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Massachusetts prosecutors are seeing a bunch more Drug War wins turned into losses by drug lab misconduct. Annie Dookhan, a drug lab technician, falsified countless tests, ultimately resulting in the overturning of more than 20,000 convictions. Dookhan was valued for her productivity, but no one above her bothered to wonder why she was able to process samples so quickly. Turns out tests go much faster when you don't actually perform the tests.If that were it, it would have been more than enough indication the nation's crime labs need more oversight and auditing. But it isn't. Another tech at another Massachusetts drug lab is erasing thousands of convictions. Chemist Sonja Farak, an 11-year veteran of the Amherst drug lab, apparently spent much of that time using the substances she was supposed to be testing, turning in falsified test results that landed people behind bars.The Farak investigation uncovered the drug lab's lack of standards, which included more than allowing an employee to use drugs while on the clock for at least eight of the eleven years she was employed. There's no way of telling how many drug tests might be tainted, not just by employee malfeasance, but by a lack of best practices, like running blanks through testing equipment to ensure new tests weren't tainted by residue left behind by previous tests.The total number of convictions expected to be thrown out due to Farak's abuse is currently sitting at 7,690 cases. But this won't be the final total. Zach Huffman of Courthouse News Service reports an entire decade's-worth of convictions is being examined.

A few weeks ago, we wrote about the 9th Circuit overturning the district court's ruling in a copyright case questioning whether the song "Stairway to Heaven" had infringed on the song "Taurus" by Spirit. We were less than pleased with this result, as we felt the original ruling was correct. Copyright lawyer Rick Sanders disagreed with part of our analysis and made some really great points in a two part blog post series, which he's graciously allowed us to repost in slightly edited form here. Part II will be published tomorrow.Yes, the new 9th Circuit surprising reversal of the jury verdict looks like "Blurred Lines" all over again -- only in reverse. Whereas in "Blurred Lines," the jury reached the "wrong" conclusion, and the Ninth Circuit refused to fix the jury's mistake, here it looks like the jury reached the "right" conclusion," and the Ninth Circuit is screwing up the jury's work. Techdirt all but said so, in an article 9th Cir Never Misses a Chance to Mess Up Copyright Law: Reopens Led Zeppelin 'Stairway to Heaven' Case.I'm pleased to report that, far from taking this opportunity to further screw up copyright law, as Techdirt fears, the panel of judges is attempting to improve copyright law by replacing the Ninth Circuit's (very bad) framework for copyright infringement with a much better one. Indeed, the "Stairway to Heaven" opinion may be seen as a rebuke to the "Blurred Lines" opinion. The pity is that Led Zeppelin must bear this burden by having to do the trial all over again.The reason the "Stairway to Heaven" has to do with our old, misunderstood frenemy, the "Inverse-Ratio rule," which is only tangentially related to why the case is being sent back for a second trial. I blogged extensively about the "inverse-ratio" rule in connection with the "Blurred Lines" case, and how the Ninth Circuit (correctly) amended its opinion to excise (its terrible) discussion of the rule. But here's the deal: the inverse-ratio rule provides that the more similarity there is between the two works, the less proof of access you need, and vice-versa. It is highly beneficial when applied to the right legal framework for copyright. It is a perverse disaster when applied to the wrong legal framework.Two Legal Frameworks for Copyright InfringementGenerally, there are two leading legal frameworks for determining when someone has infringed copyright:

For quite some time we've highlighted the horrible laws being pushed by aggressively misrepresenting the size of the problem of sex trafficking -- and especially sex trafficking of children. This is not to say that it never happens. Nor is it to suggest that the crime of sex trafficking, especially of minors, is not horrific and hugely problematic. But we shouldn't overreact to false information. A year ago, we looked at some of the numbers being presented in favor of passing FOSTA, and found they were almost entirely bullshit. This included Rep. Ann Wagner's (who is the leading pusher of bad laws around "sex trafficking") claim child sex trafficking alone was a $9.5 billion industry. As we noted, this number came from a bizarre nonsensical extrapolation of a very misleading and confused report by ICE that covered issues of smuggling (not just sex trafficking). Other stats -- such as the supposed number of kids "lured" into sex trafficking -- showed even more extrapolation, while police were finding very, very few actual cases of this happening.But, the narrative has been set and the media makes it into reality, even if... it's not. Take this headline from the NY Post from last week, claiming "123 missing children found in Michigan during sex trafficking operation":Wow. That would be a pretty astoundingly successful police operation, and certainly gives weight to the idea that so many kids are lured into sex trafficking rings and then disappear and go missing. Except... details matter. And deep in the NY Post story they actually admit that out of the 123 missing kids only three were "identified as possible sex trafficking victims." So, uh, why does the headline suggest that all 123 kids are sex trafficking victims when it's not clear if any are, and clear that the vast majority are not?And then there's this: only four of the kids were actually missing.

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It's no secret the printer business relies on hefty ink refill markups. The printers are disposable, often cheaper than the ink they come packaged with. But customers aren't usually willing to toss out a printer when it runs out of ink, even if refilling it costs more than replacing it.And good for them! I mean, at least in an environmental sense. Let's not toss a bunch more non-decomposables into the nearest landfill the moment they refuse do anything until their inkwells are filled. But this does nothing for consumers, forcing them to become unwilling adherents to the sunk cost fallacy, especially after they've paid for a couple of ink refills.Printer companies know their system is ripoff. They know their customers know it's a ripoff. That's why they engage in shady tactics to ensure this steady stream of revenue doesn't dry up. For years, third parties have offered compatible ink refills. And for years, printer companies have been lying to customers to lock these competitors out of the market.A couple of years back, HP pushed out a firmware update that made it impossible to use third-party refills. It didn't tell customers the update would do this. It just sent out the DRMbomb and triggered it remotely, saying things about "security" and "protecting customers," even as it eliminated their refill options.Now, Epson has been caught doing the same thing. Cory Doctorow, writing for the EFF, says an EFF fan spotted the firmware update's refill-bricking capabilities.

As hardware vendors and cellular carriers prepare deployment of fifth-generation wireless networks, you may have noticed that the hype has gotten a little out of control. Claims that 5G will magically revolutionize the broadband sector sound nice and all, but as we've noted repeatedly, 5G is really more of a modest evolution in existing networks, not some kind of revolutionary panacea that's going to change everything. Still, claims that 5G will somehow usher in amazing smart cities or somehow result in a four day work week for everyone (what?) get far more traction than they probably deserve.Alongside the generalized hype, carriers are pushing another narrative: that 5G wireless is so incredible, it's going to fix all of the telecom sector's biggest problems by delivering a massive new wave of competition. This competition will be so amazing that net neutrality will apparently be made irrelevant. It's largely bunk originating with telecom industry marketing departments, dutifully swallowed and regurgitated by an unskeptical press.The problem: 5G, like 4G before it, isn't going to be cheap. Companies like Verizon, AT&T, and CenturyLink still enjoy a monopoly over the backhaul and core transit lines that feed these networks, meaning they're going to do everything in their power to keep prices high along the chain. Protectionist blacklisting of cheap Chinese network hardware and the death of net neutrality isn't likely to help, and Wall Street is making it clear they want 5G priced at a premium to quickly recoup any investment cost:

New York City's prosecutors just admitted they use the bail system to punish people for being accused of criminal acts. It's not there to serve its intended purpose: to ensure the return of charged individuals to court, where they're presumed innocent until proven guilty.The bail system isn't supposed to keep people locked up. But that's the way it's been used for years. Prosecutors often ask for excessive bail amounts. Judges often grant them. The argument made for high bail amounts -- which ensure only the most well-to-do can remain free while awaiting trial -- is that arrested people are flight risks and/or more inherently dangerous than all the people the police haven't gotten around to arresting yet.The stats don't back up the parade of horribles offered by prosecutors at bail hearings. People have done the math. And this excellent article by the Boston Review compiles the damning numbers.

This week, our first place winner on the insightful side is Gary with a response to the Texas cops who seized an anti-GOP sign from a homeowner's lawn:

Five Years AgoThis week in 2013, the US government shut down. Former CIA director Morell used that as an excuse to skip an NSA surveillance review board meeting, while James Clapper warned that failing to pay the agency's mercenary contractors might lead to security problems. The TSA similarly used the shutdown as an excuse for letting a nine-year-old sneak on to a flight, and a lawsuit by tech companies over NSA surveillance was put on hold. Outside the government, some folks were having fun with the shutdown, such as the Russian pirates offering to host the NASA website, someone submitting a bug report to GitHub describing how "government occasionally shuts down", and Good Old Games started offering some free thematically-appropriate games to furloughed government workers.But hey, at least Congress's members-only gym was deemed essential and kept open.Ten Years AgoThis week in 2008, it was still the early days of the global financial crisis. Many self-serving and/or bizarre explanations popped up, blaming things like short selling and Wikipedia edit wars or, most strangely, flickering computer screens (according to author Tom Wolfe). Cooler heads took a closer look at the real causes: leverage and derivatives and a toxic, complex financial system.Meanwhile, bogus stats and arguments were coming strong from the US Chamber of Commerce and members of congress in a push to get the president to sign the bill creating a copyright czar. At the same time, a judge ordered an injunction against Real's DVD copying software and for some inexplicable reason kept it secret, then extended it.Also, long before the Snowden leaks and following Congress's capitulation on warrantless wiretapping, early leaks were already documenting NSA surveillance abuse.Fifteen Years AgoThis week in 2003, as we took a look at the role of music retailers in the industry's failure to adapt, the record companies were trying to ape the success of DVDs by adding "extras" to CDs. That's extra content — not extras like BMG's new DRM system, which a researcher discovered could be defeated by holding down the shift key while inserting the disk. SunnComm, the company that made the laughably useless DRM, naturally announced plans to sue the researcher for besmirching their good name — but reversed course in less than 24 hours in the face of public outcry. The software industry, on the other hand, was just beginning to dip its toe into the waters of a DRM approach that would gain much more traction (even while still being quite easily circumvented): product activation codes.

Thanks to the convoluted nonsense that is copyright law, readers here will likely be familiar with the insanity that is intellectual property rights revolving around The Wizard of Oz. Thanks to some of the works being in the public domain, some of them being under copyright, and the courts mostly treating all of this on a case by case basis, it's fairly clear at this point that basically nobody knows who is allowed to do what with anything associated with The Wizard of Oz. Usually, issues relating to the work revolve around this axis of confusion.But that's less the case when it comes to trademark issues. For all of its flaws, trademark law is blessedly limited to public confusion and true competition within a specific market. That's what makes it bewildering that Warner would bother to oppose the trademark application filed by a pagan priestess for her "Wicked Witch Mojo" brand.

The LA Times has put together a blockbuster piece showing local law enforcement engaging in some arguably biased policing. Analyzing over 9,000 traffic stops recorded by the LA Sheriff's Department over the last five years, the LA Times noticed some alarming statistics. Latino drivers comprised 69% of the stops and had their vehicles searched two-thirds of the time. Other drivers -- the remaining 31% -- were subjected to searches less than half the time.Also alarming: most searches were consented to by drivers, suggesting drivers are either unaware of their rights or simply felt pressured into allowing deputies to do what they wanted. It also suggests most stops are fishing expeditions, rather than truly traffic-related, which may put more recent stops on the wrong side of legality, thanks to the Supreme Court's Rodriguez decision. This decision said traffic stops are over when the objective of the stop has been fulfilled -- i.e., the delivery of a citation or warning. Killing time to wait for drug dogs or backup units is no longer permissible if reasonable suspicion has failed to materialize.The LA County Sheriff's Department likes to brag about the hundreds of kilos of drugs it has seized over the years. But it doesn't have much to say about its apparent targeting of Latino drivers or the fact that these drivers were no more likely to be carrying contraband than races/ethnicities stopped/searched far less frequently.The whole thing is worth reading, but a couple of details pop out. First, the author of the paper was riding shotgun during what appears to be an illegal traffic stop. Deputies stopped a Mexican man for driving too slow and searched his entire vehicle, including removing part of the dashboard to look for hidden drugs. Nothing appears to have risen to the level of probable cause and the paper's documentation of the stop doesn't include the driver giving his consent to be searched.The deputies may have had reasonable suspicion to extend the stop, but that's only if you believe a person reacting normally to the presence of several law enforcement officers is inherently suspicious.

American Idol, the famous singing competition franchise that has been around for roughly ever, has mostly stayed out of our headlines for years, save for some hiccups centering around how technology has messed up their voting processes. That is set to change, as FremantleMedia, the company that owns the trademark rights for the franchise, has decided to lawyer up against the trademark threat presented by a local county festival holding a singing competition.

As the FCC gears up for legal battle against the numerous net neutrality lawsuits headed its way, its latest filing with the courts acts as a sort of a greatest hits of the agency's biggest fallacies to date. 23 State AGs have sued the FCC, stating last fall's repeal of net neutrality ignored the law, ignored standard FCC procedure, and ignored the public interest. The FCC’s new filing with the U.S. Court of Appeals (pdf) for the District of Columbia Circuit declares these concerns "meritless," despite indisputible evidence that the FCC effectively based its repeal largely on lobbyist nonsense.At the heart of the matter sits the Administrative Procedures Act, which mandates that a regulator can't just make a severe, abrupt reversal in policy without documenting solid reasons why. The FCC has some legal leeway to change its mind on policy, but as we've long noted, the FCC's justification for its repeal (that net neutrality was somehow stifling broadband investment) has been proven false. Not just by SEC filings and earnings reports, but by the CEOs themselves, publicly, to investors (who by law, unlike you, they can't lie to).Unsurprisingly then, the FCC's brief leans heavily on the Supreme Court's 2005 Brand X ruling, which states the FCC has some leeway to shift policy course at its discretion if it has the data to back it up. Also unsurprisingly, the brief goes well out of its way to pretend that ignoring the experts, ignoring the public, and demolishing consumer protections purely at Comcast, Verizon and AT&T's behest is reasonable, adult policy making. And again, the false claim that net neutrality harmed "innovation, investment and broadband deployment" takes center stage:

Back in July we were flabbergasted to see a stunningly misleading and dishonest video put out by the the House Judiciary Committee trying to claim that FOSTA had been a huge success in stopping sex trafficking. There is literally no evidence to suggest this, while there's plenty of evidence to show the harm that has been created by FOSTA. One of the claims in the video came from Rep. Ann Wagner, who was the original sponsor of FOSTA and has been a leading voice in stoking the exaggerated and misleading moral panic around sex trafficking (which is a real problem, but very, very limited compared to what many -- including Wagner -- have said about it). Wagner's latest trick has been to try to massively expand the PATRIOT Act for spying on Americans by again freaking everyone out about sex trafficking.As we noted back in July, in the video, Wagner tries to imply that FOSTA helped kill off 90% of sex trafficking. She worded it awkwardly so that it clearly implies 90% of sex trafficking went away due to FOSTA, but it could also be read to just say that 90% of sex trafficking ads went away. As we pointed out at the time, this was clearly not true either way. While Backpage contained many ads, it stopped with those ads a year and a half before FOSTA was law, and was taken down by the feds before FOSTA was signed. So there was literally no way that FOSTA could be in any way credited for a drop in ads coming from Backpage.I missed it, but a few weeks later, the Washington Post set its fact checker on these specific claims, and did an even more thorough analysis, even asking Wagner's office for details. And those details make Wagner look even worse, leading the Washington Post to give her the full three Pinocchios in their final ruling on the accuracy of her claim. Specifically, Wagner's office argued that a DARPA analysis saw a "weekly global ad volume dropped 87 percent from January to April." But, as the WaPo article notes (and as we did as well) the vast majority of that was from the takedown of Backpage, which was not due to FOSTA.But, from there things get even worse. The Washington Post asked DARPA for what happened after April and found... things are not at all what the House Judiciary Committee and Wagner were claiming. Indeed, while there was an initial decline due to Backpage shutting down (again, not due to FOSTA), it quickly went back up after April -- conveniently ignored by Wagner and the HJC. Why contaminate the narrative with facts:

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Fake news is a handy term deployed by authoritarians to criticize speech they don't like. Since it's such a malleable term, it's been co-opted by a handful of foreign governments as the basis for new laws. We don't have a fake news law here, fortunately, but it's Trump's frequent use of the term that has given it worldwide traction.Egypt's "fake news" laws comes bundled with lots of other speech-censoring add-ons. Earlier this year, an Egyptian journalist was charged with "spreading false news" and "misuse of a social media account"[!] for exposing state police brutality. The government's evidence against the journalist included account suspensions by US social media companies quite possibly triggered by takedown requests the government had issued.Egyptian human rights activist Amal Fathy is the latest victim of the "fake news" law, which was tacked onto a sweeping "cybercrime" bill that gives the Egyptian government more direct control of citizens' access to internet services.Here's how Fathy fell victim to the new cyberlaws:

In the wake of the FCC's net neutrality repeal, nearly half of the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.Of course incumbent ISPs saw this coming, which is why giant ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to preempt state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.So far, some states aren't taking the FCC's threats very seriously, despite California being sued by both major ISPs and the Department of Justice. Washington State Governor Jay Inslee this week had some choice words for the Ajit Pai FCC:

Autonomous vehicles are much in the news these days, and seem poised to enter the mainstream soon. One of their key aspects is that they are digital systems -- essentially, computers with wheels. As such they gather and generate huge amounts of data as they move around and interact with their surroundings. This kind of data is increasingly valuable, so an important question poses itself: what should happen to all that information from autonomous vehicles?The issue came up recently in a meeting of the European Parliament's legal affairs committee, which was drawing up a document to summarize its views on autonomous driving in the EU (pdf). It's an area now being explored by the EU with a view to bringing in relevant regulations where they are needed. Topics under consideration include civil liability, data protection, and who gets access to the data produced by autonomous vehicles. On that topic, the Swedish Greens MEP Max Andersson suggested the following amendment (pdf) to the committee's proposed text:

For over a decade, we have been making the point that the internet is a communications platform, not a broadcast medium. This seemingly obvious statement of fact has long been the subject of legacy content provider objections, which is part of what has led to much of the ongoing conflicts centering around intellectual property and digital business models. With big content players feeling control over their content slipping away in the internet, they have attempted to wrestle back that control by pretending the internet is something it isn't. For that reason, it's always a useful thing to point out to examples that remind people that the internet simply isn't a movie theater or television.The latest example of that is provided by, of course, Netflix. Netflix is reportedly working on some new shows that are something of a "choose your adventure" type experience, which is something that traditional television simply isn't capable of.

For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills, a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.Despite this gamesmanship occurring for the better part of two decades, nobody ever seems particularly interested in doing much about it. The government tends to see this as little more than creative financing, and when efforts to rein in this bad behavior (which is really false advertising) do pop up, they tend to go nowhere, given this industry's immense lobbying power.The latest case in point: US Rep. Anna Eshoo last week quietly introduced a bill that would require broadband and cable TV providers to include all charges in their advertised price. Eshoo explains the proposal as such in her announcement:

A bipartisan group of New York assembly members has introduced a bill that doesn't appear to have much of a chance at becoming an actual law. But what a bill it is. If it does receive the governor's signature, it would drastically revamp how the NYPD (and other agencies) handle the massive amount of video and data they collect daily.

We've had plenty of stories revolving around content owners and publishers issuing DMCAs over trailers and advertisements. These stories are always head-scratching in one way or another, typically centering around the question of why anyone would ever want to take down free advertising, even imperfect free advertising. We've also seen plenty of examples of content owners accidentally sending DMCA notices over their own content, all of which help to highlight both the flaws in the DMCA process and just how difficult it is for even content owners themselves to know just what is infringing and what isn't.But when these two worlds collide, it becomes something special. We're not yet 100% certain, but it sure looks like Epic Games DMCA'd its own trailer for the upcoming Fortnite Season 6.

For years we've noted how the American press has an absolutely horrible tendency to run guest Op-Eds without disclosing the author's financial conflicts of interest(s). Jesse Jackson, for example, can sometimes be found comparing efforts to bring competition to the cable box to racism in the 60s, without disclosing the cable industry's underlying influence. Similarly, former Representative and fair use champion Rick Boucher can often be found praising CISPA, denying a lack of competition in broadband or attacking net neutrality in Op-Ed pages nationwide on behalf of AT&T with zero disclosure of his real financial motivations.The act of republishing these missives without clearly disclosing financial conflicts of interests isn't just unethical, it pollutes the national discourse, undermines already shaky trust in media, and contributes to a sound wall of disinformation as giant companies try to sell their latest megamerger, pass anti-consumer regulations and legislation, undermine a competitor, or justify terrible behavior.One more recent example of this phenomenon comes courtesy of Boeing, which is being accused of running a covert smear campaign against Space X via media outlets that fail to adequately disclose ulterior financial motives of Op-Ed authors.Back in August, just around the time that Boeing was hyping the company's Starliner spacecraft program, a series of Op-Eds began showing up in newspapers nationwide attacking Space X and its allegedly unsafe fueling practices. The articles, which appeared everywhere from the Houston Chronicle to the Washington Times, all purported to simply be worried about astronaut safety. All were penned by Richard Hagar, who worked for NASA during the Apollo program, but now resides in Tennessee. All implied repeatedly that Space X was ignoring safety standards and putting astronauts at risk.But amusingly, when Ars Technica tried to track down Hagar, they discovered that he didn't actually write the vast majority of the Op-Eds published in countless news outlets nationwide under his name. Instead, the missives were penned by a PR and policy shop with an expertise in astroturf and other disingenuous messaging:

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holy_shit(1).pdf [PDF]:

Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about, and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. In September, the group found that 4.4 billion robocalls were placed to consumers at a rate of 147 million per day. The trend is not particularly subtle:The trend continues skyward despite the fact that the FCC passed new rules in 2015 expanding the ability of telecommunication companies to block robocalls and spam messages at the request of customers. And in 2016, the agency created a "robocalling strike force" tasked with crafting solutions for the problem. Additional rules dropped in 2017 taking aim at robocall spoofing.So why is this still a problem? For one thing, cheap, internet-routed calling and spoofing options have outpaced both legal and technical solutions, leaving regulators and lawmakers in a perpetual race to catch up from behind. Flimsy security standards embedded in most caller ID systems also make spoofing phone numbers relatively trivial. Enforcement is also inconsistent (in part because smaller robocallers are often much easier to defeat in court than major companies), and years of apathy, blame shifting, and tap dancing by major carriers like AT&T certainly didn't help.To that end, 34 State attorneys general signed a formal request this week urging the FCC to do more to thwart the problem. Comments made to the FCC make it clear that the FCC's 2017 spoofing rules didn't go far enough, so the AGs are requesting that the FCC create additional, more tailored rules to tackle things like "neighbor spoofing":

The DHS is back in court, arguing for its "right" to expand border searches to cover the entire country. The case in which Homeland Security investigators are making this dubious claim involves the placement of a GPS device on a truck crossing the Canadian border… which FBI agents then tracked all the way down into California.The "bust" carried out in Southern California turned up plenty of legal frozen pastries and four bags of a cocaine-like substances known as regular-ass sugar. The FBI posited this was a trial run for actual drugs and chose to take its collected evidence to court, where it was promptly thrown out by the presiding judge. As the judge saw it, tracking a vehicle inland requires a warrant. The "border exception" to warrant requirements can't be expanded to cover searches performed miles from the 100-mile "Constitution-free zone."The government maintains the judge's opinion is wrong, according to this report by Cyrus Farivar of Ars Technica.

A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Starting next year, California law enforcement agencies will finally be subject to a bit more scrutiny and accountability. For years, law enforcement officers have been able to hide misdeeds behind super-restrictive public records laws -- laws so restrictive even law enforcement's best friends (i.e., prosecutors) couldn't see them.For the general public, this meant near total opacity. For criminal defendants, this meant rarely having the chance to impeach an officer's testimony by offering evidence of past misconduct or routine untruthfulness.Over the past few years, efforts have been made to roll back the restrictions built into California's public records laws. All of these efforts died on the way to the governor's desk, most riddled with rhetorical bullets fired by California police unions who claimed making this information public would endanger the lives of bad cops.The status quo -- in place for the last forty years -- is being disrupted. Two bills have been signed by Governor Jerry Brown, creating holes in law enforcement's law-enabled opacity.

Judging by the headlines, there are Russian spies everywhere these days. Of course, Russia routinely denies everything, but its attempts at deflection are growing a little feeble. For example, the UK government identified two men it claimed were responsible for the novichok attack on the Skripals in Salisbury. It said they were agents from GRU, Russia's largest military intelligence agency, and one of several groups authorized to spy for the Russian government. The two men appeared later on Russian television, where they denied they were spies, and insisted they were just lovers of English medieval architecture who were in Salisbury to admire the cathedral's 123-meter spire.More recently, Dutch military intelligence claimed that four officers from GRU had flown into the Netherlands in order to carry out an online attack on the headquarters of the international chemical weapons watchdog that was investigating the Salisbury poisoning. In this case, the Russian government didn't even bother insisting that the men were actually in town to look at Amsterdam's canals. That was probably wise, since a variety of information available online seems to confirm their links to GRU, as the Guardian explained:

Stupid unconstitutional stuff is happening in Texas. "Again?" I hear you ask, irritated but not surprised. "Yes," I repeat. "In Texas, and involving local politicians and law enforcement." "Again?" I hear you say (again) and the circle of commentary life continues uninterrupted.A resident of Hamilton, Texas, posted a political sign in her front yard composed of a white label board remix of political cartoonist Ann Telnaes' remix of the GOP logo.Here's the original:

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If you don't remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook's Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn't create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.And... perhaps not surprisingly... one of the first such cases has been brought against Facebook itself along with Backpage, Backpage's execs and some local motels (hat tip to Eric Goldman). As you can see, it's a "Jane Doe" lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage:

A few weeks back we noted how Verizon found itself in hot water for throttling the cellular connections of California firefighters as they battled one of the state's biggest wildfires on record. There was nothing surprising about the story, which again highlighted how cellular carriers advertise their connections as "unlimited," then impose all manner of arbitrary and confusing restrictions. Quite often, the restrictions are imposed simply to help Verizon make even more money (like when Verizon effectively banned HD video on its network, then hit its "unlimited" users with charges if they wanted the videos to display as the origin source intended).In the case of the California firefighters, Verizon repeatedly throttled the connection being used by firefighters mobile command center for seemingly no reason and in violation of Verizon's first responder policies. When the firefighters complained to Verizon, the company's first reaction wasn't to immediately understand the gravity of the situation and fix it -- it was to try to upsell them to a more expensive plan during an emergency. As you might expect, Verizon's friends at the FCC saw absolutely no problem with any of this.Hoping to move beyond the scandal, Verizon has released a new ad spotted by Ars Technica in which the company professes its adoration for first responders, and pats itself on the back for heroically helping heroes be, you know, heroic:Verizon was so keen on people adoring it for its adoration of firefighters, the company issued an accompanying press release attempting to drive the point home by proclaiming that "what we do saves lives." Verizon and AT&T have been trying to nab taxpayer funds as part of a bid to shore up nationwide cellular emergency networks after said networks did a face plant on 9-11. This being AT&T and Verizon, those efforts have gone just about as well as you might expect. But Verizon pretty clearly felt the need to try and shore up its image after its assault on net neutrality and first responder fiasco earlier this year.Unsurprisingly, Verizon was forced to shutter the comments on its YouTube video after the public reception was... frosty. The video received more than 20,000 dislikes and was delisted by Verizon in a little under 24 hours after the video was posted. Reddit has also been having a good time lambasting the ad:

The DOJ rounded up the cast and crew from Backpage and threw a 93-count indictment at them. It did this prior to FOSTA's passage -- legislation portrayed as the only way the government could take sites like Backpage down. History is being rewritten to give FOSTA the credit for the Backpage takedown, but the truth is the government didn't need the legislation to target the site. Of course, for all the talk of sex trafficking, sex trafficking is not among the 93 charges the government brought against the site's personnel.Now that it has Backpage execs facing criminal charges, the government is doing what it can to make sure they can't mount a solid defense. The government is coming after their money via civil asset forfeiture, hoping to lock up their property even if it can't lock up the Backpage site runners.The complaint [PDF] -- titled "United States of America v. Various Internet Domain Names" -- claims everything the site's personnel owned was obtained through illegal activity, even if it's likely at least some of the assets are completely unrelated to Backpage's income. It also must be noted these assertions are being made prior to anything being proven in the DOJ's prosecution, but will receive far less scrutiny from the judge making the determination on the ultimate ownership of the property.The complaint also contains a large amount of "surrendered" property, which was apparently handed over voluntarily after the arrest of Backpage execs. This list includes internet detritus such as domain names and bitcoin. There are millions of dollars at stake, scattered across multiple banks located around the world. The DOJ is busy consolidating its purloined fortune in advance of convictions.This is a bullshit, but completely legal, tactic. In addition to depriving the accused of the finances needed to secure solid legal representation, it also forces them to fight a legal battle on two fronts. The money the defendants no longer have access to won't help them find top lawyers willing to take on the government in both criminal and civil actions.In addition, the complaint plays small ball to hoover up funds from accounts in the names of Backpage execs' family members. Sure, the governments wants what's in joint accounts or those controlled by significant others, but the decision to empty personal checking accounts of what appear to be the children of the defendants seems unnecessarily punitive.Here's what listed under Backpage co-founder James Larkin's seizable assets:

Video game addiction as a concept has been tossed around for the past decade or so, with mixed feelings coming from all sides. Disagreement abounds as to whether or not gaming addiction is a real thing, both among medical professionals as well as the public. There's even disagreement among Techdirt writers (disclosure: I don't think it's a thing).But as the concept continues to infect the common public lexicon, it's something we're going to hear more and more about. It's something of a checkpoint, therefore, that the issue has risen to the level of an NHL team instituting a ban on gaming for players while on the road visiting other cities.

Let's get this out of the way upfront: if you're one of those people who pedantically feels the need to sneeringly point out that the economics Nobel is "not a real Nobel Prize," shut up: no one cares.Now, let's get on to the point: for basically the last decade, I've been specifically waiting for Paul Romer to finally win this prize and each year I've been disappointed when someone else did. Finally, this year he won it and did so with William Nordhous, which is even better, as I'll explain shortly. Both Romer and Nordhous have greatly influenced my thinking on many of the things I write about here at Techdirt, specifically when it comes to the economics of innovation, and, more specifically, the economics of information and so-called "non-rivalrous" goods (I prefer to call them "infinite goods"). I've reference Romer multiple times in the past, specifically in discussing how innovation creates economic growth in powerful ways. One of my favorite Romer quotes is as follows:

For this week's episode of the podcast, we're featuring a recent panel discussion from Mozilla's Speaker Series. Mike Masnick sat down with Guillaume Chaslot from Algo Transparency, hosted by Mozilla Fellow in Residence Renée DiResta, to talk about the challenges of online content moderation and its implications for freedom of expression. Enjoy!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.

While California's new net neutrality law grabbed the lion's share of press headlines, the state last week also passed legislation attempting to fix an equally complicated problem: bots. The rise of bots has played a major role in not only helping companies and politicians covertly advertise products or positions, but they've also played a starring role in Russia's disinformation efforts. That in turn has fueled what's often not-entirely-productive paranoia, as users online accuse those they disagree with of being bots, instead of, say, just genuinely terrible but real human beings.Last Sunday, California Governor Jerry Brown signed SB1001, a bill that requires companies or individuals to label any bots clearly as bots. The bill explains the legislation this way:

A stupid law firm supposedly specializing in IP rights enforcement has decided (again!) to jam its dangling appendages into one of the internet's more ferocious hornets' nests. When you're in the business of threatening litigation over hot-linked images (yep), you probably don't pay much attention to the URLs you target.The law firm of Higbee & Associates should know better than to go to this well twice. But it doesn't. Due diligence doesn't seem to be a priority. If it was, some of its "pre-litigation" specialists might have noticed the firm went after Something Awful in 2015 for using an image from Under the Skin in its review of the movie. Obviously, this was fair use and a little bit of web searching turns up multiple uses of the same image, suggesting it had been made available by the studio for promotional purposes.You'd think one failure to turn Something Awful (SA) into an ATM would have been enough for Higbee & Associates. Apparently not. Richard "Lowtax" Kyanka -- having taken over SA's legal department after the departure of Leonard "J" Crabs -- received a demand letter from the law firm over the supposedly unauthorized use of a picture of (go figure) Hitler.The law firm apparently thought the threat letter would result in Kyanka cutting a check to prevent being sued for up to and including $150,000. But the firm's stupidity goes further than simply trying to threaten a site it had failed to threaten successfully in the past. The demand letter references an image not hosted by Something Awful but one posted to a forum thread by an SA member.Here's Kyanka's take on the legal conundrum posed by Higbee's ridiculous letter.

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You'll recall, of course, that prior to the GDPR, there was a big case against Google in the EU that created, out of thin air, a "right to be forgotten" (perhaps, more accurately, "a right to be delinked") saying that for certain classes of information that showed up in Google's search index, it should be treated as personal data that had to be delinked from that user's name as no longer relevant. This never made any sense at all. A search result is not like out-of-date customer database info, yet that's how the Court of Justice in the EU treated it. Unfortunately, with the General Data Protection Regulation (GDPR) going into effect earlier this year, the "right to be forgotten" was even more officially coded into law. We've noted recently, there have been a few attempts to use the GDPR to delete public information on American sites, and now we at Techdirt have been hit with what appears to be just such an attempt.This particular attempt goes back to some previous attempts under the pre-GDPR "right to be forgotten" setup. We need to dig into the history a bit to understand the details. You see, soon after the floodgates opened on delinking names from Google, we wrote about an article in the NY Times discussing how five of its articles had been delinked via RTBF claims. It was not 100% clear who had made the requests, but we did highlight some of the names and stories, including one where we called the removal "questionable." It involved a NY Times article from 2002 about a legal action by the FTC which went after a group of companies allegedly run by a guy named Thomas Goolnik. The companies -- TLD Network, Quantum Management and TBS Industries -- were accused of "unfair or deceptive acts or practices" by selling domains that did not exist at the time (specifically, they were trying to sell domains using top level domains that did not exist, including .sex, .bet, .brit, and .scot.)The FTC eventually settled with Goolnik and the companies with some significant concessions:

So we've noted for a while now how the U.S. government has deemed Chinese hardware vendor Huawei a nefarious spy for the Chinese government, and largely blackballed it from the U.S. telecom market. 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. But there's numerous problems with the Trump administration's efforts here, ranging from protectionism to blistering hypocrisy.While it's certainly possible Huawei helps the Chinese government spy on American consumers en masse, nobody has been able to provide a shred of actual public evidence supporting that allegation. That despite an eighteen month investigation by the White House finding no evidence of actual spying on U.S. consumers. Also ignored: the fact that U.S. hardware vendors like Cisco routinely like to hype this threat to scare gullible lawmakers toward protectionism and providing Cisco an unearned advantage in the network and telecom market.Even if you want to ignore those facts and still claim Huawei routinely spies, you'd have to ignore the fact that countless hardware, including gear made by U.S. companies, contains an ocean of Chinese-made parts that could just as easily be used to spy on Americans. The reality is that China doesn't even need Huawei to spy on Americans. The internet of broken things sector alone provides millions of new potential attack vectors annually that are often exploited by intelligence agencies.If you still want to assume Huawei is up to no good without any public evidence, you'd also have to ignore the United States' blistering hypocrisy on this subject, given how Edward Snowden documents revealed that not only did the NSA break into Huawei starting in 2007 to steal source code and implant its own backdoors, but that the agency also intercepted Cisco hardware en route to customer delivery for the same purpose.None of this is to say Huawei doesn't engage in bad behavior like every other telecom industry giant, only to state that we've let nationalism and protectionism get in the way of clear thinking on this subject. Occasionally you'll see a bigger media outlet courageous enough to bring up the fact that the evidence justifying total blackballing is shaky at best, but not often. Even reporters who traditionally chatter at length about objectivity in reporting aren't particularly good at seeing how nationalism can infect a hot take.While the folks pushing this stuff may seriously think they're doing the U.S. a favor by trampling a security threat to help boost Cisco revenues, a filing this week by Huawei argues that the United States is only shooting itself in the foot. By banning carrier access to cheaper Chinese hardware, the government is only driving up prices for domestic network gear, while also potentially slowing U.S. next-gen wireless (5G, or fifth generation) deployment plans:

The lawsuits against social media companies brought by victims of terrorist attacks continue to pile up. So far, though, no one has racked up a win. Certain law firms (1-800-LAW-FIRM and Excolo Law) appear to be making a decent living filing lawsuits they'll never have a chance of winning, but it's not doing much for victims and their families.The lawsuits attempt to route around Section 230 immunity by positing the existence of terrorists on social media platform is exactly the same thing as providing material support for terrorism. But this argument doesn't provide better legal footing. No matter what approach is taken, it's still plaintiffs seeking to hold social media companies directly responsible for violent acts committed by others.Eric Goldman has written about another losing effort involving one of the major players in the Twitter terrorism lawsuit field, Excolo Law. Once again, the plaintiffs don't present any winning arguments. The California federal court doesn't even have to address Section 230 immunity to toss the case. The Anti-Terrorism Act allegations are bad enough to warrant dismissal.Here's what the court has to say about the direct liability arguments:

This week, our first place winner on the insightful side is John Roddy with a fairly straightforward reply to a tiresome complaint:

Five Years AgoThis week in 2013, as we discussed how the NSA had essentially built its own "shadow" social network, we learned and then confirmed that the agency was collecting GPS data from mobile phones. A We The People petition calling for a pardon for Ed Snowden was being quietly ignored, while Michael Hayden was joking about putting Snowden on a 'kill list'. We also learned that the NSA was storing all metadata for at least a year, and performing man-in-the-middle attacks with the help of telcos. Plus, it was working hard to compromise Tor, despite James Clapper's claims that they were just trying to "understand" it.Ten Years AgoThis week in 2008, the House followed the Senate in creating a copyright czar position, even as it let orphan works legislation die and the Senate moved on to more international piracy shaming. Cox was quietly adopting a copyright three strikes policy and lying about it being required by the DMCA, a comprehensive review of the RIAA's lawsuit strategy showed just how much of a failure it was, and The Pirate Bay was launching its own copyright lawsuit to expose the absurdity of the system.Fifteen Years AgoFive years earlier in 2003, in the early days of the RIAA's lawsuits, another 63 people gave in to its shakedown letters this week, while the agency concluded a Senate hearing by promising to at least leave a little time in between the letters and the lawsuits in future — but at least one senator wanted much more substantial change. There was talk about compulsory licensing for music and a lot of questions about how it could be abused depending on how you define "music" — not to mention talk about how the cost of making music was going way, way down. It was also around this time that the practice of bundling TV, internet and phone service was picking up steam.

Here we go. For years I've been talking about how we really need to move the web to a world of protocols instead of platforms. The key concept is that so much of the web has been taken over by internet giants who have built data silos. There are all sorts of problems with this. For one, when those platforms are where the majority of people get their information, it makes them into the arbiters of truth when that should make us quite uncomfortable. Second, it creates a privacy nightmare where hugely valuable data stores are single points of failure for all your data (even when those platforms have strong security, just having so much data held by one source is dangerous). Finally, it really takes us far, far away from the true promise of cloud computing, which was supposed to be a situation where we separated out the data and the application layers and could point multiple applications at the same data. Instead, we got silos where you're relying on a single provider to host both the data and the application (which also raises privacy concerns).Despite some people raising these issues for quite some time, there hasn't been much public discussion of them until just recently (in large part, I believe, driven by the growing worries about how the big platforms have become so powerful). A few companies here or there have been trying to move us towards a world of protocols instead of platforms, and one key project to watch is coming from the inventor of the web himself, Tim Berners-Lee. He had announced his project Solid a while back: an attempt to separate out the data layer, allowing end users to control that data and have much more control over what applications could access it. I've been excited about the project, but just last week I commented to someone that it wasn't clear how much progress had actually been made.Then, last Friday, Berners-Lee announced that he's doubling down on the project, to the point that he's taken a sabbatical from MIT and reduced his involvement with the W3C to focus on a new company to be built around Solid called inrupt. inrupt's new CEO also has a blog post about this, which admittedly comes off as a bit odd. It seems to suggest that the reason to form inrupt was not necessarily that Solid has made a lot of forward progress, but rather than it needs money, and the only way to get some is to set up a company:

Weird stuff is happening in Philadelphia. Things have changed drastically since Larry Krasner became District Attorney. Anyone who enters this office and immediately earns the undying hatred of the local police union is probably someone actually serious about accountability.Right after taking office, DA Krasner secured 33 resignations from prosecutors and staff who weren't willing to get on board with his reform efforts. He went after the bail system, pointing out it did little else but ensure the poorest Philadelphians spent the most time in jail while still presumably innocent. Then he pissed off the police union by daring to tell incoming police cadets force deployment -- especially deadly force -- is a power to be used only when necessary and handled with the utmost of respect.Accountability INTENSIFIES. A bogus pedestrian stop performed by two cops has led to [rubs eyes in disbelief] the arrest of the two cops who performed the stop. (h/t Max Marin)The statement [PDF] issued by the DA's office says two Philly PD officers, Matthew Walsh and Marvin Jones, stopped a citizen for "apparently using narcotics." This citizen filed a complaint, resulting in an Internal Affairs investigation.The narrative delivered by the two cops on their report was undone completely by video obtained by Internal Affairs.

The battle against encryption is being waged around the world by numerous governments, no matter how often experts explain, often quite slowly, that it's a really bad idea. As Techdirt reported back in August, Australia is mounting its own attack against privacy and security in the form of a compelled access law. The pushback there has just taken an interesting turn with the formation of a Alliance for a Safe and Secure Internet: