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Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

If you feel like you're about to get a silly trademark story, your spidey-sense is working. We'll keep this short and sweet, but this whole thing centers around Gwen Stacy, otherwise known as Spider-Woman. But because this is Marvel we're talking about, there is also something of an alternate universe version of Gwen Stacy, in which she went by the name Spider-Gwen, but has more recently had that character rebooted as Ghost-Spider.Confused yet? Well, it's about to get worse.When Marvel applied for a trademark on the Ghost-Spider name, two different companies asked for more time to oppose the marks. One opposition likely makes some sense and might be rather limited to the sports equipment and apparel markets that Marvel asked for in addition to comic books. That one comes from golf club manufacturer Taylor Made, which happens to make a putter line called Ghost Spider, with the apparel to match it.

For many, many years we've been writing about the ridiculousness of the Congressional Research Service's reports being kept secret. If you don't know, CRS is a sort of in-house think tank for Congress, that does, careful, thoughtful, non-partisan research on a variety of topics (sometimes tasked by members of Congress, sometimes of its own volition). The reports are usually quite thorough and free of political nonsense. Since the reports are created by the federal government, they are technically in the public domain, but many in Congress (including many who work at CRS itself) have long resisted requests to make those works public. Instead, we were left with relying on members of Congress themselves to occasionally (and selectively) share reports with the public, rather than giving everyone access to the reports.Every year or so, there were efforts made to make all of that research available to the public, and it kept getting rejected. Two years ago, two members of Congress agreed to share all of the reports they had access to with a private site put together by some activists and think tanks, creating EveryCRSReport.com, which was a useful step forward. At the very least, we've now had two years to show that, when these reports are made public, the world does not collapse (many people within CRS feared that making the reports public would lead to more political pressure).Earlier this year, in the Consolidated Appropriations Act of 2018, there was a nice little line item to officially make CRS reports publicly available.And, this week, it has come to pass. As announced by Librarian of Congress Carla Hayden, there is now an official site to find CRS reports at crsreports.congress.gov. It appears that the available catalog is still limited, but they're hoping to expand backwards to add older reports to the system (a few quick test searches only shows fairly recent reports). But all new reports will be added to the database.

We've done it — we've solved the challenge of content moderation! (Checks notes). No, wait, sorry: we haven't. But what we have done is invited Kate Klonick, law professor and author of the excellent paper The New Governors: The People, Rules, and Processes Governing Online Speech, to join us for an in-depth discussion about how we got here and why there are no easy or simple answers for content moderation.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.

TODAY IN GARBAGE HUMAN BEINGS:

Imagine a scenario:You have a Facebook page, on which you've posted some sort of status update. Maybe an update from your vacation. Maybe a political idea. Maybe a picture of your kids. And someone comes along and adds a really awful comment on your post. Maybe they insult you. Maybe they insult your politics. Maybe they insult your kids.Would you want to be legally obligated to keep their ugly comments on your post? Of course not. You'd probably be keen to delete them, and why shouldn't you be able to?Meanwhile, what if it was the other way around: what if someone had actually posted a great comment, maybe with travel tips, support for your political views, or compliments on how cute your kids are. Would you ever want to be legally obligated to delete these comments? Of course not. If you like these comments, why shouldn't you be able to keep sharing them with readers?Now let's expand this scenario. Instead of a Facebook page, you've published your own blog. And on your blog you allow comments. One day you get a really awful comment. Would you want to be legally obligated to keep that comment up for all to see? Of course not. Nor would you want to be legally obligated to delete one that was really good. Think about how violated you would feel, though, if the law could force you to make these sorts of expressive decisions you didn't want to make and require you to either host speech you hated or force you to remove speech that you liked.And now let's say that your website is not just a blog with comments but a larger site with a message board. And let's say the message board is so popular that you've figured out a way to monetize it to pay for the time and resources it takes to maintain it. Maybe you charge users, maybe you run ads, or maybe you take a cut from some of the transactions users are able to make with each other through your site.And let's say that this website is so popular that you can't possibly run it all by yourself, so you run it with your friend. And now that there are multiple people and money involved, you and your friend decide to form a company to run it, which both gives you some protection and makes it easier to raise money to invest in better equipment and more staff. Soon the site is so popular that you've got dozens, hundreds, or even thousands of people employed to help you run it. And maybe now you've even been able to IPO.And then someone comes along and posts something really awful on your site.And someone else comes along and posts something you really like.Which gets to the point on this post: if it was not OK for the law to be able to force you to maintain the bad comments, or to delete the good ones, when you were small, at what point did it become OK when you got big – if ever?There is a very strong legal argument that it never became OK, and that the First Amendment interest you had in being able to exercise the expressive choices about what content to keep or delete on your website never went away – it's just that it's easier to see how the First Amendment prevents being forced to make those choices when the choices are so obviously personal (as in the original Facebook post example). But regardless of whether you host a small personal web presence, or are the CEO of a big commercial Internet platform, the principle is the same. There's nothing in the language of the First Amendment that says it only protects editorial discretion of small websites and not big ones. They all are entitled to its protection against compelled speech.Which is not to say that as small websites grow into big platforms there aren't issues that can arise due to their size. But it does mean that we have to be careful in how we respond to these challenges. Because in addition to the strong legal argument that it's not OK to regulate websites based on their expressive choices, there's also a strong practical argument.Ultimately large platforms are still just websites out on the Internet, and ordinarily the Internet allows for an unlimited amount of websites to come into being. Which is good, because, regardless of the business, we always want to ensure that it's possible to get new entrants who could provide the same services on terms the market might prefer. In the case of platform businesses, those may be editorial terms. Naturally we wouldn't want larger companies to be able to throw up obstacles that prevent competitors from becoming commercially viable, and to the extent that a large company's general business practices might unfairly prevent competition then targeted regulation of those specific practices may be appropriate. But editorial policies are not what may prevent another web-based platform from taking root. Indeed, the greater the discontent with the incumbent's editorial policies, the more it increases the public's appetite for other choices.The problem is, if we regulate big platforms by targeting their editorial policies, then all of a sudden that loss of editorial freedom itself becomes a barrier to having those other choices come into being, because there's no way to make rules that would only apply to bigger websites and not also smaller or more personal ones, including all the nascent ones we're trying to encourage. After all, how could we? Even if we believed that only big websites should be regulated, how would we decide at what stage of the growth process website operators should lose their right to exercise editorial discretion over the speech appearing on their sites? Is it when they started running their websites with their friends? Incorporated? Hired? (And, if so, how many people?) Is it when they IPO'd? And what about large websites that are non-profits or remain privately run?Think also about how chilling it would be if law could make this sort of distinction. Would anyone have the incentive to grow their web presence if its success meant they would lose the right to control it? Who would want to risk building a web-based business, run a blog with comments, or even have a personal Facebook post that might go viral, if, as a consequence of its popularity, it meant that you no longer could control what other expression appeared on it? Far from actually helping level the playing field to foster new websites seeking to be better platforms than the ones that came before, in targeting editorial policies with regulation we would instead only be deterring people from building them.

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Pre-order your copy of CIA: Collect It All today »It's been a while since we've mentioned our version of the CIA's internal training card game, that we Kickstarted back in April. For those who backed it, you've been receiving all the various updates on it -- including allowing everyone to download the rulebook. And now the game is officially in production -- which also means this may be your last chance to purchase a physical copy. While we're printing up some extra copies beyond what's already been ordered, at this point we're only doing this one printing of the game, and that'll be it. You can still pre-order the game here, and as we get closer to selling out the initial run we'll turn it off.If you don't recall, this project grew out of the CIA telling the world about some of the internal training card and board games it had developed, leading to some FOIA requests that revealed the heavily redacted details of some of these games. We picked one of them -- which the CIA calls Collection Deck -- and turned it into our own game, entitled: CIA: Collect It All. It's a fast paced card game, in which players take on the role of CIA analysts, trying to collect enough information, using a variety of different spycraft techniques, to deal with various crises. Of course, as with the real world, other forces seek to get in the way and block the analysts from collecting all of the information they need.For our version of the game, we had to fill in a whole bunch of redacted cards, completely redo the design, and add in some other fun aspects to the game -- including an entirely different "storytelling" variant which allows you to use the same cards for a very different kind of game (still based on the CIA).After completing the redesign, filling in all of the redacted bits, adding new rules, rewriting the entire rulebook from scratch and more, we finally received our first prototype, and have approved it going into full production. We've initially ordered more than we sold via Kickstarter, but not a huge amount, so if you want a physical copy, it makes sense to put your order in soon.

Much like the giant ISPs he's clearly beholden to, Ajit Pai isn't particularly happy about California's efforts to pass meaningful net neutrality rules. The state's shiny new law recently passed the state assembly and senate, and is awaiting the signature of California Governor Jerry Brown. ISPs recently met with Brown in a last-minute bid to get him to veto the bill (a very real possibility) despite widespread, majority public support.Pai last week took some time to whine about California's bill at the Maine Heritage Policy Center, a "free market" think tank supported by (shockingly) major ISPs. In his speech, Pai insisted that California's attempt to protect consumers is somehow both "extreme" and "illegal":

The Sixth Circuit Appeals Court has taken a look at some of President Trump's campaign trail trash talk and decided urging fans to remove protesters wasn't incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it. There's nothing wrong with that. It's the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to "get 'em out of here."The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump's "get 'em out of here" directly caused them harm and violated the state of Kentucky's riot incitement law.The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs' own statements to undo their assertions. But it's not happy with the lower court's decision to apply a less strict standard to Trump's wording to give the plaintiffs a better shot at hitting the mark with their state claims ("incitement to riot"). Applying the plausibility standard -- that Trump's "get 'em out of here" could have conceivably incited a riot -- makes no sense if the lower court wasn't willing to apply that same standard to words Trump said directly after that.

Earlier this year, we wrote about what seemed to be a fairly serious breach of security at the world's largest biometric database, India's Aadhaar. The Indian edition of Huffington Post now reports on what looks like an even more grave problem:

For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

So this is somewhat unexpected, but Rep. Doug Collins has introduced HR 6714, a bill to make federal court records free to the public.

Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds -- many of which weren't possible before the Snowden leaks exposed the breadth and depth of the NSA's domestic surveillance.The federal judge presiding over the case -- which involved material support for terrorism charges -- has declared there's nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

Last week we, like many others, wrote about the story of Anders G da Silva, who had complained on Twitter about how Apple had disappeared three movies he had purchased, and its customer service seemed to do little more than offer him some rental credits. There was lots of discussion about the ridiculousness -- and potential deceptive practices -- of offering a "buy" button if you couldn't actually back up the "purchase" promise.Some more details are coming out about the situation with da Silva, and some are arguing that everyone got the original story wrong and it was incorrect to blame Apple here. However, looking over the details, what actually happened may be slightly different, but it's still totally messed up. Apple didn't just stop offering the films. What happened was that da Silva moved from Australia to Canada, and apparently then wished to redownload the movies he had purchased. It was that region change that evidently caused the problem. Because copyright holders get ridiculously overprotective of regional licenses, Apple can only offer some content in some regions -- and it warns you that if you move you may not be able to re-download films that you "purchased" in another region (even though it promises you can hang onto anything you've already downloaded).And, here the situation is slightly more confusing because Apple actually does offer the same three movies -- Cars, Cars 2 and The Grand Budapest Hotel -- in both Australia and Canada, but apparently they may not be the identical "versions" of the film, as they may be slightly altered depending on the region.And while this may be marginally better than completely removing his "purchased" films, it's still absolutely ridiculous. The CNET article linked above is sympathetic to the idea that Apple has to go to extreme lengths such as these to prevent "region hopping," and says that da Silva is just an "edge case" that "fell into a licensing crack." But, again, that's nonsense. This is digital content that he "purchased" using a "buy" button. It shouldn't matter where he is at some later date. He should still get access to those original files. That's what a purchase means. The fact that this might possibly in some cases mean that (OH MY GOSH!) someone in Canada can access a movie released in Australia when they're actually in Canada, well, uh, that seems like an "edge case" that a movie studio and Apple should deal with, rather than screwing over legitimate purchasers.But, alas, we're left with yet another example of the insanity driven by excessive copyright, in which copyright holders get so overly focused on the notion of "control" that they feel the need to control absolutely everything -- including making sure that no wayward Canadians might (GASP!) purchase and download a movie meant for Australians. It's this overwhelming, obsessive desire to "control" each and every use that messes with so many people's lives -- including da Silva's -- and makes sure that the public has almost no respect at all for copyright. Give up a little control, and let the edge cases go, and maybe people wouldn't be so quick to condemn copyright for removing their own rights so frequently.

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More bad news is surfacing from Google's Chinese government-ordained search engine. The project, known as "Dragonfly," has proven unpopular with some Google employees and many, many Google critics. The Intercept obtained leaked documents from a unhappy Google employee back in early August. More information has surfaced, thanks to additional documents leaked to the site. Whatever surveillance/censorship concerns Dragonfly posed are far more pronounced in the wake of these new leaks.

Back in July, New York State took the historically-unprecedented step of voting to kick Charter Communications (aka Spectrum) out of New York State. Regulators say the company misled them about why the company repeatedly failed to adhere to merger conditions affixed to the company's $86 billion acquisition of Time Warner Cable and Bright House Networks, going so far as to falsify (according to the NY PUC) the number of homes the company expanded service to. The state has also sued the company for failing to deliver advertised broadband speeds, for its shoddy service, and for its terrible customer support.But the threat to kick Charter out of the state appears largely to have been a negotiation tactic, as the two sides are now purportedly making progress and engaging in "productive dialogue" as they attempt to hash out their differences. That's at least according to a Charter filing with the state PUC requesting a deadline extension obtained by Ars Technica:

The doctrine of qualified immunity was conjured up by the US Supreme Court in 1982 and victims of rights violations have been paying the price for more than three decades. The doctrine was created by the Court, not by Congress. This is an important distinction, especially since qualified immunity directly contradicts the liability Congress created as an avenue of redress for citizens.Congress specifically said anyone who uses governmental power to deprive others of rights can be sued.

This week, both of our top comments on the insightful side come from our post about Apple deleting purchased movies from people's devices after losing the rights. In first place, it's Gwiz responding to the idea that people should known they are only licensing digital content, not buying it:

Get your First Emojiment gear on Teespring »This week, we launched our latest line of Techdirt Gear in our Teespring store. It uses Twitter's free Twemoji icon set, licensed under CC-BY 4.0, to bring you an emoji-fied version of the First Amendment to the US Constitution. Some people might just see random symbols, but others will see some very important words. Indeed, it serves as a litmus test for how well people know their civil rights! The First Emojiment is available on t-shirts, hoodies, mugs and stickers — get yours today!And for the true pro, we also recently launched our Free Speech Pro-Tip gear to help correct a particularly pernicious myth about the First Amendment:Get your Free Speech Pro-Tip gear on Teespring »

Fifty years ago – in September 1968 – the legendary rock band Led Zeppelin first performed together, kicking off a Scandinavian tour billed as the New Yardbirds.The new, better name would come later that fall, while drummer John Bonham’s death in 1980 effectively ended their decade-defining reign. But to this day, the band retains the same iconic status it held back in the 1970s: It ranks as one of the best-selling music acts of all time and continues to shape the sounds of new and emerging groups young enough to be the band members’ grandchildren.Yet, even after all this time – when every note, riff and growl of Zeppelin’s nine-album catalog has been pored over by fans, cover artists and musicologists – a dark paradox still lurks at the heart of its mystique. How can a band so slavishly derivative – and sometimes downright plagiaristic – be simultaneously considered so innovative and influential?How, in other words, did it get to have its custard pie and eat it, too?As a scholar who researches the subtle complexities of musical style and originality as well as the legal mechanisms that police and enforce them, such as copyright law, I find this a particularly devilish conundrum. The fact that I’m also a bassist in a band that fuses multiple styles of music makes it personal.A pattern of ‘borrowing’For anyone who quests after the holy grail of creative success, Led Zeppelin has achieved something mythical in stature: a place in the musical firmament, on its own terms, outside of the rules and without compromise.When Led Zeppelin debuted its eponymous first album in 1969, there’s no question that it sounded new and exciting. My father, a baby boomer and dedicated Beatles fan, remembers his chagrin that year when his middle school math students threw over the Fab Four for Zeppelin, seemingly overnight. Even the stodgy New York Times, which decried the band’s “plastic sexual superficiality,” felt compelled, in the same article, to acknowledge its “enormously successful … electronically intense blending” of musical styles.Yet, from the very beginning, the band was also dogged with accusations of musical pilfering, plagiarism and copyright infringement – often justifiably.The band’s first album, “Led Zeppelin,” contained several songs that drew from earlier compositions, arrangements and recordings, sometimes with attribution and often without. It included two Willie Dixon songs, and the band credited both to the influential Chicago blues composer. But it didn’t credit Anne Bredon when it covered her song “Babe I’m Gonna Leave You.”The hit “Dazed and Confused,” also from that first album, was originally attributed to Zeppelin guitarist Jimmy Page. However in 2010, songwriter Jake Holmes filed a lawsuit claiming that he’d written and recorded it in 1967. After the lawsuit was settled out of court, the song is now credited in the liner notes of re-releases as “inspired by” Holmes.‘Dazed and Confused’ by Jake Holmes.The band’s second album, “Led Zeppelin II,” picked up where the first left off. Following a series of lawsuits, the band agreed to list Dixon as a previously uncredited author on two of the tracks, including its first hit single, “Whole Lotta Love.” An additional lawsuit established that blues legend Chester “Howlin’ Wolf” Burnett was a previously uncredited author on another track called “The Lemon Song.”Musical copyright infringement is notoriously challenging to establish in court, hence the settlements. But there’s no question the band engaged in what musicologists typically call “borrowing.” Any blues fan, for instance, would have recognized the lyrics of Dixon’s “You Need Love” – as recorded by Muddy Waters – on a first listen of “Whole Lotta Love.”Dipping into the commons or appropriation?Should the band be condemned for taking other people’s songs and fusing them into its own style?Or should this actually be a point of celebration?The answer is a matter of perspective. In Zeppelin’s defense, the band is hardly alone in the practice. The 1960s folk music revival movement, which was central to the careers of Baez, Holmes, Bredon, Dixon and Burnett, was rooted in an ethic that typically treated musical material as a “commons” – a wellspring of shared culture from which all may draw, and to which all may contribute.Most performers in the era routinely covered “authorless” traditional and blues songs, and the movement’s shining star, Bob Dylan, used lyrical and musical pastiche as a badge of pride and display of erudition – “Look how many old songs I can cram into this new song!” – rather than as a guilty, secret crutch to hold up his own compositions.Why shouldn’t Zeppelin be able to do the same?On the other hand, it’s hard to ignore the racial dynamics inherent in Led Zeppelin’s borrowing. Willie Dixon and Howlin’ Wolf were African-Americans, members of a subjugated minority who were – especially back then – excluded from reaping their fair share of the enormous profits they generated for music labels, publishers and other artists.Like their English countrymen Eric Clapton and The Rolling Stones, Zeppelin’s attitude toward black culture seems eerily reminiscent of Lord Elgin’s approach to the marble statues of the Parthenon and Queen Victoria’s policy on the Koh-i-Noor diamond: Take what you can and don’t ask permission; if you get caught, apologize without ceding ownership.Led Zeppelin was also accused of lifting from white artists such as Bredon and the band Spirit, the aggrieved party in a recent lawsuit over the rights to Zeppelin’s signature song “Stairway to Heaven.” Even in these cases, the power dynamics were iffy.Bredon and Spirit are lesser-known composers with lower profiles and shallower pockets. Neither has benefited from the glow of Zeppelin’s glory, which has only grown over the decades despite the accusations and lawsuits leveled against them.A matter of motivesSo how did the band pull it off, when so many of its contemporaries have been forgotten or diminished? How did it find and keep the holy grail? What makes Led Zeppelin so special?I could speculate about its cultural status as an avatar of trans-Atlantic, post-hippie self-indulgence and “me generation” rebellion. I could wax poetic about its musical fusion of pre-Baroque and non-Western harmonies with blues rhythms and Celtic timbres. I could even accuse it, as many have over the years, of cutting a deal with the devil.Instead, I’ll simply relate a personal anecdote from almost 20 years ago. I actually met frontman Robert Plant. I was waiting in line at a lower Manhattan bodega around 2 a.m. and suddenly realized Plant was waiting in front of me. A classic Chuck Berry song was playing on the overhead speakers. Plant turned to look at me and mused, “I wonder what he’s up to now?” We chatted about Berry for a few moments, then paid and went our separate ways.Brief and banal though it was, I think this little interlude – more than the reams of music scholarship and journalism I’ve read and written – might hold the key to solving the paradox.Maybe Led Zeppelin is worthy because, like Sir Galahad, the knight who finally gets the holy grail, its members’ hearts were pure.During our brief exchange, it was clear Plant didn’t want to be adulated – he didn’t need his ego stroked by a fawning fan. Furthermore, he and his bandmates were never even in it for the money. In fact, for decades, Zeppelin refused to license its songs for television commercials. In Plant’s own words, “I only wanted to have some fun.”Maybe the band retained its fame because it lived, loved and embodied rock and roll so absolutely and totally – to the degree that Plant would start a conversation with a total stranger in the middle of the night just to chat about one of his heroes.This love, this purity of focus, comes out in its music, and for this, we can forgive Led Zeppelin’s many trespasses.Aram Sinnreich, Associate Professor of Communication Studies, American University School of CommunicationThis article is republished from The Conversation under a Creative Commons license. Read the original article.

I'll forgive the average reader here if they cannot recall the post we did nearly a year and a half ago about a trademark dispute between Worldwide Entertainment Group Inc. of Florida and Adria MM Productions Ltd. of Croatia. It's by far my favorite trademark story ever. It has all the hallmarks of a typical trademark bullying story that we would cover: from a fairly generic term ("Ultra") in a really broad industry (music festivals) being licensed for use overseas in Europe by Worldwide to Adria, only to have the former ratchet up its licensing fee and control demands over the trademark it had on the term "Ultra." Pretty standard fare, even when we get to the part where Worldwide sends Adria notice that it is in breach of the licensing agreement and demanding the stoppage of all use of the term "Ultra."But where this all turned into my favorite trademark story ever was when Adria MM sued Worldwide, stating this:

Some things most of us keep in our vehicles is considered by at least one police officer to be tools of the drug trade. Literal tools. Of the literal drug trade. I guess. The bad news is even more of us keep these items at home. We're drowning in contraband, it appears. Those of us with attached garages should just brace ourselves for early morning no-knock raids.This decision [PDF] by the Sixth Circuit Appeals Court starts as so many qualified immunity cases do: with a pretextual stop.

Following the decision earlier this week of the EU Parliament to vote for the destruction of the open web by putting in place some pretty awful copyright proposals, people began highlighting more and more problems with the bill. Most of the focus before the vote had been on two particular articles, Article 11 and Article 13. But there are many other problems in the Directive as well -- it was just getting to be overwhelming to get into the weeds on all of them. One area of concern was in Article 12, which included a special new form of copyright for sporting events. Specifically, with no debate or discussion the legal affairs committee of the EU Parliament added in text saying that sporting event organizers would gain absolute control over recording, sharing and presenting any film clips -- even those that would otherwise be deemed legal in other copyright contexts. And yes, the law implies that if you're at a sports event, you can't even film anything from your own seat as that is reserved solely to the event organizers.Incredibly, after the vote approving the directive, reporter Emanuel Karisten of the Swedish publication Breakit, asked Voss about this and Voss gave a fairly astounding answer, stating that "this was kind of a mistake" and that "no one had been aware of this." Later he states that he didn't know it was in there and he'll have to fix it:

The White House may be preparing an executive order for the President, pushing for investigations of "bias" at social media companies. It is not definite, but someone has leaked us a draft two page executive order. We're not releasing the draft because, despite it coming directly from someone in the White House, others have insisted it's not an accurate document, even as the approach to some extent mirrors the announced plans of the DOJ to investigate bias. Another reason we're not releasing the document itself is that we're quite aware of reports saying that there are attempts to find "leakers" in the White House, and one common method of doing so is to put small indicators in documents. We cannot guarantee that this document is not such a document and thus will be reporting on the basic concept of what's in this draft, without revealing the full document.But, to be clear, if this document is accurate, it would almost certainly lead to a huge First Amendment fight, which it seems likely the companies would win.Obviously the issue of social media and supposed political bias has been a big topic in DC lately -- including with the President -- despite the near total lack of actual evidence to support these claims. Yes, there is evidence of people being kicked off these platforms... but there is no evidence that the reasons have anything to do with political bias (people of all political stripes have been removed from these platforms). And, yes, there is also evidence that employees at many internet companies may lean one way politically, but that too is overstated and says nothing about how the platforms actually work.Recently, we noted that the DOJ and various state Attorneys General were talking about using antitrust law against social media companies over bias, and explained in fairly great detail why that would almost certainly run afoul of the First Amendment and a whole long list of Supreme Court cases detailing how the government cannot compel speech of this nature.And that's where this executive order, as leaked, would almost certainly run into huge First Amendment issues. It tries to hide these behind antitrust claims, saying that it's about ensuring competition and preventing the exercise of market power that "harms consumers, including through the exercise of bias." The Executive Order itself doesn't hide the intent, as "bias in online platforms" is specifically in the title. Basically, the order would task the White House with "investigating" social media platforms for bias and then seek to use antitrust actions (or pass it off to the DOJ or FTC) to punish companies that show loosely defined "bias." The document takes as default that any kind of "bias" on major internet platforms should be taken as anti-competitive (which seems incredibly questionable) and then also requires that various agencies give the President a report on how to "address" social media bias.I have trouble seeing how this could possibly be constitutional under the First Amendment, as it is, quite explicitly, the government trying to regulate speech, and clearly does not fall into any of the exceptions to the First Amendment. It's possible this executive order will never actually become anything -- perhaps someone in the White House will prevent it from moving forward (it's also clear that the draft I've seen is not complete, as there are still notes about what's being worked on). But the fact that this is even being considered is certainly notable.I asked Ken White, well known around here as a former Assistant US Attorney and current First Amendment lawyer what he thought of the draft and he noted that the document seemed so weakly put together that he had a hard time believing it was something anyone was seriously considering, though, he noted "with this administration it's very difficult to tell." He also noted that it appeared to be "more posturing than substance" and designed to "preach to the choir" rather than anything serious. As for the substance, he noted that while it asserts that "bias" is a violation of antitrust law, that's not at all accurate:

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The EU really seems quite hellbent on absolutely destroying the open internet. Just as the EU Parliament was voting to approve the EU Copyright Directive, requiring that much of the internet be licensed and curated, rather than open for anyone, the EU Commission decided to move forward with an awful idea that it had first proposed earlier this year: that social media companies must disappear "terrorist content' within one hour.Back when this was proposed, we pointed out how this was holding companies to an absolutely impossible standard... and it appears that the EU really just doesn't give a fuck, because they're super excited about putting this into practice:

We've noted repeatedly that however bad Facebook has been on privacy (pretty clearly terrible), the broadband industry has traditionally been much, much worse. From AT&T's efforts to charge consumers more just to protect their privacy, to Verizon getting busted for covertly tracking users around the internet without telling them (or letting users opt out), this is not an industry that respects you or your privacy. That's before we even get to their cozy, often mindlessly-loyal relationship with intelligence and law enforcement.As such, it's kind of amusing to note that these are the same companies now trying to position themselves as the gatekeepers of all of your private data online. As security expert Brian Krebs notes, AT&T, Verizon, T-Mobile and Sprint (the latter two of which will likely soon be one company) are cooking up something dubbed "Project Verify," which would let end users eschew traditional website passwords -- instead authenticating visitors by leveraging data elements unique to each customer’s phone and mobile subscriber account, including location, "customer reputation", and device hardware specs.This video by the carriers offers a little more detail:The problem, as Krebs is quick to note, is that giving more private data to companies with an utterly abysmal track record on privacy might not be a particularly bright idea:

More evidence of the NSA's abuse of its surveillance powers has surfaced, thanks to a FOIA lawsuit by the EFF. To date, the EFF has secured 73 FISC opinions as the result of this lawsuit and is still fighting for the release of six opinions the government has chosen to withhold entirely.One of the opinions released to the EFF shows the NSA's frequent assertions about proper minimization, careful deployment of surveillance techniques, and supposedly robust oversight are mostly false. The NSA abuses its powers and withholds evidence of its abuses from the FISA court, undermining the system of checks and balances meant to keep the agency in line.The opinion [PDF] embedded below is just one of several recently acquired by the EFF, but it still shows plenty of surveillance power abuse by the agency. Aaron Mackey of the EFF summarizes the contents of the order:

So, it's been nearly three months since Valve announced that it was going with a new policy for the Steam gaming platform that was supposed to basically be hands off, with only "illegal" and "trolling" games being disallowed from the Steam store. As with all things Steam, the end result of what was supposed to be a transparent and simple policy turned into a shitshow, with developers having no idea whether once-banned games would suddenly be allowed, and some developers that were contacting Valve to get their games included were being told that their bans were still in place. There must have been a fair amount of frustration in the developer community, because Steam last week attempted to clear up its vague language in its policy. This attempt to clear things up, of course, cleared up basically nothing.And, yet, the policy marches on. For all of the frustration on the part of developers, it appears as though we have our very first real tangible result, so let's all celebrate the first 100% uncensored adult visual novel title making it to Steam in the coming week or so.

No police department should ever have to explain why they tased an 87-year-old woman. It's not that the public doesn't deserve an explanation. It's that there is seldom any reason to deploy force against 5'2" 87-year-old. But that's what Chatsworth Police Chief Josh Etheridge had to do after one of his officers tased the woman during a "confrontation" behind the local Boys and Girls Club.

For quite some time now we've been talking about French regulators and their ridiculous assertion that Google must apply its "Right to be Forgotten" rules globally rather than just in France. Earlier this week, the company presented its arguments to the EU Court of Justice who will eventually rule on this issue in a way that will have serious ramifications for the global internet.

The leak of text messages sent and received by Paul Manafort's daughter might be old news, but new wrinkles keep appearing. Originally obtained by hackers, the texts have been perused by journalists, resulting in articles discussing Manafort's apparent complicity in violence in Ukraine. The full set of texts has been around since at least early 2017, but no searchable database of the texts themselves existed publicly.Apparently, Wikileaks had the full dataset in searchable form but refused to release it. FOIA/transparency activist Emma Best decided to call out Wikileaks on its perceived duplicity (the dumping of the Podesta/DNC emails but not the release of the Manafort text messages) and made the database publicly available. As she wrote then, the likelihood of the text message dump leading to further issues for Manafort's daughter was minimal, given that it had been more than a year since it became public knowledge their phones had been hacked.Now, more than two months after Emma Best made the texts available in searchable form, a lawyer representing Manafort's daughter is demanding the removal of Best's tweets linking to her post about the text message database. This summary of events comes from Joseph Cox at Motherboard:

Yet another vindication of Ed Snowden. Soon after some of the documents he leaked as a whistleblower revealed that the UK's GCHQ was conducting mass surveillance, a variety of human rights groups filed complaints with the European Court of Human Rights. It's taken quite some time, but earlier today the court ruled that the surveillance violated human rights, though perhaps in a more limited way than many people had hoped.At issue were three specific types of surveillance: bulk interception of communications, sharing what was collected with foreign intelligence agencies, and obtaining communications data (metadata) from telcos. The key part of the ruling was to find that the bulk interception of communications violated Article 8 of the Human Rights Act (roughly, but not exactly, analogous to the US 4th Amendment). It was not a complete victory, as the court didn't say that bulk interception by itself violated human rights, but that the lack of oversight over how this was done made the surveillance "inadequate." The court also rejected any claims around GCHQ sharing the data with foreign intelligence agencies.In short, the court found that bulk interception could fit within a human rights framework if there was better oversight, and that obtaining data from telcos could be acceptable if there were safeguards to protect certain information, such as journalist sources. But the lack of such oversight and safeguards doomed the surveillance activity that Snowden revealed.

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A few weeks back, we explained why claims of political bias in moderation by tech companies was not accurate at all. I recognize this has upset people who seem to have staked their personal identity on the idea that big internet companies are clearly out to get them, but we like to deal in facts around here. Of course, soon after that post went up, PJ Media editor Paula Bolyard put out an article -- using what she admits isn't anything close to a scientific study -- to make dubious claims of bias in Google searches for Trump news.There were all sorts of problems with her methodology (including using Google search, rather than Google News, and using an extraordinarily sketchy ranking of how liberal or conservative certain publications were). But the bigger issue, as we noted in another post this week was that it showed a fundamental misunderstanding of how search engines work. It was not -- as some commenters who clearly did not read the article claimed -- that algorithms are perfect and show no bias (because they obviously do). But that the search algorithm boosts sites that are more popular, and if you looked at the sites that Bolyard's test showed as appearing in her search results were... larger sites. And those included typically "conservative" news sites such as the Wall Street Journal and Fox News. In other words, Google wasn't biasing based on political viewpoint, but on popularity of the news site itself. Which... is how Google has worked since basically the beginning.Unfortunately, our President did what our President does, and took Bolyard's confusing mess (as amplified by Lou Dobbs on Fox News) and claimed that it was now proven that Google biases its search results against conservatives. He's since posted a video claiming that Google didn't link to a live stream of his state of the union address -- a claim that has already been proven to be 100% false.Of course, that is leading people to (as they should!) start to do research on whether or not there really is some political bias in search results -- which is a good thing. We should investigate that, but it should be done rigorously. Digital Third Coast is pushing some research claiming to show no bias based on Google search autocomplete, but that methodology strikes me as equally dubious to Bolyard's study.A much more interesting, and scientifically rigorous study, however can be found at ScienceDirect, in a study by Efrat Nechustai and Seth Lewis entitled What kind of news gatekeepers do we want machines to be? Filter bubbles, fragmentation, and the normative dimensions of algorithmic recommendations. Lewis recently discussed the results on Twitter. The results don't fully get at whether or not the algorithm is biased, but it does throw a lot of cold water on the idea that the Google News (separate from Google search) algorithm creates filter bubbles that drive people deeper and deeper into their own echo chambers.But what the study does seem to suggest, is that Google tends to recommend big traditional news organizations most of the time. That... shouldn't be a surprise. I am confident that Trump's loudest supporters will argue that this is a sign of political bias on its own, because they believe whatever nonsense he spews about the NY Times and CNN being "fake news," but that's silly. Those publications may not be great, and I have serious concerns about the way they cover news, but the issue is not one of political bias. And the evidence again just seems to suggest that these news organizations are large and extremely popular, which is why Google recommends them.Some others are attempting to research this topic as well, and they all seem to be coming up empty when it comes to any evidence of actual political bias on Google. The site Indivigital tried to look more closely at the sites that were analyzed in the study that Trump tweeted about and found... that the sites that were dubbed "left wing" tended to get a lot more inbound links. And, as you hopefully know, much of Google's ranking algorithm is based on inbound links. So if there's "bias" it's the "bias" of basically everyone else on the internet to more frequently link to those sites. It also found that the supposedly "left wing" sites published a lot more -- again, leading to more links and more attention.

If you hadn't noticed, the much-hyped internet of things is comically broken. WiFi connected Barbies that spy on your kids, refrigerators that cough up your Gmail credentials, and "smart" televisions that watch you as often as you watch them are all now the norm. And while this has all been the focus of a lot of humor (like the Internet of shit Twitter feed), security experts have been warning for a while about how introducing millions of security flaws into millions of homes and businesses is, sooner or later, going to come back and bite us all on the ass.As security analysts like Bruce Schneier have pointed out, few people in this dance of dysfunction really care, so things tend to not improve. Customers often aren't even aware (or don't care) that their device has been compromised and hijacked into a DDOS attacking botnet, and hardware vendors tend to prioritize sales of new devices over securing new (and especially older) gear.Efforts to regulate the problem away are the option for many. That's what California lawmakers are considering with the recent passage of SB-327, which was introduced in February of last year, passed the California Senate on August 29, and now awaits signing from California Governor Jerry Brown. If signed into law, it would take effect in early 2020, and mandates that "a manufacturer of a connected device shall equip the device with a reasonable security feature or features," while also taking aim at things like default login credentials by requiring devices auto-prompt users to change their usernames and passwords.But as you might expect, critics of the bill state it's not likely to actually fix the problem, in part because Chinese gearmakers (a major source of the problem) can just ignore the law. Others state California's solution is superficial at best, given that just "adding security features" doesn't really help if the technology is just fundamentally unsecure on the skeletal level:

It's always fascinating to me when people try to condense the complex and varied reasons why people sometimes behave badly into a single factor for blame. This is especially true online. A commonly misdiagnosed "problem" is anonymity, despite the fact that studies show anonymous online users tend to be better behaved in online flame wars, than those using their real names.British Member of Parliament Lucy Powell has come up with her own simplistic and ridiculous explanation for why people are bad online and has a plan to do something about it. In her mind, the real problem is... "large secret online groups." She's written a whole Guardian opinion piece on it, as well as given a Parliamentary speech on it, not to mention making the rounds to snippet of the actual proposal (the full bill hasn't been placed online as far as I can tell as I type this), it appears that she wants to ban secret groups over 500 members, requiring that for any online group that has more than 500 members, the moderators and administrators would be legally required to publish public information about the group (she insists not the members), but also "to remove certain content." What kind of content isn't explicitly stated, which should set off all sorts of censorship alarm bells.In her speech to Parliament, she mentions racism, revenge porn, jokes about the holocaust, and conspiracy theories as the types of content she's concerned about. Also... um... bad advice for autistic parents? It seems kind of all over the map. Which is why most people find this all so ridiculous. First off, you can't stop people from saying stupid stuff. That's just asking for the impossible. But it's even more ridiculous to argue that non-public groups of over 500 individuals now suddenly are going to be legally liable for censorship of amorphous "bad content."In both her speech and the op-ed, she insists that she's just trying to make these groups have the same responsibilities as news organizations:

A few years ago, corporate sovereignty -- officially known as "investor-state dispute settlement" (ISDS) -- was an indispensable and important element of trade deals. As a result, it would crop up on Techdirt quite often. But the world is finally moving on, and old-style corporate sovereignty is losing its appeal. As we reported last year, the US Trade Representative, Robert Lighthizer, hinted that the US might not support ISDS in future trade deals, but it was not clear what that might mean in practice. The Canadian Broadcasting Corporation (CBC) site has an interesting article that explores the new contours of corporate sovereignty:

Here's one way to avoid the lengthy, often-futile process of recovering your assets after they've been seized by the government via civil asset forfeiture. The Charleston Gazette-Mail reports law enforcement suddenly decided to return $10,000 to the couple it seized it from, but only after being asked to comment on the forfeiture. (h/t C.J. Ciaramella)

Earlier this summer, we discussed a policy shift at Warner Bros. regarding how it was enforcing its Harry Potter intellectual property that has resulted in the bullying of several fan conventions and gatherings. Events long left alone by WB to enjoy and promote the Potter franchise were suddenly getting threat letters and communications from the studio, informing them that all references to the franchise had to be removed. Many festivals, including one in Philadelphia, chose to simply shut down.Others are going on, however, although perhaps not entirely as originally planned. Now, one might say, they are going on generically planned.

For the last few years, numerous states have been pushing so-called "right to repair" bills, which would make it easier for consumers to repair their own products and find replacement parts and tools. Not surprisingly, many tech companies have been working overtime to kill these efforts including Apple, which has tried to argue that Nebraska's right to repair bill would turn the state into a nefarious playground for hackers. Opposition also includes Sony and Microsoft, both of which enjoy a repair monopoly on their respective video game consoles.Whether coming from Apple, Sony, or Microsoft, opposition to these bills usually focuses on the three (false) ideas: the bills will make users less safe, somehow "compromise" intellectual property, and open the door to cybersecurity theft.Much of the current right to repair fracas began with the lowly tractor. More specifically, it started when John Deere decided to ban anything but "unauthorized repairs," inadvertently turning countless ordinary citizens into technology policy activists. A lengthy EULA the company required customers to sign back in 2016 forbids the lion-share of repair or modification of tractors customers thought they owned, simultaneously banning these consumers from suing over "crop loss, lost profits, loss of goodwill, loss of use of equipment … arising from the performance or non-performance of any aspect of the software."As ordinary farmers hack their way around these restrictions just to make a living (often utilizing Ukranian firmware), California recently joined the attempt to codify the right to repair into law. But that effort was derailed this week with the news that California's biggest farmer lobbying organization decided to sell out its constituents and support a watered down version of California's proposal.Back in February, the Equipment Dealers Association promised a few concessions in a bid to stall legislation; including making repair manuals, diagnostic tech and other service tools widely available to farmers by 2021. They did not, however, address efforts to hamstring third-party part sales, the use of DRM to lock down devices, and continued to battle right to repair legislation in numerous states. The California Farm Bureau (which again is supposed to represent the farmers on this issue) this week struck a "concession" deal with the Equipment Dealers Association that isn't much of a concession.In fact, said "new" concession closely mirrors things the industry had already voluntarily agreed to:

Once again, copyright and the digitization of everything means you no longer "own" what you've "bought." I thought we'd covered all this a decade ago when Kindle owners discovered that, even though they'd "purchased" copies of the ebook of George Orwell's 1984, their books had been memory holed, thanks to Amazon losing a license. After there was an uproar, Amazon changed its system and promised such things would never happen again. You would think that other online stores selling digital items would remember this and design their systems not to do this -- especially some of the largest.Enter Apple and its infamous iTunes store. On Twitter, Anders G da Silva has posted a thread detailing how three of the movies he "purchased" have now disappeared and how little Apple seems to care about this:

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Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

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For much of the last year ISPs like Comcast have been successfully lobbying to eliminate most meaningful oversight of their broadband monopolies. On the federal level, that has involved convincing Ajit Pai to neuter the FCC's authority over ISPs, then shoveling any remaining authority to an FTC that's ill-equipped to actually do the job. On the state level, that has involved lobbying Pai (who again was happy to oblige) to include language in the FCC net neutrality repeal attempting to "pre-empt" (read: ban) states from also protecting consumers.These efforts haven't gone well so far. Charter (Spectrum) tried to lean on this language to recently wiggle out of a New York State lawsuit over terrible speeds and poor service, only to have the courts reject its argument. And lawyers have argued that when the FCC abdicated its authority over ISPs, it ironically also eroded its rights to tell states what they can do, spelling trouble for any ISP plans to kill state level net neutrality rules.Undaunted, Pai's FCC continues to insist it has this authority anyway. Last week, the US Court of Appeals for the 8th Circuit ruled (pdf) that Minnesota's state government cannot regulate VoIP phone services offered by Charter and other cable companies because VoIP is an "information service" under federal law. Charter had sued the state PUC after it filed a complaint noting that Charter had split off its voice service from its regulated wholesale telecommunications business, dubbing it an "information service" in a bid to avoid state oversight.Ajit Pai was quick to take a victory lap in a statement praising the ruling (pdf), insisting that the court victory portends success in the FCC's goal of stopping states from protecting net neutrality:

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]: