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

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

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

The innovator's dilemma, and the concept of disruptive innovation, is an idea that sits at the core of a lot of what we talk about here at Techdirt, and it has been embraced by different people in very different ways — though not always good ones. This week, for our final episode of 2018, we've got returning guest James Allworth joining the podcast to talk about the growth of disruptors into incumbents, and how they respond to the next wave of disruptors.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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

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

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

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

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

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

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

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

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

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

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We've talked a lot in the past about the concept of soft corruption. These are the kinds of practices that are most likely legal, and possibly even common among the political class, but which absolutely stink of corruption to the average American. And that's a huge problem, not just because of the general ethical questions raised by such soft corruption, but because it creates a cynical American public that does not trust politicians to adequately represent their interests.Here's just one example. It appears that a bunch of industry lobbyists have been receiving the following email:If you can't read it, it says the following:

The CBP is searching more devices than ever and ramping up an "extreme vetting" program that includes biometric scans, demands for social media account passwords, and more intrusive searches across the board. As the number of device searches continues to increase, the agency's technical chops and and internal oversight aren't keeping pace.That's according to recently-released Inspector General's report [PDF], which finds little to like about the CBP's search processes and policies, other than they occasionally manage to catch criminals attempting to enter the US. The CBP's Office of Field Operations is supposed to be taking charge of device searches, ensuring they're done effectively and intelligently. So far, it appears the OFO has taken a hands-off approach to management, resulting in bad practices and worse security.

While we've spent some time here talking about the emergence of eSports and online gaming generally, it's safe to say that South Korea was one of the trailblazers in this space. This has led to a remarkable ecosystem in the country for online gaming and competitive gaming. But it's also led to South Korea introducing some fairly problematic laws at the request of the gaming industry. For instance, criminalizing cheating in online gaming is very much a thing in South Korea, though this is actually done by making it illegal to break a game's ToS, which nobody reads.Now, however, South Korea is going a much more targeted and direct route by criminalizing "boosting", the practice of experienced players of a particular game contracting their services to help less-able gamers to climb the level ranks.

We've got a double winner on the insightful side this week, with That One Guy taking on a pair of bad excuses from law enforcement. In first place, it's his response to the Kansas Supreme Court ruling that officers can search houses without a warrant if they say they smelled marijuana:

Five Years AgoThis week in 2013, we learned about how the NSA and GCHQ infiltrated World Of Warcraft and Second Life, and about how the NSA was to track people. Most big tech companies were calling for major surveillance reform while AT&T was rebuffing criticism from shareholders — but the government's plan for reform seemed mostly cosmetic and ineffectual. Law enforcement was also ramping up its collection of cellphone data and use of Stingray devices, though for the time being the feds were accepting a ruling saying they need a warrant to put GPS devices on cars. But the feds definitely didn't want to share their FISC legal filings with companies suing them over surveillance, and Keith Alexander was insisting he couldn't think of any way to keep Americans safe without bulk metadata collection.Ten Years AgoThis week in 2008, Warner Music was pushing for a music tax and we were explaining why that's a bad idea. Universal was continuing to wage war on Redbox, online video sites were harming themselves with geographical restrictions, and a hairdresser in New Zealand got billed for playing the radio in her shop. In the DRM world, Nokia's flopped "Comes With Music" scheme for devices had its DRM cracked, while Ubisoft finally decided to drop DRM on Prince of Persia in a highly passive-aggressive way.Fifteen Years AgoThis week in 2003, the deluge of online music offerings got even sillier with Coca Cola launching its own download store, even while across the industry customers were starting to question the standard pricing (and it was becoming clear that the real money was in selling hardware). Meanwhile, the RIAA hired ATF chief Bradley Buckles to head up its anti-piracy efforts, while a court was telling MPAA head Jack Valenti that he doesn't get to decide whether studios can send out DVD screeners. But Hollywood was winning on other fronts, trying to push its anti-camcorder laws to the national level, and doing well in its fight for a broadcast flag because consumer electronics companies weren't united in their opposition.

The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

Gamers of a certain age will be very familiar with the insanity from roughly 2010 that was Sony's reaction to having its Playstation 3 console hacked to return functionality that Sony initially advertised and then rescinded via a firmware update. While PS3 owners cheered on the hack, as many of them loved the function that Sony took away, Sony instead began a full on legal war with the Geohot, the hobbyist who gave users what they wanted. The whole thing was a complete mess that made Sony look awful and ultimately resulted in the Playstation 4 of course not having the function that users wanted, and the console being much, much more locked down at release.I'm going to take a moment again to remind you that this all occurred only roughly 8 years ago. Why? Well, because Sony recently released its Playstation Classic retro console... and apparently made it very, very easy to hack.

The FCC this week voted yes on a new proposal the agency says will help combat the scourge of robocalls, but critics and consumer groups say opens the door to wireless carriers being able to censor text message campaigns they don't like, or SMS services that may compete with their own offerings.In a 3-1 party line vote, the FCC approved (pdf) redefining text messages as an "information service," therefore freeing such services from FCC oversight. In its announcement, the agency was quick to insist that this was done specifically to help carriers better fight robocalls and robotexts without worrying about running afoul of government rules:

It's great to know the FBI wants encryption broken so it can forensically molest any devices in its possession to find the mother lode of culpatory evidence these devices always contain. ("Always," you ask? The FBI irritatedly taps the word "always" repeatedly in response.)The reason this is such good news is that the FBI can't even manage to reliably extract content from phones it issues to agents and other personnel. If you can't expertly handle data migration/storage from phones in your control at all times, how badly are you going to bungle forensic evidence extraction at scale if the government ever green lights encryption backdoors?The DOJ Inspector General has just released a report [PDF] detailing its investigation of missing text messages sent by two agents at the center of a Congressional hearing about supposed biased behavior during the FBI investigation of Hillary Clinton and Mueller's investigation of Donald Trump. Agents Peter Strzok and Lisa Page exchanged text messages expressing their dislike of Trump and made some comments suggesting they would do something to harm his presidential chances. Critics believed this showed these agents -- if not the agency itself -- were guided by political bias when investigating Trump's ties with Russia.Maybe there was more to this than there first appeared to be. Thousands of text messages from the agents' devices went missing -- a gap that stretched from December 2016 to May 2017. The Inspector General's office used forensic tools to recover roughly 19,000 text messages from the two phones. The culprit appears to be standard operating procedure rather than a deliberate attempt to destroy evidence.

Former sheriff (and ongoing blight on the state of Arizona) Joe Arpaio has decided to sue a handful of new agencies for defamation. The slightly-overwrought press release from FreedomWatch (and founder Larry Klayman) alleges defamation per se on the part of CNN, the Huffington Post, and Rolling Stone and claims these three publications caused $300.5 million in damage to Arpaio's otherwise impeccable reputation.Here's Freedom Watch's zesty summation of the lawsuit:

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We've written in the past about things like "super injunctions" in the UK and elsewhere that often put a huge and near absolute gag order on writing about a famous person enmeshed in some sort of scandal, and apparently Australia has such a thing as well -- and it's now scaring off tons of publications from writing about the fact that George Pell, the Vatican's CFO and often called the "3rd most powerful person in the Vatican" was convicted on all charges that he sexually molested choir boys in Australia in the 1990s. However, the press is barred from reporting on it based on one of those gag orders. The Herald Sun in Australia did post a brilliant, Streisand Effect-inducing front page display about how it was being censored from publishing an important story:

Last year, FCC boss Ajit Pai repeatedly hyped the creation of a new "Broadband Deployment Advisory Council" (BDAC) purportedly tasked with coming up with creative solutions to the nation's broadband problem(s). Unfortunately, reports just as quickly began to circulate that this panel was little more than a who's who of entrenched telecom operators with a vested interest in protecting the status quo. The panel has yet to really offer up a meaningful proposal, but it has been rocked by several resignations due to cronyism, and at least one member who was arrested for fraud.As the FCC looks to expand the council's charter for another few years, the panel itself has been pushing a plan that pretty clearly highlights the cronyism intentionally inherent in its design. More specifically, the panel has been pushing the FCC to adopt a new system that urges states to tax Netflix and Google to fund rural broadband deployment:

As numerous Techdirt posts have explained, there are two really problematic areas with the EU's proposed copyright directive. Article 13, which will require pretty much every major online site to filter uploaded content, and Article 11, the so-called "link tax", more formally known as an "ancillary copyright". It's yet another example of the copyright ratchet -- the fact that laws governing copyright only ever get stronger, in favor of the industry, never in the other direction, in favor of the public. We know for sure that Article 11 will be a disaster because it's already been tried twice -- in Germany and Spain -- and failed both times.Despite that fact, the German and Spanish laws are still on the law books in their respective countries. VG Media, the German collective management organization handling copyright on behalf of press publishers and others lost no time in bringing a case against Google. It alleged that the US Internet company had used text excerpts, images and videos from press and media material produced by VG Media's members without paying a fee.Alongside the issue of whether Google did indeed infringe on the new law, there is another consideration arising out of some fairly obscure EU legislation. If the new German ancillary copyright law is "a technical regulation specifically aimed at a particular information society service", then it would require prior notification to the European Commission in order to be applicable. The German court considering VG Media's case asked the Court of Justice of the European Union, (CJEU), the EU's top court, to decide whether or not the link tax law is indeed a "technical regulation" of that kind. As is usual for CJEU cases, one of the court's Advocates General has offered a preliminary opinion before the main ruling is handed down (pdf). It concludes:

For those of us who have fallen in love with the world's most personally infuriating sport, golf, the name The St. Andrews Links Golf Course is of course quite notable. The famed "Cathedral of Golf" also happens to be located in a town of the same name, St. Andrews in Scotland. St. Andrews is a fairly common term in the naming of locations and famous landmarks. Despite this, The Saint Andrews Links went to the EU's Intellectual Property Office to request it be granted a trademark for "St. Andrews" in roughly every category, including broadly in apparel and sports goods. When that request was denied in 2016 on grounds that location names have high bars to clear to get trademarks and are therefore relatively rarely granted, St. Andrews Links took its case to Luxembourg on appeal.There, the EU General Court dismissed the appeal, arguing again that "St. Andrews" is primarily a reference to the town of St. Andrews, not to any provider of the type of goods that St. Andrews Links wanted to hold trademarks for.

Today was the latest set of "Trilogue" negotiations for the EU Copyright Directive, between the EU Council, the EU Commission and the EU Parliament. When the trilogues were first scheduled, this was the final negotiation and the plan was to hammer out a final agreement by today. As we've been reporting lately, however, it still appeared that there was massive disagreement about what should be in Article 13 (in particular). And so, today's meetings ended with no deal in place, and a new trilogue negotiation set for January 14th. As MEP Julia Reda reports, most negotiators are still pushing for mandatory upload filters, so there's still a huge uphill battle ahead -- but the more regulators realize how disastrous such a provision would be for the public, the better.Also worrisome, Reda notes that after the Parliament rejected Article 13 back in July, MEP Axel Voss agreed to add an exception for small businesses that helped get the proposal approved in September. Yet, in today's negotiations, he agreed to drop that small business exception, meaning that if you run a small platform that accepts user generated content, you might need to cross the EU off your list of markets should Article 13 pass.One other important thing. Earlier this week, we noted that the TV, film and sports legacy companies were complaining that if Article 13 included a basic safe harbor (i.e., rules that say if you do certain things to remove infringing content, you won't be liable), then they no longer wanted it at all -- or wanted it to just be limited to music content. That suggested there might be some separation between the film/TV/sports industries and the music industries. But, no. Right before the trilogues, the legacy recording industries released a similar letter:

For years we've noted how the FCC's broadband availability maps are just comically bad. If you'd like to confirm that take, you can just plug your home address into the agency's $350 million broadband availability map and watch as entire ISPs and speed availability are largely hallucinated. This is a problem that never gets fixed, largely because the nation's entrenched broadband providers (and the politicians paid to love them) have a vested interest in pretending that the US broadband industry isn't just an aggressive hodge-podge of broken monopolies and duopolies nickel-and-diming the hell out of captive customers.Senators have been bitching about the maps a little more lately as states vie for FCC Mobility Fund Phase II Auction subsidies, which will dole out $4.5 billion to under-connected states over the next decade. Back in August, Montana Senator Jon Tester went so far as to suggest that said maps "stink" and that somebody should have their "ass kicked" for the terrible data the FCC uses for both subsidies and policy.Last Friday the Sisyphean quest to stop our maps from sucking turned an interesting corner, when the FCC announced (pdf) it was finally launching an investigation into whether "one or more" mobile carriers submitted false coverage data to the FCC. The FCC appears to be responding to a complaint (pdf) filed earlier this year by the Rural Wireless Association (RWA), which stated that Verizon was "grossly overstating" the company's 4G LTE broadband coverage in its filings with the FCC.FCC boss Ajit Pai likes to talk a lot about how he's "closing the digital divide," despite the fact his policies (like killing net neutrality or weakening the very definition of the word "competition") generally tend to make problems of broadband availability and affordability worse. But the pressure coming from states as they clamor for their chunk of subsidies appears to have finally forced Pai (whose post-FCC political aspirations are fairly obvious) to take action:

Arkansas state rep Johnny Rye is in galaxy mind mode. He's introduced a bill that aims to stop "censorship" by social media platforms by allowing the government to compel speech. I'm sure the irony is lost on Rye. But it's probably not the only thing sailing over Rep. Rye's head. (h/t Sarah McLaughlin)What Rye is trying to stop is social media companies moderating their own platforms. He appears to feel conservatives are being "censored" by Facebook, Twitter, etc. and thinks rolling over the First Amendment and Section 230 immunity is going to cure this perceived ill.Holy hell, the bill [PDF] is a mess. I'm going to have to quote from it at length because it's the only way any discussion of it can achieve semi-coherence. Here's the gist of it, from David Ramsey of the Arkansas Times:

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This seems to be the year for awful internet regulation by the EU. At least there were some redeeming qualities in the GDPR, but they were few and far between, and much of the GDPR is terrible and is creating real problems for free speech online, while simultaneously, undermining privacy and giving repressive governments a new tool to go after critics. Oh, and in the process, it has only made Google that much more dominant in Europe, harming competition.And, then, of course, there's the still ongoing debate about the EU Copyright Directive, which will also be hellish on free speech. The entire point of Article 13 in that Directive is to wipe away the intermediary liability protections that enable websites to host your content. Without such protections, it is not difficult to see how it will lead to a widespread stifling of ideas, not to mention many smaller platforms for hosting content exiting the market entirely.But here's the thing: both of those EU regulations are absolutely nothing compared to the upcoming EU Terrorist Regulation. We mentioned this a bit back in August, with the EU Commission pushing for the rule that all terrorist content must be taken down in an hour or face massive fines and possible criminal liability. Earlier this year, Joan Barata at Stanford wrote a compelling paper detailing just how extreme parts of the proposed regulation will go.Among the many questionable bits of the Terrorist Regulation are that it will apply no matter how small a platform is and even if they're not in the EU, so long as the EU claims they have a "significant number" of EU users. Also, if a platform isn't even based in the EU, part of the proposal would require the companies to hire a "representative" in the EU to respond to these takedown demands. If the government orders a platform to take down "terrorist" content, a platform has to take it down within an hour and then set up "proactive measures" to stop the same content from ever being uploaded (i.e., mandatory filters).Oh, and of course, this mechanism for rapid and permanent censorship based solely on the government's say so, has... a ridiculously vague "definition" of what counts as "terrorist content."

The Ajit Pai FCC's attacks on net neutrality have received ample attention. Less talked about is the fact that the attack on net neutrality was just one part of a much broader effort to eliminate what was already pretty tepid oversight of one of the least liked and least competitive tech sectors in America.The Pai FCC's Orwellian-named "Restoring Internet Freedom" order not only killed net neutrality rules, it dramatically rolled back FCC authority over big ISPs like Comcast, shoveling any remaining authority to an FTC ISP lobbyists know full well lacks the authority or attention span for telecom oversight. In addition to that, the FCC (again at big telecom's behest) has set about trying to claim states can't protect consumers either. With neither competition nor state or federal oversight keeping natural monopolies in line, it shouldn't take a degree in genetics to ferret out the potential pitfalls.One of the key arguments underpinning most of the telecom sector's lobbying shenanigans of late involves one central claim: that state or federal efforts to hold giant ISPs accountable somehow violates Comcast and other ISPs' First Amendment rights. You'll recall ISPs tried to claim that net neutrality somehow violated ISPs' free speech rights, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument rather silly.The courts didn't agree with broadband providers then, but in his dissenting opinion during those earlier court battles new Supreme Court Justice Brett Kavanaugh did. Susan Crawford over at Wired offers up a solid piece explaining why, with Kavanaugh now positioned in the highest court of the land, ISPs are very eager to start pushing this argument more forcefully in the months and years to come:

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Athletic clothing maker Under Armour has graced our fair pages a few times in the past, always for being on exactly the wrong side of the trademark equation. Between trying to torpedo tiny Christian companies like Armor & Glory, and ensuring that every member of the public is aware that its own executives don't have a sense of humor that they are aware of by suing Ass Armor, the mega-company has been quite busy making sure the entire world knows that only it is allowed to use the word "Armour." Notably important in all of this is that the company is exactly wrong in this claim, as trademark law nearly always comes down to whether customers will be confused by the use of words and trade dress, and it is not a platform for a single company being able to lock up a fairly common word.This is a lesson that apparently hasn't stuck for the folks at Under Armour, however, as the company has recently fired off a C&D letter to another tiny clothier, Cascade Armory.

Predatory publishing -- the pay-for-play practice that allows anyone to have their research published as soon as the check clears -- may end up costing a professor his job. Derek Pyne, associate professor of economics at British Columbia's Thompson Rivers University, has managed to turn his own campus against him simply for telling the uncomfortable truth.His 2017 paper, The Rewards of Predatory Publication at a Small Business School, exposed the ugly side effects of the constant pressure on researchers and academics to be published. "Publish or perish," the saying goes. And if you can't get published by someone who thinks your research is worth publishing, get published by someone who thinks everyone with enough cash on hand deserves to be published.What Pyne found was schools rewarding publication, whether or not the publication was bought and paid for.

So we already knew numerous reporters, the GAO, and the New York State AG's office are already looking into who was behind the millions of bogus comments that plagued the FCC's net neutrality repeal. And we've already noted how the Ajit Pai FCC has been trying its very best to hinder those inquiries, whether we're talking about the way that it has been blocking and stalling on journalist FOIA requests, or actively ignoring numerous, previous inquiries from law enforcement.The FCC's efforts to obfuscate the culprit by refusing to share data on this subject may have just become more... complicated. Over the weekend, Daily Beast reporter Kevin Collier noted that two additional AG's offices (Massachusetts and Washington, DC) -- and the FBI -- have also started digging into those fake comments as well:

Last week, as the last round of "trilogue" negotiations were getting underway in the EU on the EU Copyright Directive, we noted a strange thing. While tech companies and public interest groups have been speaking out loudly against Article 13, a strange "ally" also started complaining about it: a bunch of TV, movie and sports organizations started complaining that Article 13 was a bad idea. But... for very different reasons. Their concerns were that regulators had actually finally begun to understand the ridiculousness of Article 13 and had been trying to add in some "safe harbors" into the law. Specifically, the safe harbors would make it clear that if platforms followed certain specific steps to try to stop infringing works from their platform, they would avoid liability. But, according to these organizations, safe harbors of any kind are a non-starter.Those same groups are back with a new letter that's even more unhinged and more explicit about this. The real issue is that they recently got a ruling out of a German court that basically said platforms are already liable for any infringement, and they're now afraid that Article 13 will "soften" that ruling by enabling safe harbors.

DMCA takedown abuse is nothing new. But it normally involves bogus takedown requests claiming copyright violations. TorrentFreak has uncovered a new form of abuse that involves the DMCA, but unlike normal copyright claims, doesn't allow the target to contest the claims.

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Have you heard that all of the opposition to the EU Copyright Directive and its hugely problematic Articles 11 and 13 is really being driven by Google lobbying? Most of you probably realized this was nonsense, but it now turns out that not only was the lobbying almost entirely dominated by the legacy copyright players, but a key plank of their lobbying campaign was to falsely allege that all opposition was just Google.If you've been paying attention at all to the crazy fights over the EU Copyright Directive, you may have heard some claims being passed around that it's somehow "Google" lobbying heavily against the bill. Indeed, all over Twitter, that's the talking point from tons of EU Copyright Directive supporters. After the EU Parliament put the brakes on the bill back in July, I even saw a former RIAA exec (who has since blocked me on Twitter, so I can't show it to you) tweet that this was a clear perversion of the "will of the people" by Google's corporate lobbying. Of course, it's hilarious for that to come from an ex-RIAA exec, who was heavily involved over the past 3 decades in pushing through all sorts of protectionist, anti-public, anti-musician legislation and trade agreements.But... it's a talking point. And it's one that lots of people have jumped on. Digital Music News, who is always quick to restate the recording industry's talking points, claimed that Google spent more than $36 million lobbying over Article 13. Billboard Magazine published a similar claim. Various music industry groups, in what appeared to be closely coordinated messaging, all started blaming Google and "the tech giants" for any opposition to the EU Copyright Directive -- which, mind you, would change the fundamental ways in which the internet works. Yet, in their minds, all of the opposition came from the internet giants.Here's Geoff Taylor from BPI:

So for years we've been pointing out that Verizon's attempt to pivot from grumpy old telco to sexy new Millennial ad brand hasn't been going so well. Oddly, mashing together two failing 90s brands in AOL and Yahoo, and renaming the coagulated entity "Oath," didn't really impress many people. The massive Yahoo hack, a controversy surrounding Verizon snoopvertising, and the face plant by the company's well-hyped Go90 streaming service didn't really help.This week, Verizon was forced to acknowledge that Oath was now effectively worthless, at least in full context of what Verizon paid for it, and the company's past claims that the company would be taking on Facebook and Google in the online advertising wars for a generation to come:

UK spies are changing their minds. Rapidly. Sure, bulk data collection is cool. But you know what's really cool? Mass interference with electronic devices.

We've been discussing Iowa State University's bold attempt to twist itself into a knot over its trademark policy for some time now. This all started when the school attempted to bow at the alter of certain Iowa state government reps to disallow a pro-marijuana alumni student group from using school iconography. For its efforts, the alumni student group beat the school in court on First Amendment grounds, eventually resulting in a $600k judgement against the school. Rather than learning its lesson, the school reacted to all of this by rewriting its trademark policy for student groups, pulling back permission of all kinds for groups to use the school's name and symbols. This, predictably, led to a full on revolt by students, with all kinds of groups refusing to associate themselves with the school at all. The student government, meanwhile, pointed out that the policy was written with zero input from students or student representatives.In other words, ISU managed to piss off its own students by trying for iron grip control for... reasons?With the revolt in full swing, you might have thought that perhaps this would be the thing that caused ISU to wake up and reverse course. Noooooooope. Instead, the school's administration simply penned what reads like a canned letter to its students about the trademark policy, explaining its reasoning for doing whatever the fuck it wants and brushing student concerns aside.

A year ago, Techdirt wrote about the interesting economics of bike-sharing services in China. As the post noted, competition is fierce, and the profit margins slim. The real money may be coming from gathering information about where people riding these bikes go, and what they may be doing, and selling it to companies and government departments. As we warned, this was something that customers in the West might like to bear in mind as these Chinese bike-sharing startups expand abroad. And now, the privacy expert Alexander Hanff has come across exactly this problem with the Berlin service of the world's largest bike-sharing operator, Mobike:

We've got another panel discussion from the Lincoln Network's Reboot conference this week, all about the law on everyone's minds lately: Section 230 of the CDA. The debate includes law professor Eric Goldman, the EFF's Corynne McSherry, and Dr. Jerry A. Johnson from National Religious Broadcasters, offering up a wide spectrum of opinions on Section 230 and political bias.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.