined by what's contained in the latest report, given this foreshadowing. Exposed in the Snowden stash back in 2013 was the fact that the NSA did not just collect phone records in bulk. It also collected financial records in bulk, hoovering up credit card transactions with its "Follow the Money" program. The purpose was to trace money flowing to terrorists. To achieve this, the NSA approached credit card companies with FISA-approved warrants or subpoenas. No Constitutional protection is given to these third-party records, thanks to a court system that has consistently found that anything Americans share with others should be "shared" with the government.Given this reach, you'd assume in-house tracking of purchases using… um… company[?] cards would be trivial. Well, that's why assumptions suck. NSA employees are blowing money on unapproved stuff and all the agency can offer is the same shrug it attached to its failed FOIA search.

Sorry Russian trolls (oh, and also all you people insisting that Section 230 doesn't and or shouldn't allow Facebook to kick trolls off its platform), but a court has made it clear that Facebook is clearly protected in kicking trolls off its platform. In this case, the Federal Agency of News (FAN) was kicked off Facebook soon after the 2016 election, when Facebook realized that various Russian trolling outfits had used the platform to push propaganda, often directed by the Russian "Internet Research Agency." Among the pages that Facebook removed was FAN's. For what it's worth, the "General Director" of FAN was one Aleksandra Krylova, who is among those who were indicted by Robert Mueller last year, for trying to influence the US election.Somewhat incredibly, FAN decided to sue Facebook over this, claiming a violation of the First Amendment along with some other claims -- which I'll just note in passing seem oddly similar to the claims used by white supremacists and other trolls who have sued social media for being removed. This includes claims of a civil rights violation under both federal law and California's Unruh Civil Rights Act, a breach of contract claim and a breach of "implied covenant of good faith and fair dealing."All of this fails. Miserably. For all the reasons we've discussed for years. Judge Lucy Koh points out that CDA 230 clearly applies here, and walks through why each of FAN's arguments are legally nonsense. We'll give a few examples, mainly highlighting the silly arguments that (other?) trolls keep putting forth lately to argue why CDA 230 does not protect such content moderation. First up, an argument that the CDA is only supposed to apply to obscenity or other kinds of "offensive" content, and therefore doesn't apply to garden variety trolling. Nope, nope and nope:

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Last week, when I wrote about Senator Graham's crazy "But think of the children online!" moral panic hearing, I highlighted comments from a guy named Christopher McKenna, who runs an organization called "Protect Young Eyes," which is one of those organizations that freaks parents out about all the evil things your kids might be up to. Among many of the crazy and misleading comments McKenna made, was one that was actually accurate, but interpreted incorrectly. McKenna whined that it was impossible to "watch over" kids online all the time. His solution was to force companies (and politicians) to censor the internet with filters and other tools. Or, at the very least he seemed to think parents needed better tools to spy on their kids' online activities.As we pointed out, another person on the panel suggested that rather than spying on our kids all the time, it would be better for parents to educate kids how to be good digital citizens, how to avoid danger, and how to better interact with the world around them. He was almost entirely ignored for the rest of the panel.This divide in parenting techniques is a big deal, however. Thanks to new technologies it is much easier to spy on kids all the time. But we should be wary of that. Wired just had an article about how the app Life360 is ruining kids' summer as parents are tracking everything they do:

However bad Facebook's privacy issues are, the telecom sector's have long been as bad, if not worse. That's been most recently exemplified by the industry's headaches surrounding the collection and sale of sensitive customer location data. Scandal after scandal has revealed that for the better part of the last decade, cellular phone companies have been collecting and selling your location data to a long line of often dubious companies and organizations, who then did the bare minimum to secure this data. Everyone from law enforcement to stalkers has been allowed to abuse this data, and your privacy.The latest case in point: a new investigation by Think Progress found that Steve Bannon also managed to get a hold of this data and use it for political targeting purposes. According to the report, Bannon and a group dubbed CatholicVote used the cell-phone location data of people who had visited Roman Catholic churches in Dubuque, Iowa, in 2018 to target them with get-out-the-vote ads:

The UK government already has the cameras -- thousands of them. So, why not add facial recognition to the mix? A number of UK law enforcement agencies already have. UK police forces compiled a legally-questionable database of 18 million face photos and went to work.Nobody did well. Failure after failure followed the rollout, with the London Metro police repeatedly claiming the "worst of the worst" title for itself. Despite this resounding lack of success, the Home Office feels the UK needs more failure, not less.

There are many, many ways for big companies' attempts to use social media or smart apps to go horribly wrong. Usually these happenings involve either hacked into accounts repurposed for lulz, rogue employees having a bit too much to drink on beer Friday and then going off, or companies doing something stupid and then blaming either of the previous for it.And then there's the American Hockey League's mobile app, which for some reason alerted users that Stewart Zimmel apparently both owes someone $6k and threatens to punch people in the throat.

Last month, we wrote a fairly long post about some interesting elements (demonstrating the flimsiness of "copyright" existing for many photographs) in a copyright lawsuit filed against model Gigi Hadid for reposting a cropped paparazzi photo on her Instagram. As we noted in that post, despite all of the interesting arguments made regarding copyright and photos, it seemed clear that this case was going to get tossed on purely procedural grounds -- namely that the lawsuit, filed by a photo agency called Xclusive-Lee (who may or may not even hold the rights to the photo), was filed prior to the photo receiving a registration from the Copyright Office. Back in March, the Supreme Court said that copyright law is quite clear that you need to wait until the registration is obtained.Here, that was not the case. It was filed before the registration was granted, and thus it's no surprise that (as first pointed out by the Hollywood Reporter) that this case was thrown out for that reason alone.

For the third time in two months, a US city has banned the use of facial recognition tech by local government agencies.San Francisco started this movement (oh god please let it be a movement) back in May, booting the tech out of the city before local agencies had even gotten a chance to fool around with it. Earlier this month, Somerville, Massachusetts took home the silver in the anti-surveillance-state games, enacting a local ban on facial recognition tech.Oakland, California has become the third city in the nation move forward with a facial recognition tech ban, as KPIX reports:

Maybe the LAPD doesn't have the experience its counter-coastal counterpart has in inflicting damage to rights and liberties, but it's trying, dammit! The NYPD's brushes with the Constitution are numerous and perpetual. The LAPD may have spent more time working on the Fourth and Fifth Amendments during its Rampart peak, but now it's rolling up on the First Amendment like a repurposed MRAP on a small town lawn.

As you may have heard, a couple weeks ago, President Trump hosted what he called a "social media summit," where he brought in various Trump-supporting social media people, and where they all got to whine about the completely made up concept of anti-conservative censorship on social media sites (and, because I know the same three of you are going to show up in the comments and scream your heads off that I'm being blind to such censorship: you have yet to show any actual evidence to support your claims -- and, no, a few anecdotes of trolls, assholes, revisionists and propagandists being blocked does not actually prove your point). Trump gave a long speech at that event, most of which made literally no sense. However, he seemed pretty damn sure that social media sites are censoring conservatives.

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You may be shocked to learn this, but nearly all of the promises AT&T made in the lead up to its $86 billion merger with Time Warner wound up not being true.The company's promise that the deal wouldn't result in price hikes for consumers? False. The company's promise the deal wouldn't result in higher prices for competitors needing access to essential AT&T content like HBO? False. AT&T's promise they wouldn't hide Time Warner content behind exclusivity paywalls? False. The idea that the merger would somehow create more jobs at the company? False.Of course the press and public aren't the only folks AT&T misled. To glean the support of the telecom sector's biggest union, the Communications Workers of America, AT&T apparently promised that newly acquired Time Warner (and subsidiary) workers would be able to join the union. But when the time came to actually allow those employees in, guess what? AT&T suddenly declared that wouldn't be happening for the vast majority of them:

It's becoming a tradition. A week ago, we wrote about a Friday evening news "leak" (almost certainly from Facebook) about the FTC approving a settlement with Facebook over privacy violations. And, this past Friday evening, there was a similar news dump about a similar settlement with YouTube (though at a much lower dollar amount). In both cases, the Friday evening news dump was almost certainly on purpose -- in the hopes that by Monday, something bigger will have caught the news cycles' attention. Thankfully, we don't work that way.Let's cut to the chase, though. No one (outside of, perhaps, YouTube/Google/Alphabet execs) is "happy" with this. Pretty much everyone will point out, accurately, that a "multi-million dollar" fine is effectively meaningless to YouTube. No one believes that this will magically lead to a world in which internet companies take privacy more seriously. No one believes this will lead to a world in which anyone's privacy is better protected.And while I'm sure some people will complain about the amount (pocket change for Google), I'm not sure the amount really makes much of a difference. Remember, last week's angry response to the $5 billion that the FTC is allegedly getting from Facebook. That's a much higher amount (by a massive margin) the largest the FTC has ever gotten from a company.Perhaps there's a larger issue here: this system of expecting private companies and overworked/understaffed federal (or state) agencies to somehow manage our privacy for us does not work -- no matter what your viewpoint on all of this is. Perhaps we should be looking for solutions where users themselves get better direct control over their data, and aren't reliant on giant fines or government bureaucrats "protecting" it for them. Because if we're just going to go through this charade over and over and over again, it's not clear what the benefit is for anyone.If you don't trust Google/Facebook, then no fine is going to be enough. If you do trust them to hold onto the data they collect, then this whole thing feels like a bit of privacy theater. No one ends up happy about it, and nothing is actually done to protect privacy. I've been pointing out for a while now that we're bad at regulating privacy because most people don't understand privacy, and I think these kinds of things are a symptom of that. There's this amorphous concept out there of "privacy," and people -- egged on by media stories that aren't always accurate -- have a concern that the companies don't do a very good job protecting our privacy. And they're right about that. But, there's no agreement on what privacy means or how you actually "protect" it. And the only tools in the toolbox right now are fines or crazy, confusing, misguided regulations that seem to only lock in large players and hand them an even more dominant position (allowing them to do more things that people are uncomfortable with).There needs to be a better approach -- and it has to be one that starts more from first principles about what it is that we're actually trying to accomplish here, and what will actually get us there. What we have now is not that.

This week, our first place winner is Gary with a simple and important take on the idea of the government seizing pharma patents:

Five Years AgoThis week in 2014, new revelations from Edward Snowden painted a bad picture of the culture at the GCHQ while, in an interview, he also described the NSA practice of "routinely" passing around intercepted nude photos — something the agency quickly insisted it would stop if it knew about it. The NSA was also saying it had more emails from Snowden when he still worked for the agency, but would not release them.Also this week in 2014: Google finally dumped its ill-fated real names policy, the MPAA was going after Popcorn Time, and the Supreme Court refused the Arthur Conan Doyle estate's last-gasp attempt to stop Sherlock Holmes from becoming public domain.Ten Years AgoThis week in 2009, we saw the ninth misguided lawsuit over trademark in Google AdWords, the Guinness Book of World Records used a bogus takedown to try to hide the records of a very embarrassing website fail, New Zealand was considering copyright reform but not really anything meaningful, and the newly-hugely-popular So You Think You Can Dance was blocked from doing a Michael Jackson tribute. A Norwegian ISP was fighting back against the Pirate Bay ban, the National Portrait Gallery was threatening Wikimedia over downloading public domain images, and Stephen Fry stepped up as an ally against corporate copyright abuse.Fifteen Years AgoThis week in 2004, the CEO of Streamcast was presenting evidence of collusion among record labels to blacklist file sharing companies, while a somewhat unclear study was suggesting BitTorrent usage was way up. The RIAA was predictably defending the INDUCE Act (which it basically wrote) in a letter full of misleading and untrue statements, while at the same time some people were asking if the agency's new anti-filesharing system Audible Magic was in violation of wiretapping laws, and its counterpart in Canada was fighting against a court ruling that said ISPs don't have to turn customer names over to the industry.

As I mentioned when we recently discussed Dean Guitars' pushback and counter-suit against Gibson Guitar's trademark lawsuit, Gibson CEO James Curleigh's vague declaration of a relaxed position on IP enforcement has calcified into something of an official corporate program. It's not all bad, but it's not all good either.We'll start with the good. Gibson has decided to recognize that there are fans inspired by its designs who want to create their own guitars and even sell them on occasion. In recognition of this, Gibson is starting an "authorized partnership" program to allow those creators to build guitars without fear of legal threat.

By now the half-baked security in most internet of things (IOT) devices has become a bit of a running joke, leading to amusing Twitter accounts like Internet of Shit that highlight the sordid depth of this particular apathy rabbit hole. And while refrigerators leaking your gmail credentials and tea kettles that expose your home networks are entertaining in their own way, it's easy to lose sight of the fact that the same half-assed security in the IOT space also exists on most home routers, your car, your pacemaker, and countless other essential devices and services your life may depend on.Case in point: just about two years ago, security researchers discovered some major vulnerabilities Medtronic's popular MiniMed and MiniMed Paradigm insulin pumps. At a talk last year, they highlighted how a hacker could trigger the pumps to either withhold insulin doses, or deliver a lethal dose of insulin remotely. But while Medtronic and the FDA warned customers about the vulnerability and issued a recall over time, security researchers Billy Rios and Jonathan Butts found that initially, nobody was doing much to actually fix or replace the existing devices.So Rios and Butts got creative in attempting to convey the scope and simplicity of the threat: they built an app that could use the pumps to kill a theoretical patient:

Carl Malamud is one of Techdirt's heroes. We've been writing about his campaign to liberate US government documents and information for over ten years now. The journal Nature has a report on a new project of his, which is in quite a different field: academic knowledge. The idea will be familiar to readers of this site: to carry out text and data mining (TDM) on millions of academic articles, in order to discover new knowledge. It's a proven technique with huge potential to produce important discoveries. That raises the obvious question: if large-scale TDM of academic papers is so powerful, why hasn't it been done before? The answer, as is so often the case, is that copyright gets in the way. Academic publishers use it to control and impede how researchers can help humanity:

In the past, law professor Eric Goldman has suggested that when it comes to infringing content, courts have an uncanny ability to ignore the actual law, and make up their own rules in response to the belief that "infringement bad!" An ongoing lawsuit against Cloudflare seems to be a case in point. As covered by TorrentFreak, a judge has allowed a case against Cloudflare to move forward. However, in doing so, it seems clear that the judge is literally ignoring what the law says.The case itself is... odd. In the complaint, two makers of bridal dresses are upset about the sale of counterfeits. Now, if we're talking about counterfeits, you'll probably think that this is a trademark lawsuit. But, no, Mon Cheri Bridals and Maggie Sottero Designs are trying to make a copyright case out of this, because they're arguing that sites selling counterfeits are using their copyright-protected photos to do so. And Cloudflare is, apparently, providing CDN services to these sites that are selling counterfeit dresses using allegedly infringing photographs. It is odd to go after Cloudflare. It is not the company selling counterfeit dresses. It is not the company hosting the websites of those selling counterfeit dresses. It is providing CDN services to them. This is like suing AT&T for providing phone service to a counterfeit mail order operation. But that's what's happening. From the complaint: