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Over the last year or so, a key focus of Facebook's has been to battle what it calls "coordinated inauthentic behavior." While the phrase may sound vaguely Orwellian, I actually appreciate the thinking behind it. It's one thing to say you're going after "fake accounts" or "propaganda" or "trolls," but that language is imprecise, and certainly doesn't provide much clarity for what Facebook is actually targeting. Indeed, using vague language continues to be a massive problem in all sorts of content moderation challenges. So, instead, Facebook focused on "coordinated inauthentic behavior," which is much more definable, and also neatly encapsulates a lot of activity that most people all agree is at least somewhat problematic in a variety of contexts. I've also appreciated some of the actions that Facebook has taken to try to stop or prevent such "coordinated inauthentic behavior."What I don't appreciate is a highly questionable lawsuit Facebook filed on Friday, again supposedly targeting coordinated inauthentic behavior on its platforms: in particular fake likes and fake followers. Now, let's be clear: no one is suggesting that services that provide fake likes or fake followers are a good thing. They are scams and they are designed to mislead people. I think Facebook has every right to try to delete such fake likes and fake followers from its platforms.What I'm less sure of, however, is if Facebook should be able to sue the companies (and the individuals behind those companies) for creating such a service. But that's what Facebook has done. The complaint argues that it's a CFAA violation (and a violation of California's version of the CFAA). If you don't recall, the CFAA (the Computer Fraud and Abuse Act) was the law that was originally designed to go after malicious hackers, but was written in such broad and vague language -- regarding things like "unauthorized access" and "exceeding authorized access" -- that it's been used in all sorts of questionable ways, including not obeying a web site's terms of service. It's been referred to as "the law that sticks" when no other law can be used against "vaguely icky" activity done on a computer.One of the most annoying things over the past few years is seeing big internet companies regularly try to use the CFAA and expand what it covers in ways that are extraordinarily broad and could lead to real problems down the road. Facebook has actually done this for years, with a big case being the time it sued a site, Power Ventures, which helped users aggregate all their various social network info. This was not "hacking" in any real sense, and the access was "authorized" by the end user, but Facebook didn't like it and argued that because it sent Power a cease and desist letter, that any further access violated the CFAA. Unfortunately, the courts have agreed with Facebook, setting a dangerous precedent.And, now, Facebook has gone back to the well, arguing that setting up fake likes and fake followers also violates the CFAA:

You might recall that Verizon found itself under fire last summer after it throttled the data connection of California firefighters as they were busy battling the Mendocino Complex Fire. When the firefighters complained to Verizon, the company didn't immediately put the restrictions on hold; instead they attempted to upsell the providers to a faster plan. While not technically a net neutrality violation, the repeal of the net neutrality rules (and FCC authority over ISPs) did impede the first responders' ability to effectively contest the restrictions. Verizon also ultimately admitted that the move was in direct violation of the company's own rules.Last week, California took the first steps toward passing a law that would prevent wireless carriers from imposing such restrictions on first responders during an emergency. Not too surprisingly, wireless carriers (who've effectively been dictating all federal telecom policy the last few years) weren't too keen on that idea:

Although the terrible fire at Notre Dame cathedral in Paris destroyed the roof and spire, the main structure escaped relatively unscathed. Thoughts now are on repairing the damage, and rebuilding the missing parts. France has announced that it will hold an international competition to redesign the roofline. As the Guardian points out, the roof was ancient, but the spire was not:

Things are getting interesting. For the past few months, we've been discussing the emergence of a new player in the digital games distribution business, in which Valve's Steam platform has been dominant for roughly a decade. Epic Games' platform has begun gobbling up new AAA game releases, signing them to 6 month exclusivity deals. Those deals have generally angered the majority of gamers, leading to the kind of review-bombing of already-released titles on Steam that Valve has previously pledged to prevent.It has appeared for all the world that a new era of game exclusivity has begun in the PC gaming space. This is not a development that gamers like. Nobody wants to find out that a PC game that by nature cannot be hardware exclusive has suddenly become distributor exclusive. But even as the outrage has grown, most have seen this as a business model competition, with Epic trying to ramp up its user numbers by signing these deals, which themselves are signed by offering developers a flat 88% of the revenue generated, whereas Steam only offers anywhere from 70%-80%.The majority of reports are somewhat slanted to make Epic the bad guy in all of this. After all, it is the one introducing exclusivity into the industry. In that light, this is as much a PR battle as a business battle. And if that's true, then Epic boss Tim Sweeney just fired off one of the great PR counterattacks the gaming industry has ever seen.

New York City's Department of Investigation can only do so much. The rest is up to the NYPD. The DOI made 145 recommendations in 2018 -- covering everything from use of force reporting to sex crime investigations. To date, the NYPD has implemented less than half of those. It has completely rejected 31 recommendations, a third of those covering proposed changes to its use of force reporting.Oversight is only as good as the agency being overseen. The NYPD doesn't care much for accountability. So, it's chosen to ignore the things it doesn't like and half-ass its way towards compliance with recommendations it feels it might be able to live with.Most of the rejections come from changes to use of force reporting. The NYPD would prefer no use of force reporting. The DOI would prefer 100% accountability in this area. A "compromise" has been reached. From the report [PDF]:

There are so many issues related to what's referred to (misleadingly, of course) as "intellectual property" that it's difficult to cover them all. For a while I'd been meaning to write about the attempt to "raise up" trade secret law to the federal level and what kinds of problems that might cause. Professor Eric Goldman, not surprisingly, was covering this all along, noting that the Defend Trade Secrets Act from 2016 was the "biggest IP development in years" (even if Congress, in a little twist, made sure it was not officially an "intellectual property" law -- which means that Section 230 immunity still applies).Of course, it usually takes a few years for the real effects of new laws to be felt. In a fascinating, if troubling article, economist Ike Brannon, notes that we may be on the verge of a new raft of patent trolling-esque legal fights over loosely defined "trade secrets," that have the potential to be much, much worse than patent trolling. At least with patent trolls, there's an actual patent with actual definitions (even if they're a mess) that can be looked at to see if there's infringement. The world of trade secrets is a lot more murky.Brannon points to a crazy recent case, involving a title insurance company Title Source (now Amrock) who sued a data analytics firm called HouseCanary over a claim that HouseCanary breached a contract the two companies had to deliver "an advanced, automated home valuation model." HouseCanary countersued, claiming that Title Source used its proprietary trade secrets to develop its own home valuation model. As Brannon points out, most people thought little of these counterclaims... but a funny thing happened when it got to court:

For years, advocates for the non-wealthy public have put forward plans to simplify the tax-preparation process by having the IRS pre-prepare a tax filing with the information it already has, sending it to citizens, and allowing those citizens to either sign and return it or do their own tax preparation if they think there are errors. Several politicians have put versions of this plan forward, including Elizabeth Warren. The idea is that, for the vast majority of Americans, the IRS already has all the information it needs for the tax filing. Why make most people do tax prep when they don't have to?Well, for just as many years, the companies that make money by doing this tax prep work have lobbied heavily in Congress to keep this from becoming law. Intuit, makers of TurboTax software, has been particularly active on this front, with novel arguments that amount to, "But if you make this law, then we'll make less money." When that messaging became a PR disaster, the company tricked a bunch of mouth-pieces to say all this for it.Now, if all of that seems like shady shit, you ain't seen nothing yet. One of the ways companies like Intuit hand-wave concerns that its lobbying efforts are coercing the poor and middle class to pay for tax prep that is so simple it should be free is by pointing out that it entered into an agreement with the IRS to offer their own free-to-file programs for anyone that makes less than $66k in a given year. While that's true, ProPublica has a nice write up of just how far Intuit in particular goes to hide this program from the very public it's supposed to be serving.

Over and over and over again we've pointed out that content moderation at scale is impossible to do well -- in part because at such scale, there are bound to be a huge number of errors, even if the percentage of errors is relatively small. We've also pointed out that a lot of the content decisions that moderators face fall into a terrible gray area, where it's not easy to craft scalable rules that can be applied fairly across the board -- in part because context matters and it's impossible to scale the reviewing and understanding of context.Motherboard recently had an excellent article detailing one manifestation of this problem, by noting that trying to apply rules across the board leads to some problematic results:

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Since some conservatives are convinced social media companies are trying to turn their platforms into liberal paradises, weird and ignorant noises are being made by a handful of government figures. I blame Ted Cruz.Last year's Facebook hearing was marked/marred by Republicans incorrecting [h/t n-gate] each other about Section 230 immunity and its supposed reliance on Twitter, Facebook, et al maintaining their position as "neutral public forums." Section 230 does not require this, but it's become somewhat of a DC urban legend at this point. Since this highly-inauspicious beginning, the Senator from Texas has pitched a "Fairness Doctrine" for the internet and aligned himself with Rep. Louie Gohmert to misunderstand the internet as much as possible.Back at the state ranch, a member of the Texas Senate has decided he's going to force social media platforms to be neutral. Bryan Hughes has crafted a bill that would allow the state's attorney general to sue Twitter, etc. for booting people off their platforms. There's a big "if" in the bill that pretty much ensures it will never be enforced, even if it somehow manages to survive a Constitutional challenge.

In October 2017, a Louisiana federal court tossed a lawsuit brought by an anonymous cop against:

Last summer, 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 it 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.While the threat was largely unprecedented, there have been indications that this was largely just a negotiations tactic by the state. However sincere the threat was, it appears to have worked. Charter Spectrum and state regulators have struck a new deal (you can find the settlement here, pdf) that will keep the company in NY State, but will require it to actually, you know, try:

Our first place winner on the insightful side this week is Stephen T. Stone with a response to one commenter's silly conspiracy theory about commenters' accounts:

Five Years AgoThis week in 2014, James Clapper was busy giving speeches to students to try to prevent any admiration of Ed Snowden, and working hard to stop members of the intelligence community from talking to pretty much anyone. Homeland Security was warning parents that typical teenage behavior might be a sign of terrorist radicalization, while a court was telling the DOJ it must release the memo that described the justificiation for a drone strike on a US citizen.Meanwhile, we were wondering why the US government was getting involved in the Aereo case (on the broadcast industry's side of course), though at least it appeared at the time that the SCOTUS justices understood the gravity of the case, even as so many people persisted in describing Aereo's compliance with copyright law as circumvention of copyright law.Ten Years AgoThis week in 2009, while the entertainment industry was doing its best to celebrate the recent verdict against the Pirate Bay, some folks in Sweden noticed that the judge in the case appeared to have ties to the copyright lobby, while journalists were beginning to realize that Google can do anything The Pirate Bay could. Meanwhile in the UK, British Telecom was voluntarily blocking the site as an act of unnecessary self-regulation.We also took a look back at ten (failed) years of the V-Chip, and witnessed the end of an era when Yahoo announced it was killing off Geocities.Fifteen Years AgoThis week in 2004, we witnessed both slightly good and worryingly bad omens regarding the future of patent reform — but we also saw the birth of the EFF's excellent patent-busting program. A lawsuit over liability for Napster's investors was headed to court, while the RIAA was ditching its absurd amnesty program for file sharers, various groups were trying to automate the booting and blocking of file sharers — though there were early signs of a shift in piracy from file sharing to stream ripping. We also saw the first person ever charged under a seven-year-old internet stalking law.

More details are coming to light about California's opacity activists. Faced with impending transparency, a handful of law enforcement agencies decided to fire up the shredders rather than risk turning over police conduct records to the public under the new public records law.Inglewood's police department was given the go-ahead to shred years of responsive documents last December in a council meeting that produced no record of discussion on the matter or the council's determination.Public records requests filed after the new law went into effect in January uncovered moves made by the Fremont city council to help local police rid themselves of records the public might try to request. The city lowered the retention period for officer-involved shooting records from 25 years to ten and allowed the department to destroy 45 years of police misconduct records it had decided to hold onto until it became inconvenient for it to do so.Darwin BondGraham of The Appeal has discovered even more record destruction by California law enforcement agencies occurring ahead of the law's implementation.

Minnesota appears poised to be the first state to pass "right to repair" legislation taking aim at corporate efforts to monopolize repair. The grass-roots technology movement in support of these bills began in rural America, where the draconian DRM embedded in John Deere tractors made repairing them a costly nightmare for many farmers. The movement has also been prodded along thanks to efforts from companies like Sony, Microsoft, and Apple to effectively ban third-party repair of games consoles and phones; a move that not only restricts consumer freedom and drives up consumer costs, but creates additional unnecessary waste.California recently became the 20th state to eye such legislation, though Minnesota appears likely to be the first to actually pass such a law. Minnesota's law has passed through committee and awaits a vote in the Minnesota House, and if approved (which seems likely) would take effect in early 2020.Not too surprisingly, both John Deere and Apple lobbyists have descended upon Minnesota to prevent that from happening. For its part, John Deere doubled down on the primary (and false) argument most of these companies are making; namely that if you let consumers and authorized third-party shops repair consumer tech, you're putting consumers at risk:

It's the trademark story that simply won't go away and in which the legal system appears to get everything wrong. The saga of the San Diego Comic-Con's legal adventures against what was formerly the Salt Lake Comic Con (now rebranded as FanX Salt Lake Comic Convention) has been brutally frustrating. The whole thing started when the SDCC decided somewhat out of the blue to begin enforcing a trademark it had been granted for "Comic-Con" against the Utah production. The trademark original sin of this story began all the way back with the USPTO, which absurdly granted the SDCC its trademark for a purely descriptive term, one which is only unrecognizable as such due to the shortening of the second word from "convention" to "con." Despite that, the trademark suit brought against the Salt Lake Comic Con somehow ended in a win by jury for the SDCC, which was awarded only $20k. In the trial, SLCC had pointed out several times that the term "comic-con" was both descriptive in nature and clearly had been abandoned by SDCC, evidenced by the long list of other comic conventions going by the term carried out throughout the country.Deep breath.Well, after getting its five-figure award for a lawsuit that ran the course of nearly half a decade, SDCC realized that it sure would suck to be stuck with its $4 million in legal fees at the end of the day, so it petitioned the court to force SLCC/FanX to pay those fees. Oh, and in accordance with the jury's finding that there was trademark infringement, it asked the court as well to ban FanX from calling itself a comic con, a "comic convention", or any phonetic versions of those terms. Such a request itself validates the claim that SDCC's trademark is descriptive. If a comic convention cannot call itself a "comic convention" due to an existing trademark, that trademark is descriptive, full stop.Unfortunately, because the world doesn't make sense any longer, the judge in the case did issue an injunction against FanX calling itself a "Comic-Con" and ordered FanX to pay SDCC $4 million in attorney's fees.

In the fall of 2017, we wrote about a, well, bananas copyright lawsuit filed by costume maker "Rasta Impsta" against K-Mart, alleging that it was selling an infringing banana costume.That case quickly settled (so, it's likely K-Mart just paid off Rasta Imposta to go away), but around the same time the company had sued a few other companies over similar costumes, including one operation called Kanagroo Manufacturing, for making a similar banana costume. As we had noted at the time of the Kmart case, historically, there's been no recognized copyright in costumes, since articles of clothing are considered uncopyrightable. Except, in a truly awful Supreme Court ruling in 2017, the court swung open the door to clothing/costume copyrights, by arguing that certain elements in a piece of clothing could be considered copyrightable as "design" rather than as a "useful article" (which is not subject to copyright).And, thus, last year a District Court judge issued an injunction against Kangaroo Manufacturing, arguing that its banana costume likely infringed on the banana costume of Rasta Imposta. The court, not surprisingly, cites that awful Star Athletica Supreme Court ruling to argue that elements of the banana costume are separable and thus can be covered by copyright. Rasta argued that the following elements were separable and could be covered by copyright:

The "War on Cops" is a belief system that's currently being preached to the converted. Evidence abounds that it's safer to be a cop now than it's ever been, and yet, officers still claim they're being targeted and use these unfounded fears to obtain military equipment and qualified immunity rulings.We've covered how safe police work is here before. But the narrative coming from the law enforcement community refuses to change, despite evidence to the contrary. Research is piling up, exposing law enforcement agencies' claims of cops being targeted by a vengeful populace as a self-serving lie. At best, these claims are merely wrong. But given the easy access to law enforcement officer death data, a refusal to see the stats for what they are is incredibly disingenuous at best.Adding yet more documentation to the pile is a study released by researchers from three American universities. The study [PDF] shows policing just keeps getting safer.

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Two recent crashes involving Boeing 737 Max jets are still being investigated. But there is a growing view that anti-stall software used on the plane may have caused a "repetitive uncommanded nose-down", as a preliminary report into the crash of the Ethiopian Airlines plane puts it. Gregory Travis has been a pilot for 30 years, and a software developer for more than 40 years. Drawing on that double expertise, he has written an illuminating article for the IEEE Spectrum site, entitled "How the Boeing 737 Max Disaster Looks to a Software Developer" (free account required). It provides an extremely clear explanation of the particular challenges of designing the Boeing 737 Max, and what they tell us about modern software development.Airline companies want jets to be as cost-effective as possible. That means using engines that are as efficient as possible in converting fuel into thrust, which turns out to mean engines that are as big as possible. But that was a problem for the hugely-popular Boeing 737 series of planes. There wasn't enough room under the wing simply to replace the existing jet engines with bigger, more fuel-efficient versions. Here's how Boeing resolved that issue -- and encountered a new challenge:

We've been saying for ages now that content moderation at scale is literally impossible to do well. It's not "difficult." It's impossible. That does not mean that companies shouldn't try to get better at it. They should and they are. But every choice involves real tradeoffs, and those tradeoffs can be significant and will upset some contingent who will have legitimate complaints. Too many people think that content moderation is so easy that just having a a single person dedicated to reviewing content can solve the problem. That's not at all how it works.Professor Kate Klonick, who has done much of the seminal research into content moderation on large tech platforms, was given the opportunity to go behind the scenes and look at how Facebook dealt with the Christchurch shooting -- an event the company was widely criticized over, with many arguing that they took too long to react, and let too many copies of the video slip through. As we wrote in our own analysis, it actually looked like Facebook did a pretty impressive job given the challenges involved.Klonick, however, got to find out much more from the people actually involved, and has written up an incredible behind the scenes look at how Facebook dealt with the video for the New Yorker. The entire thing is worth reading, but I did want to highlight a few key points. The article details how Facebook has teams of people around the globe who are ready to respond and deal with any such "crisis," but that doesn't make the decisions they have to make any easier. One thing that's interesting, is that Facebook does have a policy that they should gather as much information as possible before making a call -- because sometimes what you see at first may not tell the whole story:

A few months back Steven Spielberg had a "get off my lawn" moment in demanding that films from Netflix and other streaming services be excluded from Oscar contention. The sentiment isn't uncommon among old-school Hollywood types who see traditional film as somehow so sacred that it shouldn't have to change or adapt in the face of technological evolution. It was the same sentiment recently exhibited by the Cannes film festival when they banned Netflix films because Netflix pushed back against absurd French film laws (which demand a 36-month delay between theatrical release and streaming availability).We'll note that shortly after Spielberg's rant, he could be found pushing streaming services at Apple, which suggests a dash of...inconsistency in his arguments. Regardless, Academy members don't appear swayed by Spielberg's request, and have announced that current rules for Oscar contention will remain unchanged. More specifically the Academy will retain "rule two," which says a film is eligible to be considered for an Oscar so long as it has a seven-day run in an Los Angeles area theater. So sayeth the Academy:

Five years ago, the Massachusetts Supreme Judicial Court got out ahead of the tech curve by declaring that state law enforcement would need warrants to seek historical cell site location info. This predated the US Supreme Court's Carpenter decision by four years. The state court's prescient decision was compelled by the state's Constitution, which provides greater protections than the United States' Constitution.But no matter which Constitution was used, the court found that the Third Party Doctrine shouldn't cover CSLI because, while everyone uses cellphones to communicate with each other, not a single cellphone user carries one around just to create tracking data for the government.A recent decision by the same court expands protections for cellphone users -- going further than Carpenter's protection of historical cell site location info. As the ACLU's Kade Crockford points out, real-time acquisition of location info now comes with a warrant requirement. This covers more than service provider-assisted "pings." It also covers one of law enforcement's favorite toys.

You will hopefully recall a few posts we had previously written about Blizzard pointing its considerable legal guns at fan-run World of Warcraft servers. In 2016, and again in 2018, Blizzard issued takedown notices and legal threats for two fan-run servers that were running the "vanilla" version of WoW that came out way back in 2004. With the nostalgia fad in full swing, fans of the game were interested in going back to its roots. Blizzard does not offer any vanilla experience of this sort, so fans of the game got together and offered one for themselves. Blizzard got both instances shut down.But in those cases, Blizzard argued that the vanilla product competed with the current iteration of the game. What if there had been no current iteration? What if World of Warcraft had simply shut down, with Blizzard no longer offering any way to play any version of it?Well, that's exactly the situation NCSoft finds itself navigating, as it recently came to light that a smallish group of enthusiasts for MMO City of Heroes had been hosting a server for the game that had been completely shut down in 2012. Perhaps the most surprising part of the story is that the folks running the server kept it private and mostly secret for something like six years. Perhaps the least surprising part of the story is that, when word eventually got out about it, pretty much everyone went into full freak out mode.

A few months back, we wrote about the concern that Spotify buying Gimlet Media and supposedly betting big on podcasts could signify the end of the open era of podcasts. The fear was that Spotify would ramp up the effort to put many podcasts behind its paywall, and silo off certain podcasts. To be fair, Spotify would hardly be the first to do so. Stitcher has been doing something like that for years. But, of course, there are other players in the field as well. Over the last few months there's been a lot of buzz around a company called Luminary which has raised somewhere around $100 million to, in its own words, become the Netflix of podcasting.The idea behind Luminary is that it would offer up an app that could access all the usual podcasts via RSS feeds, but that it would also push people towards a monthly subscription fee that would include some "premium" ad free podcasts that it would develop itself. Over the past few months, it's been clear that Luminary has been putting that $100 million warchest to work, announcing premium podcasts from the likes of Trevor Noah, Malcolm Gladwell, Russell Brand, Adam Davidson, Manoush Zomorodi, Hannibal Burress, Conan O'Brien's team and a lot more.And this week the company finally launches, and apparently Spotify is blocking Luminary from offering all of its podcasts, even the ones that are freely available for everyone else from Gimlet:

Way back in 2012, the Washington Post published an article entitled 'Why Hollywood Is Doomed'. The thrust of the post is that the major movie studios were entirely too focused on restrictive copyright laws and draconian enforcement efforts when any simple look at Hollywood revenues would show that great movies make great amounts of money. That is the correlation that Hollywood should be focused on, not imaginary stances that every instance, or even a majority of instances, of piracy represents lost ticket revenue. The author's example of this was the original The Avengers movie, which is nearly universally accepted as just a fantastic flick, but which was also heavily pirated. Despite the piracy, the box office take worldwide for the movie was $1.5 billion, on a budget of $220 million. It was such a triumph, in fact, that it solidified the MCU series of movies that have made so much money that throwing actual numbers around at this point is pointless.Fast forward to today, when Avengers: Endgame is set to release in America this week, but where it was initially released in China. The strategy behind releasing to China first was explicitly to minimize the effects of piracy in that country. That strategy doesn't appear to have worked all that well, as the film is already on torrent sites ahead of the US release, due to several cam-versions of the film being created in China.

A rather surprising conclusion has been reached by the Sixth Circuit Court of Appeals: a common parking enforcement tool of the trade may be unconstitutional.Not everyone who's been ticketed multiple times for parking violations has made a federal case of it. Alison Taylor did, though, arguing that Saginaw, Michigan's practice of "chalking" tires was a violation of her Fourth Amendment rights. Taylor had been ticketed fifteen times when she decided to sue. The court sides with her, finding that marking tires to determine whether a vehicle has been parked too long constitutes not just a search, but an unreasonable one, under the Fourth Amendment.The Appeals Court opinion [PDF] leads off with an almost unforgivable pun:

So this post is going to touch on some issues that people get very emotional about, and I'm going to ask (probably pointlessly) that folks not focus on those issues, but on the issue that this post is actually trying to address: which is the ridiculous claim that Change.org can be sued for notifying users that statements in a petition "may be contested." A group called "Stop Antisemitism" put a petition on Change.org making a bunch of claims about CAIR, the Council on American-Islamic Relations. Many of those claims are ones that I would personally label as "highly questionable," or in some cases "downright misleading," and which some might say are simply "pure bullshit." The actual petition is supposedly a call to have Attorney General William Barr investigate CAIR. Not surprisingly, a bunch of people have complained to Change.org about this particular petition.Change.org decided to leave the petition up, but to append a "flag" at the top with the following text (in fairly small print):

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Maryland legislators -- pretty much all of them -- are congratulating themselves for making it easier to put kids in jail.

Big wireless carriers haven't been exactly honest when it comes to the looming fifth-generation wireless standard (5G). Eager to use the improvements to charge higher rates and sell new gear, carriers and network vendors are dramatically over-hyping where the service is actually available, and what it can actually do. Some, like AT&T, have gone so far as to actively mislead customers by pretending that its existing 4G networks are actually 5G. AT&T took this to the next level recently by issuing phone updates that change the 4G icon to "5GE" on customer phones, despite the fact that actual 5G isn't really available.This isn't just confusing consumers. Even Salesforce CEO Marc Benioff was misled this week by AT&T's gambit:

Has the DHS been trying to put the "IC" in ICE? A letter reviewed by Betsy Woodruff of The Daily Beast seems to indicate ICE is possibly now part of the "Intelligence Community," bringing it in line with the FBI, CIA, and others who have access to the NSA's collections.

The unsettled nature of how copyright law applies to public works of art like murals continues to be frustrating in the extreme. We've already seen examples of how this becomes an issue with mural artists whose work briefly appears in unrelated works, such as music videos, as those works are filmed in public. You guys remember public, right? It's that place we all get to coexist and enjoy together without constantly stomping on each other's necks over intellectual property rights. Except we don't anymore, as far too many artists believe that they can imprint their art in full view of the public and then disallow any commercial depiction of that public space.And if that doesn't sound idiotic to you, you need psychological care.This is once again at issue, as Mercedes has asked a court to make it clear that murals appearing on public walls in the background of a few promotional photos of their vehicles is fair use. This is in response to the very threatening noises made by four mural artists to their murals appearing in the background of some Instagram images. To be clear, Mercedes is suing only to ask for a court to declare images, like the following, fair use, not to attack the artists themselves.That partial mural in the background is one of the murals in dispute by the four artists. The mural is not the focus of the photo. It's not the subject of the photo. It's just that Mercedes took pictures of its vehicle driving around in public and those murals are in the background, partially depicted. Whatever that is, it sure doesn't sound like copyright infringement, and sure does sound a hell of a lot like fair use. Which is exactly what Mercedes is asking the court to declare.

Almost two years after Marcus Hutchins, a.k.a. MalwareTech, was detained by the FBI at the airport as he left a security conference in Las Vegas, the government finally has finally gotten its man.Charges were stacked and restacked over the past couple of years, as the government brought pressure to bear on Hutchins, who maintained his innocence right up to the point he signed the plea agreement [PDF]. Faced with possibility of spending several years in jail -- and evidence of his past, somewhat shadier exploits continuing to surface -- the man who saved the world from the Wannacry ransomware has pleaded guilty to two conspiracy charges. This means the government will be dropping the other eight charges against Hutchins, which will hopefully keep the researcher from spending several years in jail.

Stupid Patent of the MonthThere’s an increasing insistence from the highest echelons of the patent world that patent abuse just isn’t a thing anymore. The Director of the U.S. Patent Office, Andre Iancu, has called patent trolls—a term for companies that do nothing but collect patents and sue others—mere “monster stories,” and suggested in a recent oversight hearing that it was simply name-calling.But whatever you call them—trolls, non-practicing entities, or patent assertion entities—their business model, which involves stockpiling patents to sue productive companies rather than making goods or services, continues to thrive. It’s not hard to find examples of abusive patent litigation that make clear the threat posed by wrongly-issued patents is very real.Take, for instance, the patents that Lawrence Lockwood owns. These patents have been used to sue companies, large and small, for nearly 20 years now. Through his company Landmark Technologies and his earlier company PanIP, more than 100 lawsuits have been filed against businesses—candy companies, an educational toy maker, and an organic farm, to name a few. Because these companies engage in “sales and distribution via electronic transactions,” or use an automated system “for processing business and financial transactions,” Landmark says they infringe one of its patents.Those lawsuits don’t account for the other companies that have received licensing demands, but have not been sued in court. The numerous threats made with Lockwood’s patents are made clear both by news accounts of Lockwood’s activity, as well as the several small business owners that have reached out to EFF after being targeted by Lockwood’s patents.Patent Office records show Lockwood first applied for a patent in 1984, but his litigation ramped up after he acquired U.S. Patent No. 6,289,319 back in September 2001. The document describes an “automatic business and financial transaction processing system,” which Lockwood has interpreted to give him rights to demand licensing fees from just about any web-based business. Upon receiving that patent, Lockwood promptly sent 100 letters to various e-commerce businesses, demanding $10,000 apiece. When that didn’t work, he started filing lawsuits.For more than 15 years now, some companies have been paying thousands of dollars to license Lockwood’s patents rather than pay the legal fees required to defend themselves. Hiring attorneys to fight the patents would have cost far more, and Lockwood was keenly aware of this leverage.“Do they really want to spend $1 million and two years of their life to invalidate a patent they can license for a couple thousand dollars?” Lockwood said in 2003, speaking to a Los Angeles Times reporter about his lawsuits. “People get divorced over this stuff. They have strokes over this.”Sixteen years and more than 100 lawsuits later, stress and the expenses continue to mount for Lockwood’s targets. Through Landmark, Lockwood continues to demand money from businesses that provide basic e-commerce, although his price has gone up. Companies targeted by Landmark Technology patents in recent years have shown demand letters [PDF, PDF] indicating the company now demands around $65,000 to avoid a lawsuit.Not a single court has ever weighed in on the merits of Lockwood’s patent claim, according to court papers [PDF] filed in 2017 by one of his targets.Despite some court rulings that have helped cut back patent trolling over the years, nothing has slowed down Lockwood’s broad assault on Internet commerce. This year, through a newly created company called “Landmark Technology A,” Lockwood’s patent no. 7,010,508—related to the ‘319 patent that came before it—has been used to sue two more companies: a specialty bottle-maker in south Seattle, and an Ohio company that sells safety equipment.Based on Landmark’s history, it’s unlikely these two lawsuits will be the last.Continuations and ConsequencesHow did this happen, and how does it continue? Lockwood applied for his first solely-owned patent in 1984, getting it two years later. It describes a network of “information and sales terminals” that could “dispens[e] voice and video information, printed documents, and goods,” accepting credit card payments. There’s no evidence Lockwood developed any such network or even had the ability to do so. In fact, Lockwood, a former travel agent, reportedly admitted during a deposition that he had never used a personal computer “for any length of time,” according to the 2003 Los Angeles Times profile.In the mid-90s, Lockwood sued American Airlines for patent infringement, seeking to collect royalties on its SABRE flight reservation system, which he claimed infringed three of his patents. He lost that case when, in 1997, an appeals court agreed with the district court that his patent claims were not infringed and were invalid.That wasn’t the end of Lockwood’s efforts to make money through patent litigation, though. He continued to get more patents, acquiring Patent No. 6,289,319 in 2001, and 7,010,508 in 2006. Both patents have been used in more than 85 lawsuits, according to the LexMachina legal database. He was able to get those patents despite the fact that they were based on a patent that had been found invalid. Even better for Lockwood, he was allowed to use the “priority date” of the earlier patent. That means the only prior art that could be used to invalidate the patent would have to be from earlier than that priority date—May 24, 1984.Led by a family-owned chocolate shop, a group of small businesses banded together to share legal costs and fight Lockwood’s PanIP. When they put up a website about PanIP’s abuse of the system, Lockwood sued the owner of the chocolate shop for defamation and trademark infringement.The ‘319 patent, which is richly deserving of our “Stupid Patent of the Month” award, was issued because of a problem we’ve spoken about before—abuse of the continuation process.The Patent Office allows applicants to file “continuation” applications with new claims, as long as they’re based on what was disclosed in previously-filed applications. This creates opportunities for applicants to game the system and get patents on advances they could not have developed. For example, even though Lockwood applied for the ‘319 patent in 1994, it’s a continuation of the original 1984 application—which means that only prior art from 1984 or earlier can be used to invalidate it.Landmark’s complaints demand money from operating businesses, claiming that because their systems process “business and financial transactions between entities from remote sites,” they infringe the ‘319 patent. Their recent complaint [PDF] against Illinois-based Learning Resources, Inc. includes a claim chart [PDF] explaining the alleged infringement, which is a 42-page detailed chart that describes using a computer to order a toy on the defendant’s website.That chart makes clear that Landmark’s patent doesn’t claim any particular technological advance—just the basic idea of transmitting data between networked computer terminals.This patent should be invalid under Section 101 of the patent laws for failing to claim an actual invention. At best, it describes basic computer technology—like an “on-line means for transmitting said information, inquiries, and orders”— to exchange information, and respond to orders. That is a ubiquitous and essential part of e-commerce, not a patent-eligible invention.Right now, lobbyists are pushing for a wholesale re-write of Section 101, which is the best chance of stopping patents like this one early enough in a case to avoid spending hundreds of thousands of dollars on lawyers and expert witnesses. Drastic alterations to Section 101 could leave targets of Landmark in an even worse position—in order to get out of a multi-million dollar lawsuit, they’ll have to find published, pre-1984 prior art describing the precise, nearly indefinable contours of Lockwood’s “invention,” and invest huge sums on prior art investigations as well as expert witness reports.Before lawmakers distort Section 101 so that it’s nearly useless, they should consider campaigns like Landmark’s. It involves an “inventor” who’s long been focused on litigating patents, not creating new innovations—and who admits to leveraging the high cost of litigation defense against small businesses. Lowering the bar for patent-eligibility even further will do far more to threaten innovation than encourage it.Reposted from EFF's Stupid Patent of the Month series.

You know how supporters of Article 13 in the EU keep insisting that just because Article 13 (now Article 17) says not to take down non-infringing content that any worries about taking down non-infringing content are misplaced? About that... This week there's been a lot of fuss about the whole "Time 100" thing that purports to highlight the 100 most influential people in the world. This bit of backslapping among the famous starts off with glowing magazine profiles, followed by a big party, the Time 100 Gala and the Time 100 Summit, which is the conference version of the backslapping. Time Magazine livestreamed the Summit yesterday via YouTube.

Here's how we're fighting the War on Drugs. Lots of stuff going on, but not much seems to be happening in terms of actually, you know, keeping drugs from ending up in buyers' hands. The byproduct of the problem -- the cash -- is all anyone seems interested in.As Brad Heath points out in his tweets referencing this in rem complaint, federal agents camp out at major air traffic hubs looking for nothing but cash. As we've covered here earlier, the DEA is actually paying TSA agents to search for cash and alert officers if any amount worth seizing rolls through checkpoints.The same thing is happening in FedEx hubs. In this case, officers from the DHS, Indiana State Police, Indiana Metro PD all combined to stop some cash from traversing the country from Ohio to Arizona.The filing lets us know what the government finds suspicious in terms of packaging and sending stuff around the country: everything. If you like using FedEx and their new boxes, but apply a bit too much tape, you might be a drug dealer. From the complaint [PDF]:

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Last November, John Oliver had a fun episode of his show discussing whether or not President Trump had fulfilled his promise to "drain the swamp" (spoiler alert: he did not). Part of that episode focused on the story of Scott Angelle, who Trump appointed to run the Bureau of Safety and Environmental Enforcement, an organization within the Department of the Interior, whose sole focus is supposed to be on enforcing safety standards for offshore oil drilling. The organization was created in the wake of the BP Deepwater Horizon spill, after people realized that there was a conflict of interest in the existing government agency in charge of enforcing safety, the Minerals Management Service, because it was also in charge of collecting revenue from those very same oil companies. So the BSEE was set up solely to focus on safety. Except, as a NY Times profile made clear, when Scott Angelle took over, he seemed much more focused on using the position as a business opportunity for oil companies -- perhaps not surprising, given that Angelle had very close ties with the industry, including getting $1 million to sit on the board of a pipeline company. In the report, which talked about just how often Angelle seemed to be meeting with oil execs, it noted:

We've long talked about the more than 750 towns, cities, and counties that have responded to US broadband market failure by building their own broadband networks. We've also talked at length about how data has shown these networks often offer better service at lower, more transparent prices than their purely private sector counterparts (usually natural monopolies), whose apathy and political power has only grown in the wake of limited competition.We've also talked at great length about how instead of derailing these efforts by offering better, cheaper service (aka competition), industry giants like AT&T and Comcast have found a cheaper solution: they've quite literally paid state lawmakers to pass protectionist laws in dozens of states that ban or hinder towns and cities from even exploring the option. These bills are widely opposed by the public, but a new study says the phenomenon is growing all the same:

Early last year, news leaked out the French government was building its own encrypted messaging service. This seemed a bit disingenuous when this same government was routinely calling for backdoors in encryption for everyone else. The potential upside of the government rolling its own is that it would push government officials off third-party services and onto a platform where they might not be compromised along with everyone else if or when these privately-run platforms were hacked/backdoored.The problem with rolling your own encryption is it's a more daunting task than those asking for it imagine it will be, as Mike Masnick pointed out in last year's post.

A lot of bad stuff has been coming out of the EU lately, notably the awful Copyright Directive with its upload filters. So it makes a pleasant change to report on the passing of strong legislation to protect whistleblowers revealing breaches of EU law, a move which the Pirate MEP Julia Reda describes as "One of the greatest successes of this mandate!". Its scope is wide. Areas covered include public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, and -- of particular interest to Techdirt readers -- privacy, data protection and security of networks and information systems. Two key components of the new directive are "safe reporting channels" and "safeguards against retaliation", as the European Parliament's press release explains:

The news site TorrentFreak tends to get more false DMCA copyright notices than other sites, in part because of its name. It seems that people who don't bother investigating anything jump to the wrong conclusion that because it has "Torrent" in its name, it must be a "piracy" site, rather than a news site that reports on news about copyright and filesharing. So last week, TorrentFreak got some attention after Starz not only sent a bogus DMCA takedown over a TorrentFreak news article about leaked TV shows, but then started DMCAing anyone who even tweeted that Starz was abusing the DMCA this way. Starz eventually admitted it had made a mistake and issued a pretty lame apology.You might think that others in Hollywood would at least pay a little attention to this sort of thing -- but apparently not. This weekend TorrentFreak reported that yet another tweet of yet another of its stories was removed due to a copyright claim -- this time from Warner Bros. Just like last time, where Starz utilized an awful third party service (The Social Element) to handle these takedowns, this time Warner Bros employed a company called Marketly, one of a few such companies who claim they're in the "brand protection" business and go around issuing often dubious takedowns.

Of all the laws we discuss here at Techdirt, probably none comes up as often or in relation to as many things as Section 230 of the Communications Decency Act. It's not an exaggeration to describe it the way Professor Jeff Kosseff does in the title of his new book, The Twenty-Six Words That Created The Internet, offering a detailed history of this vital piece of law. This week, Jeff joins us on the podcast for an in-depth discussion about where Section 230 came from, and where it's going.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The DHS's airport panopticon is rolling out slowly, but surely. And of course it's being done with as little oversight or guidance as possible. Major international airports are already turning your face into your ID, giving travelers little option but to get their faces out if they don't want to receive extra questioning.If you're worried about adding your face to the government's extra-large bin o' biometrics, you're welcome to opt out. The easiest way to avoid this is to not travel at all, which is exactly what the DHS suggests. There are other options, but by the time you know they're available, you've likely already had your face scanned and matched against the DHS database by software known mostly for its failure rate.This happened to a JetBlue flier who noticed her face had been scanned and matched against… something… before she was able to board her international flight. She reached out to JetBlue via Twitter and got some not-very-enlightening answers and a couple of disturbing clarifications.

Apparently the new reality is that following any sort of attack, people will quickly rush in to blame the internet and social media. We've seen it in various forms in the past, but it really took off with the Christchurch shootings last month. And, with the horrific and tragic suicide bombings in Sri Lanka last week, it didn't take long for the same sort of thing to happen. Within hours after it happening, someone had jumped into a Twitter thread on content moderation to let me know that my views on content moderation were clearly invalid, given that the "failure" of social media companies to stop extremists in Sri Lanka was clearly to blame for the attacks. And, hours later, it was announced that the Sri Lankan government's response to the bombings was to cut off Facebook, Instagram and Whatsapp (all owned by Facebook). There was some confusion about this, with some people claiming they could still access Whatsapp, while others could not, and others saying that YouTube was also blocked.Either way, the government decided that social media was clearly part of the problem here. Sri Lanka has blocked these platforms in the past as well, claiming they were "spreading hate speeches and amplifying them" and last year there was a report that basically said Facebook had completely ignored how extremists used the platform in Sri Lanka. According to a NY Times report from last year:

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Yet another example of the awfulness of copyright filters. Back in 2006, librarian Michael Sauers posted a public domain film (a US government production) called "Your Life Work: The Librarian" to YouTube. If you don't know, "Your Life Work" was a series of educational shorts that, according to the Internet Archive, were "meant to inspire young post-depression workers into specific new careers." One of those careers? Librarian. Sauers' upload of the video has lived happily on YouTube for over 12 years until a few days ago when, if you visited it, you saw this instead:If you can't see that, it says that the video is unavailable, stating: "This video contains content from NBC Universal, who has blocked it in your country on copyright grounds."Now, that's obviously bullshit, because the video is in the public domain. So, what happened? Well, the takedown notice that Sauers received reveals what almost certainly happened:If you can't see that, it shows that the video taken down is entitled "Your Life Work: The Librarian." But the "copyrighted content" is listed as "The Public." If you don't know, "The Public" is a new movie written, directed and starring Emilio Estevez. The plot of the movie -- involving a group of homeless library patrons who refuse to leave a public library in Ohio during a bitter cold winter -- sounds interesting, and it appears this was a labor of love for Estevez, who worked on the film for the better part of a decade. He must have been thrilled back in January when Universal Pictures acquired the rights to the film.Earlier this month, the film got an actual theatrical release, and apparently Universal Pictures does what all the big Hollywood Studios do: upload all the content to YouTube's ContentID tool to make sure no one has offered up a pirated copy.There was just one problem. It appears that Estevez included a clip of "Your Life Work: The Librarian" within the movie (in which he, himself, plays a librarian). He, of course, is free to do so (thanks to the public domain), and having put that clip into his movie doesn't magically make that clip covered by copyright. But what the fuck does Universal Pictures care about pesky little things like the public domain and librarians' YouTube accounts? It's a big important Hollywood studio, and if it stomps out public domain material and ends up giving strikes to actual librarians, well, it's all good because it must "stop piracy."So, Universal doesn't bother making sure that the public domain parts are excised from what it gives ContentID, and ContentID identifies a match... and bye bye public domain material, and Sauers now faces having a copyright strike on his account. Sauers has said he's disputed the claim, but now he has to wait around and see if Universal comes to its senses and withdraws the claim, or decides to double down.Once again, this is why expecting automated filters to work is a real problem -- and it's doubly obnoxious that companies like Universal Pictures (and the MPAA that represents it) have been among the leading voices calling for more internet filters and things like "notice and staydown" which would effectively be used to block even more such content. Hopefully, Universal/YouTube restore Sauer's video soon, but it's just another example of how copyright is frequently used to take down perfectly legitimate speech.In the meantime, though, you can still see Your Life Work: The Librarian at the Internet Archive... at least until Universal Pictures goes after it as well.

If you hadn't noticed by now, the Trump administration has made blacklisting Chinese telecom companies one of its top priorities. That's been most notably exemplified by the administration's attacks on Huawei, which is repeatedly cited as an asset of the Chinese government without much in the way of proof. From pressuring U.S. carriers to drop plans to sell Huawei phones to the FCC's decision to ban companies from using Huawei gear if they want to receive federal subsidies, this effort hasn't been subtle. A harder, broader ban is supposedly looming in the wings.There's no doubt that Huawei, like AT&T here in the states, isn't a shining beacon of ethical behavior. At the same time, the dulcet undertones justifying much of the blacklisting is based on the premise that the company spies on Americans on a massive scale. Yet nobody has provided evidence of that. In the slightest. In fact, one 18-month investigation into Huawei in 2011 (the last time we had a similar epidemic of hand-wringing on this subject) found that there was no evidence supporting that claim. As in, at all: