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Whatever will we do without the Monkey Selfie case rearing its not-actually-copyrighted head every few months? We might finally get to find out, now that the Ninth Circuit has declined to rehear the appeal en banc. This denial now makes clear that monkeys lack standing to sue for copyright, at least within the Ninth Circuit. Someday (hopefully not soon) we may find out what other Circuits have to say about primate copyrights, but for now we can finally be confident that they lack standing to sue over them here.Provided that no cert petition is granted, of course. And given that this is a case that has thus far steadfastly refused to end, it is way too soon to be confident that this is truly the last we've heard from Naruto or any of his alleged next friends. We should at least know whether a cert petition's been filed in about three months or so, though (see Rule 13), so stay tuned...

Copyright is a big, complicated monster of a law, composed of patchwork updates and shaped by international agreements — which is, in fact, the source of a lot of its problems. But fixing copyright means understanding it, so this week we've got a conversation with UCLA professor Neil Netanel, author of the new book Copyright: What Everyone Needs To Know, because there's always something new to learn about copyright.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.

President Trump's tweets charging that Google search results are biased, against him and against conservatives, are the loudest and latest version of a growing attack on search engines and social media platforms. It is potent, and it's almost certainly wrong. But it comes at an unfortunate time, just as a more thoughtful and substantive challenge to the impact of Silicon Valley tech companies has finally begun to emerge. If someone were truly concerned about free speech, news, and how platforms subtly reshape public participation, they would be engaging these deeper questions. But these simplistic and ill-informed claims of deliberate political bias are the wrong questions, and they risk undermining and crowding out the right ones. Trump's charges against Google, Twitter, and Facebook reveal a basic misunderstanding of how search and social media work, and they continue to confuse "fake news" with bad news, all in the service of scoring political points. However, even if these companies are not responsible for silencing conservative speech, they may be partly responsible for allowing this charge to gain purchase, by being so secretive for so long about how their algorithms and moderation policies work.So what do search engines actually do when users access them for information or news? Search engines deliver relevant results, nothing more. That judgment of relevance is based on hundreds of factors: including popularity, topic relevance, and timeliness. Results are fluid and personalized. There's plenty of room in this complex process for overemphasis and oversight, and these are important questions to examine. But serious researchers who actually already study this are careful to take into account the effects of personalization, changes over time, and the powerful feedback effects of users. This is a far cry from looking at your own search results and being troubled by what you see. (Even the author of the report Trump was likely reacting to acknowledges that it was unscientific and disagrees with the suggestion that regulation of search should follow.)To understand, for instance, the results for "Trump" in Google News, or "Trump news" in Google -- different things, by the way -- we would need to consider some much more likely explanations than deliberate political manipulation: major outlets like CNN may publish a lot more content a lot more often; more users may click on, read, and forward links from these sources; outspoken right-wing sites like Gateway Pundit may have much less trust outside of their devoted base than they imagine; CNN may be much more congruent with centrist political leanings than Trump and conservative critics admit; well-established news sources may already circulate more widely and successfully on social media platforms like Facebook and Twitter, boosting their rankings on search engines; users may simply be more convinced by these news sources, "voting" for them with their clicks and links in ways that Google picks up on.In truth, there are important questions to be asked about search engines, social media platforms, and the circulation of news online. There are profound concerns about the economic sustainability of journalism itself when it has to compete on social media platforms. There a profound concerns about the subtle effects of how algorithms work. But the noise that right-wing critics are stirring up is not subtle, it is not helpful, it is not well informed -- and more than that, it is clearly about scoring political points. Those claiming political bias seem wholly uninterested in acknowledging the inquiries already underway.Charges of left-leaning bias are not new, of course. They come from a very old playbook conservatives have used against newspapers and broadcasters for decades. Unfortunately, Silicon Valley is partly to blame for why it is working so well today. Search engines and social media platforms have been too secretive about how their algorithms work, and too secretive about how content moderation works. In the absence of substantive explanations, users have been left to wonder why search results look the way they do, or why some posts get removed and others don't. This uncertainty breeds suspicion, and that suspicion goes looking for other explanations. This leaves room for trolls, conspiracy mongers, and demagogues to suggest that the platforms are silencing them for their political speech -- conveniently overlooking the fact that they been suspended for making hateful threats, or can't reach the first page of search results because readers trust other sources. And Silicon Valley has bruised their users' trust for so long, that even their genuine explanations sound suspect.Some of the press coverage, when it's not careful, can inadvertently make the very same easy assumptions that these critics do. Search results, trending lists, and content moderation are not the same thing, they are not managed by the same people, and they are not handled in the same way. Too often, a critic will thread together ill-informed charges against search, one outdated incident regarding trending, and continued uncertainty about moderation practices, and lace them together into a blanket charge of bias. But they are simply different things.It is unnerving to feel like an apologist for these tech companies. There are real and concerning questions about how search and social media work. I ask some of these questions in my own research, and my field has been thinking about them for years. The ways these companies have addressed, or often failed to address, the public ramifications of search algorithms and moderation policies has been deeply problematic. But these questions of bias distract us from the deeper problems.It is also disconcerting, just as the public is finally grasping the subtle ways in which search and social media platforms matter, that we are ready to fall back on so simplistic a charge as deliberate political bias. I feel a bit like critics of mainstream news media, who for years have tried to highlight the way contemporary US news organizations are subtly centrist, structurally cautious, founded by commercial imperatives, and under attentive to marginalize voices -- who now have to bracket those critiques and come to the defense of CNN when the President dismisses them as "fake news." Those of us who ask hard questions about search and social media should do so, but we must also steadfastly refused to lump these real concerns in with facile, politically motivated charges of bias that miss the deeper point.Tarleton Gillespie is the author of Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media. He is a principal researcher at Microsoft Research and an affiliated associate professor at Cornell University.

A public records request sent to the Louisiana State Police has uncovered something disturbing. Although the LSP continues to refuse to release the document in question, it appears this law enforcement agency has been using a bogus list of supposed Antifa members compiled by 8chan users to keep tabs on Americans opposed to Trump.The public records lawsuit [PDF] filed by Harvard lecturer (and former staff attorney for Orleans Public Defenders) Thomas Frampton on behalf of records requester William Most, alleges law enforcement's refusal to hand over the "antifa.docx" file referenced in obtained emails is an indication the state police actually believe this bogus "Antifa" list -- compiled from a list of signatories to an anti-Trump petition -- is credible enough to be used in ongoing investigations and litigation.Here's Frampton's summation of the situation, as gleaned from the state police's responses to Most's repeated requests for a copy of the Antifa doc.

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A few weeks back I wrote a big piece on internet platforms and their controversial content moderation efforts. As I've pointed out more recently, part of the reason why what they do is so bad is it is literally impossible to do this well at the scale they do things at. That is, even if they can reach 99% accuracy, given the amount of content on these sites, it's still going to take down a ton of legitimate stuff, while leaving up an awful lot of awful stuff. This doesn't mean they shouldn't do anything -- but my own proposal is for them to shift the way they think about this issue entirely, and move the moderation out from the center to the ends. Let third parties create their own filters/rules and allow anyone else to not just use them, but to adjust and modify and reshare them as well. Then allow the users to not just "opt-in" to the kind of experience they want, but allow them to further tweak it to their own liking as well.I've seen some pushback on this idea, but it seems much more viable than the alternatives of "do nothing at all" (which just leads to platforms overwhelmed with spam, trolls and hatred), and continue to focus on a centralized moderation system. There have been a number of articles recently that have done a nice job highlighting the problems of having Silicon Valley companies decide who shall speak and who shall not. EFF's Jilian York highlights the problems that occur when there's no accountability, even if platforms have every legal right to kick people off their platforms.

Despite a rocky start, California has shaken off the lobbying influence of Comcast, AT&T and Verizon and passed meaningful net neutrality protections for the state's broadband residents. California's SB822, which pretty closely mirrors the FCC's discarded 2015 rules, almost had its most important parts stripped away courtesy of some early committee gamesmanship by AT&T. When that failed, ISP-connected lobbying and influence orgs tried to scare voters away from the effort by making misleading robocalls to state senior citizens insisting the bill would dramatically raise their phone bills.Given the continued, overwhelming and bipartisan support for net neutrality, those efforts didn't work. SB822, which the EFF has called the "gold standard" for state-level rules, passed the California Assembly last Thursday, then managed to nab the necessary votes in the State Senate last Friday. It's now headed to the desk of California Governor Jerry Brown for signing:

The Five Eyes nations -- UK, US, Australia, Canada, and New Zealand -- still think there's a way to create encryption backdoors (that they studiously avoid calling backdoors) that will let the good people in and the bad people out.The backlash against government calls for backdoors has made these demands a bit more subdued in most Five Eyes countries. The UK government really doesn't seem to care and uses every terrorist attack as another reason to prevent law-abiding citizens from using secure encryption for their communications. Others members have taken a more measured approach, talking around the subject while legislative inroads continue unabated.In the US, the periodic "going dark" discussions have taken on a (no pun intended) darkly comical tone as FBI and DOJ officials continue to claim harder nerding with solve the "problem" it has misrepresented for years.The countries may be taking different approaches to undermining encryption, but they're all still looking to do this in the future if they can just find a way to sell it to the public without the actual nerds speaking up and ruining all their plans. The Register notes the Five Eyes surveillance partnership has delivered another ultimatum (that it won't call an ultimatum) about encrypted communications following a meeting in Australia. But it is taking care to couch its wants and desires in pretty words about the safety and security of the general public.

This week, the cops managed to spur both our top comments on the insightful side with two different stories. First up, it's That One Guy responding to a commenter who accused Tim Cushing of hypocrisy by comparing an earlier call to not serve cops at restaurants with a new post about an ill-fated plan for amateur cops:

Five Years AgoThis week in 2013, we learned that the NSA had tapped the UN and various embassies and cracked the UN's video conferencing encryption. We also got a look at the agency's "black budget" and realized how much effort they were putting into breaking encryption. The DOJ began making the "just metadata" argument, while we looked at how well Ed Snowden covered his tracks and wondered how many intentional surveillance abuses were hidden the same way, not to mention how many of the 1000 other sysadmins with the same access copied documents too. Meanwhile, the UK's Deputy Prime Minister was defending the destruction of Guardian hard drives but not the detention of David Miranda, the latter of which was also condemned by the author of the UK anti-terrorism act. Barry Eisler argued that both incidents were all about creating a chilling effect on journalism, and later in the week we learned that the UK government asked the NY Times to delete the Snowden documents too (they didn't listen).Ten Years AgoThis week in 2008, people were scrutinizing the true nature of Disney's Mickey Mouse copyrights, AMC was stupidly freaking out over the new trend of fans creating Twitter accounts for fictional TV show characters, and in an early version of the Ubers and Lyfts to come, we saw a bus company in Canada try to shut down a carpool-matching service. Meanwhile, Mattel sadly followed in Hasbro's footsteps and brought the war on Scrabble-clone apps to the rest of the world where it owns the rights to the game, and the Tetris Company started getting in on the same anti-app action. The RIAA won a copyright case because the defendant had foolishly destroyed evidence, while a different and excellent court ruling found that Veoh was protected by safe harbors for videos uploaded by users. But the FBI still had nothing better to do than arrest the leaker of a Guns N' Roses album.Fifteen Years AgoLots of innovations were still in their nascent stages this week in 2003, with everyone struggling to figure out what exactly to do with location-based tech, US wireless carriers doing a not-so-great job of supporting and promoting camera phones, a growing number of consumer electronics starting to come with broadband connectivity (as more and more computer makers started becoming general consumer electronics companies), and of course the beginning of the ascent of the famous/infamous (depending on who you ask) autotune technology. Meanwhile, porn websites were getting in on the file sharing subpoena game while the RIAA (which also got sued by webcasters for monopoly actions) was firing back at a woman who was fighting just such a subpoena.

One of the oldest challenges in journalism is deciding what goes on the front page. How big should the headline be? What articles merit front-page placement? When addressing these questions, publishers deal with a physical limit in the size of the page. Digital publishing faces a similar constraint: the storage capacity of the user's device. You can only put as much content on the device as will fit. If that sounds like a fundamental to you, and unpatentable, idea, we agree. Unfortunately, the Patent Office does not. They recently decided to issue our latest Stupid Patent of the Month: U.S. No. 10,042,822, titled "Device, Method, and System for Displaying Pages of a Digital Edition by Efficient Download of Assets."The '822 patent adds nothing remotely inventive or technological to the basic idea of providing a portion of a periodical—i.e., a newspaper—based on the amount of space available. The patent owner, Nuglif, makes an application for distributing news and media content.Even a cursory glance at the patent reveals the limits of its technological reach. It explains: "The present invention is concerned with a processor-implemented method for displaying a digital edition readable by a dedicated software application running on a data processing device having a display screen, even though the digital edition is not completely downloaded on the data processing device." The specification is typically elusive as to what that invention actually is, instead repeating the boilerplate phrase beloved by patent applicants, that "the description set forth herein is merely exemplary to the present invention and is not intended to limit the scope of protection."For the limits of the patent, we look to its claims, which define the applicant's legal rights instead of describing the operation of the "invention" to which the claims supposedly correspond. The patent has only one independent claim, which includes steps of (a) receiving a pre-generated file linking to at least some content from current and upcoming digital editions, (b) requesting the linked-content for display, and (c) determining how much content from the upcoming edition to download based on publication date and device capacity.Notably, the patent does not claim as the invention the processor, the network, the digital edition, the software application for reading the digital edition on the device, or any other technical aspect. Instead, it claims the combination of receiving, requesting, and determining, without limiting it to any particular device or manner of operation. Aside from the reference to a "processor-implemented" method in the preamble to the claim, nothing in the claim indicates these steps would even have to be performed by machinery rather than a human. Nor does it indicate why providing a partial edition would be challenging once a complete edition can be provided.In 2014, the Supreme Court's Alice v. CLS Bank decision confirmed what numerous earlier decisions had already established: to be eligible for a patent, an applicant must actually invent something. Patents on abstract ideas, laws of nature, and naturally-occurring phenomena are prohibited. These represent the fundamental building blocks of innovation and scientific progress that must remain available to the public. When a patent claims something in these prohibited categories and adds nothing to transform the claims into a specific invention, the patent takes from the public domain, and adds nothing in return.Abstract ideas are basic principles that apply and often represent methods of organizing human activity that people have known and used for years without technological intervention. Too often, applicants obtain patents on abstract ideas by claiming systems or methods that merely apply these ideas using off-the-shelf computer hardware and software and without adding anything that is inventive and patent-eligible—i.e., something attributable to the applicant other than the abstract idea or pre-existing computer technology that supposedly makes it concrete.The '822 patent issued on August 7, 2018, and has a priority date of January 10, 2014. That means the Alice decision came out in plenty of time to block its issuance. The idea of providing less based on resource constraints is not even technological, let alone innovative. It is a basic idea that drives human activity every day: from our decision not to consume an entire day's worth of food at breakfast, to our decision to fill our bag with only what we can carry, and actually need, for work or school.Nothing in the patent suggests that the applicant came up with anything beyond the idea of making a determination based on timing and capacity. Even the patent relies on the obvious analog analogies, explaining that Saturday editions are typically "more voluminous" and thus demand more capacity than "lighter" Sunday editions with fewer sections. But that was just as true for paper editions distributed by newspaper carriers as for digital editions distributed on devices today. The need to adapt to the constraints of a medium is not a problem tied to any particular technological tool or environment.Right now, we have no concerns about the conduct of the assignee, Nuglif. But we are worried that the Patent Office is still issuing patents like this one. Because the '822 patent issued so recently, it has the potential to be used to threaten or bring suit until it expires in 2034. Since it directly relates to the distribution of news content, these threats could add to risks and costs of creating and distributing newspapers, magazines, and other creative content—activities the First Amendment protects.Reposted from the EFF's Stupid Patent of the Month series.

Police unions have never been the sharpest tool in the law enforcement PR shed. Over the years, they've claimed officers should be subjected to less scrutiny than Walmart employees, flashbang-burned toddlers are the price society pays for "safe" neighborhoods, and anything remotely suggesting greater accountability or transparency will probably result in dead cops.Hey, I get it. Zealous advocacy and all that. Unions need to show the rank-and-file their dues are being put to use. And it's the best use possible: self-preservation and consistent maintenance of the status quo. Unions will always strongly advocate for their officers, even when advocating positions officers don't agree with. To sum up: ridiculous. And here we are with yet another ridiculous police union action.Recently, a video went viral showing an officer begging for help from a security guard while a number of people stood around filming his losing battle with an arrestee. Maybe the problem was callous citizens and their anti-cop attitudes. Maybe the problem is the reduction of real life to social media filler. Or maybe it was just the bystander effect: the more bystanders there are, the more everyone assumes someone else will step up and help out.The correct response from New York City's Sergeants Benevolent Association would have been nothing more than some grousing about civilians and their nipple-suckling. Instead, the SBA chose to get involved in the worst possible way.

Earlier this year we wrote about Disney's silly lawsuit against Redbox. If you don't recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney "combo packs" (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in "copyright misuse" in overclaiming what copyright allowed the company to do. Later in that ruling, the court also rejected Disney's claim that Redbox was in breach of a contract by saying that the text Disney prints on the box (at the time: "codes are not for sale or transfer") was not actually a contract. Of course, as we noted at the time, the court's language made it clear that slightly different language could fix this. From the ruling:

Maybe someday AI will be sophisticated, nuanced, and accurate enough to help us with platform content moderation, but that day isn't today.Today it prevents an awful lot of perfectly normal and presumably TOS-abiding people from even signing up for platforms. A recent tweet from someone unable to sign up to use an app because it didn't like her name, as well as many, many, MANY replies from people who've had similar experiences, drove this point home:

While all major webmail companies have veered away from the idea of automatically scanning private e-mails in a bid to monetize the content for behavioral advertising due to public backlash, that's simply not how Verizon rolls. According to a deep dive over at the Wall Street Journal (watch out for the paywall, here's a Verizon-owned Techcrunch alternative), Verizon and its Oath subsidiary now offer the country's only major webmail service that still thinks this practice is a good idea:

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It was only a matter of time. Given the incorrect and misleading claims of "political bias" in social media moderation/search recently, you knew someone was going to file a lawsuit, and not surprisingly, the first to take the plunge is serial litigant Larry Klayman and his "Freedom Watch" organization. Of course, we've had a few similar lawsuits test the waters, all of which have failed miserably -- from Dennis Prager falsely claiming that YouTube was demonetizing his videos due to his political views (which was not even close to true) to Jared Taylor suing, claiming political bias in Twitter kicking him off its platform.Klayman's complaint, however, adds layers of nuttiness upon those previous attempts. First off, he's hoping to turn it into a class action lawsuit for "all politically conservative organizations, entities and/or individuals who... have experienced illegal suppression and/or censorship." Second, he's filing it against four companies at once: Google, Facebook, Twitter and Apple. Once again, I thought that conservatives believed in free markets and were against the fairness doctrine which (1) is not currently law and (2) even when it was, only applied to broadcasts over the airwaves. Yet, Klayman pretends that there's some sort of quasi fairness doctrine, and also takes every possible rumor or claim of political bias in tech, no matter how incorrect, and assumes it's true for the purpose of the case.Literally the case dredges up a ton of disproven articles claiming bias where none has been shown to actually exist. It takes things out of context. For example, it puts tremendous weight on the long-ago debunked story of Facebook's "trending stories" being moderated to block conservatives, and mixes that with Facebook's totally unrelated attempt to increase quality of news, to argue it's proof that Facebook censors conservatives. That's ridiculous. First of all, the Gawker article, claiming Facebook bias in trending news, was later shown to be misleading and just the incorrect claims of a disgruntled ex-employee (and trending stories was a feature that few people even used anyway). The attempts to increase quality is not a sign of political bias, it's a recognition of the fact that choosing what is "quality" involves ranking stuff. That's how ranking works. But to say that's evidence of political bias is complete bullshit. The lawsuit also uses PragerU as an example, even though YouTube showed pretty damn clearly that many fewer of PragerU's videos were demonetized than well-known "liberal-leaning" accounts. But that doesn't stop Klayman.As for the "harm" to Klayman? Apparently, he believes it's against the law for his fanbase to have stopped growing. Really. It must be a conspiracy against him.

So we've long discussed how the FCC (often under both parties) has a long and troubled history of ignoring the obvious competition problems in the United States broadband market. From the FCC's $300 million broadband map that avoids mentioning prices and hallucinates competition and speeds, to the agency's long-standing (and absurd) belief that just one connection in a census tract means the entire area is "served," the government has gone to great lengths to help deep-pocketed telecom campaign contributors mask the width and depth of a problem that's painfully obvious to U.S. consumers.Under the Ajit Pai FCC, this rose-colored glasses approach to data has only, unsurprisingly, intensified. The Pai FCC has been engaged in all manner of efforts to lower the definition of broadband in order to make it appear that residential broadband is more uniformly deployed than in actually is. That effort has been equally present in the even less competitive broadband business and special access market, where just a few ISPs hold regional monopolies over the high-speed lines connecting everything from cellular towers to your local ATM.When Ajit Pai came to power at the FCC, he immediately got to work scrapping previous FCC efforts to make this market more competitive. That included modifying the very definition of "competition." Under the revised Pai FCC language, countless markets were suddenly deemed "competitive" if businesses had access to just one broadband provider. In response, impacted competitors and consumer groups filed an amicus curiae brief (pdf) urging the US Court of Appeals for the Eighth Circuit to vacate the FCC's rule changes.That effort hasn't gone particularly well. This week, the court upheld the FCC's decision to declare a market "competitive" if there's just one ISP available to service it. From the ruling (pdf):

Expressing your displeasure with law enforcement via hand gestures is not an arrestable offense. It can't even justify a traffic stop. Officers are learning this, one federal case at a time.Tim Geigner covered a case five years ago involving a cop, a veteran, and the veteran's upraised middle finger. It was expressive conduct the cop manning the speed trap found worthy of a traffic stop. A federal court disagreed, finding the officer's stated reason for conducting a traffic stop laughable.

For readers of this site, we writers would simply need to utter the name "Monster Energy" to get their eyes rolling. The makers of energy beverages have been notorious in their trademark bullying habits and have built a reputation for being both blowhards and litigious. If one actually reviews our stories about the company, however, these bullying attempts just as often lead to pushback and losses for Monster Energy. And now it seems we have another such instance on our hands.A little over a year ago, a pizza joint in the UK applied to register its business name, Monsta Pizza, as a trademark. Monster Energy, which again I will point out makes drinks and not pizza, immediately opposed the registration, citing its own trademarks and claiming that the public would somehow be confused. A year and lots of legal fees later, the trademark office has finally ruled that Monster Energy's opposition is denied and Monsta Pizza's mark will be granted. The pizza company will not need to change any of its branding moving forward. Monster Energy has also been ordered to pay some of Monsta Pizza's legal fees.The folks at Monsta Pizza are understandably pleased.

This case, coming to us via Andrew Fleischman, would be Keystone-Cops-comical if it weren't such a hideous example of law enforcement using someone's rights as a doormat. What began as a 911 call for assistance with an unresponsive infant soon devolved into a full-blown search of house by several officers without a single warrant between them.Arielle Turner was indicted by a grand jury for the death of her infant. That's gone now, thanks to the careless, self-destructive actions of the officers at the scene. All evidence obtained during the unlawful search has been suppressed, with this Georgia Supreme Court ruling [PDF] upholding the lower court's decision.Arielle and her mother, Terry Turner, called 911 to report her 10-week-old baby was unresponsive. EMTs arrived and began treating Turner's daughter before taking her (and Arielle) to the hospital. The child's grandmother remained at home.The first officer to arrive was Joseph Wells who comforted Terry Turner while standing on the porch. Terry invited Officer Wells to come in and sit down because her legs were starting to hurt. They sat and conversed. Detective Victoria Bender arrived shortly thereafter, letting herself in through the open front door. Neither of these two officers performed any searches or seized any property.Over at the hospital, an examination did not turn up any signs of abuse or foul play. Investigators believed the infant's death to be accidental. This information was relayed to Detective Bender, who passed it on to Terry Turner. Either something got lost in translation or the officers already on the scene decided to make a command decision. Suddenly, the home they were already in was declared a crime scene, despite there being no evidence of foul play.Once that happened, the floodgates opened. From the decision:

One of the things we've talked about for decades at Techdirt is that companies need to not freak out so much when someone copies their product -- whether physical or digital. There are some who believe you need to stop copying at any cost. That always seemed silly for multiple reasons. First, if you have something people want, it's going to get copied. At some point you have to do something of a cost benefit analysis of whether or not it's truly worth it to go crazy stopping every copy. Second, if you truly created the original, then you have a leg up on any copycat, in that you have a much better understanding of just about everything: you understand the customers better, you've built up brand loyalty and you understand the hidden reasons why people like your product. So you'll almost certainly continue to innovate above and beyond any copycats. Third, many efforts to stop copycats end up punishing your actual customers, saddling them with a worse product because you're so overly concerned about copying. This is a story of a company that has gone in the other direction.For the last year or so, I've been telling a bunch of people about my exercise regime (my coworkers are sick of hearing about it). It began two years ago when I saw a Kickstarter project for Monkii Bars 2 -- a suspension training system not unlike TRX (if you're familiar with that), but a lot more portable. If you spend time on Kickstarter, there are a ton of exercise equipment products there, but nearly all of it looks like most late night infomercial crap (also, I noticed that most of them are based in LA, which perhaps isn't too surprising). Most of them look snazzy, but also are likely to be the kinds of things that no one ever uses for more than a week. The Monkii bars didn't look like that at all, though. First, it was from a Colorado company, and the team who made it seemed more like the kind of people I'd actually hang out with, rather than the folks who pitch most exercise equipment. More importantly, though, something about the way the Monkii Bars worked just seemed like a perfect way to get a workout. For whatever reason, I knew that they wouldn't be a "use it for a week and forget about it" kind of thing (though, I did still at least worry a little bit they would turn out that way).But what really pushed me over the edge in deciding to back the project was two things. First, they not only had a successful Kickstarter campaign under their belts, but you could see that many backers of the new campaign were returning customers who raved about the original. That's always a good sign. Second, and more importantly, on their own website they had a page on how to make your own monkii bars, with the following:

It's no secret that the DMCA process is often abused. Typically, this abuse takes the form of one entity issuing a takedown notice not over true copyright concerns, but rather to either silence speech it doesn't like or to harm a competitor. It's a very real problem. But sometimes the misuse of the DMCA takedown process takes a turn towards the bizarre.That appears to be the case with Columbia Pictures suddenly issuing takedown notices for a promotional poster for the upcoming Will Ferrell movie, Holmes and Watson.

Australians will be thrilled to discover they won't have to visit the United States to have their electronic devices brutalized and mercilessly probed in the name of security. Why spend all that money flying halfway around the world when you can experience the same intrusive discomfort at home?

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We've repeatedly tried to make it clear that while everybody tends to focus on the death of net neutrality itself, the Pai FCC's "Restoring Internet Freedom" order killing net neutrality had a far broader impact than just killing net neutrality rules. As part of the repeal, Comcast, Verizon and AT&T also convinced FCC boss Ajit Pai to effectively neuter FCC authority over ISPs entirely, making it harder for the agency to hold giant ISPs accountable on a wide variety of issues ranging from privacy to transparency (the recent fire fighter kerfuffle being a prime example).The order also attempts to ban individual states from holding giant ISPs accountable as well, though early ISP efforts to take advantage of this legal language haven't gone very well. In an effort to double down on weakening state oversight of natural telecom monopolies, Comcast lobbyists at the NCTA (the cable industry's biggest lobbying and policy organization) have also started petitioning the FTC, urging it to similarly "pre-empt" (read: ban or ignore) state-level efforts to protect consumers:

Lots of tech is being deployed by law enforcement around the world -- often far in advance of thorough testing, privacy impact assessments, or public input. Biometric scanning, facial recognition software, cell site simulators, social media monitoring tools, and, of course, "predictive policing."The last one on the list brings together a bunch of data and tells cops where to go to stop crime before it happens. Pre-crime is no longer relegated to sci-fi movies providing chilling glimpses of a totalitarian future. It's here now and it's converting certain neighborhoods into instant probable cause.The Chicago PD is only one of several agencies using the software to generate "heat lists" of citizens in need of arresting. There may be no criminal activity occurring when patrols begin, but the algos say it's inevitable, so off the cops go to round up people who may be likely to commit crimes.India is starting to dip its toes into the pre-crime waters. A new program introduced in Maharashtra will dovetail with the local government's cybersecurity plans, possibly converting the second-largest state into India's leading surveillance state.

We have talked in recent years how the scourge of copyright trolling has hit the nation of Denmark particularly hard. While trolling operations started off about the same as they do elsewhere in the world, their requests to unmask ISP customers soon ramped up to enormous levels. It was enough to turn two ISP rivals into allies, with Telenor and Telia fighting in court for their respective customers' privacy rights. After an initial loss, the companies appealed up the legal chain and managed to get a win with the court siding with the ISPs' privacy concerns over the copyright trolls' nefarious business model. After that, one of the copyright trolls appealed to Denmark's Supreme Court, hoping to reverse the decision once again.It didn't work. The Supreme Court is refusing to hear the case, potentially putting an end to copyright trolling in Denmark.

For several years now, there have been a parade of articles examining the "churn and burn" culture at Amazon. For example a 2015 New York Times piece profiled the "bruising" culture at the company while noting that employees weeping at their desk was not an uncommon sight. And while the profile was contested by some employees at the company, a substantial number of different reports have also highlighted the poor working conditions in Amazon distribution warehouses, including employees having to pee in garbage cans for fear of missing targets by going to a proper restroom.Hoping to correct the "public perception" of poor working conditions at the company's warehouses, Amazon executives have crafted a new "solution" to the problem. They've started paying some warehouse employees to create Twitter accounts and speak positively of not only their working experiences, but CEO Jeff Bezos. Under the tags of "Amazon FC Ambassadors," these employees are broadly encouraged to respond to any criticism of Amazon with positivity and, apparently, copious use of emojis as they proudly insist they can pee any time they'd like:

Earlier this week, we wrote about how the USTR itself appeared to be totally confused about its own NAFTA-replacement agreement with Mexico in the "Intellectual Property" section, in that it was reporting that the agreement included copyright in some works for "75 years" in places and "life + 75 years" in other places, and acted as though they were the same thing. The USTR seemed legitimately confused over this issue, which did not give people much confidence that it knew what it was doing in these negotiations on the intellectual property questions. However, since that issue appeared to be one of pure confusion, which should be easily fixed in the final text, we should put our attention more towards the actual problems with what the USTR appears to be doing here.We don't yet have the full text -- though that should be available soon -- but from the USTR's fact sheet there are many reasons to be concerned that this agreement is a massive handout to Hollywood and patent trolls, and against innovation. Let's dig in:

There is a long tradition in conservative politics for blaming video games whenever a mass shooting is carried out by a relatively young person. It's a monumentally stupid argument, given the complicated and twisted nature of mass shootings and the motivations behind them. But, since policy and politics are now offered merely in soundbite formats, the end result of a mass shooting is for every person to retreat to their familiar corners and make lots of noises that ultimately accomplish nothing but stagnation.The mass shooting that happened in Florida recently could have been a different story. While it indeed happened at a video game tournament, the gamers involved were playing Madden, not some violent shoot 'em up. If playing a football video game makes people angry enough to shoot people, just wait until those decrying video game violence turn on their TVs on Sunday and realize that there are actual people playing the same game for real. There was no indication anywhere that this shooting was carried out by anything other than an individual that likely had some severe mental problems and access to weapons. And, yet, somehow Florida Attorney General Pam Bondi addressed this latest shooting by pivoting directly to the dangers of kids playing video games and the predators that will harm them.

Tons of copyright lawsuits (and even more copyright trolling shakedowns that never even reach court) are based on one single bit of data: the IP address. We've seen numerous district courts reject using a bare IP address as evidence of infringement, but now we have a very important (even if short and to the point) ruling in the 9th Circuit that could put a serious damper on copyright trolling.

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Passwords and PINs still beat fingerprints when it comes to the Fifth Amendment. But just barely. Nothing about the issue is settled, but far more cases have been handed down declaring fingerprints to be non-testimonial. Fingerprints are obtained during the booking process -- a physical, traceable representation of the suspect. If they can be obtained during booking, they can certainly be obtained again to unlock a device. A physical aspect of a human being can't be considered "testimonial" as far as courts have interpreted the Fifth Amendment.Passwords are a different story, but not by much. In a handful of cases, courts have said the compelled production of passwords and PINs has no Fifth Amendment implications. Defendants, conversely, have argued compelled password production forces them to testify against themselves by facilitating the production of evidence to be used against them.This argument hasn't had much success. Judges have frequently found password production to be just as non-testimonial as a person's fingerprint. The argument here is that all law enforcement wants is a password, not the production of evidence. Under the "foregone conclusion" theory, all the government has to prove is that the person being asked to unlock a device can unlock the device.This decouples password production from its consequences: the production of evidence by defendants that the government will use against them in court. When this theory is applied, the Fifth Amendment is sidelined and replaced with the ultra-low bar of foregone conclusion.But passwords aren't fingerprints and can be testimonial. Unlocking a device law enforcement is going to search for evidence states clearly that a person owns or controls the device and its contents. That makes it very easy for the government to link a device's illicit contents to the person who was ordered to unlock it.A case from Indiana's Court of Appeals -- via FourthAmendment.com -- addresses these arguments with a bit more sympathy for compelled testimony arguments. The government argued there's nothing testimonial about a password. The court, in a lengthy decision [PDF], disagrees.

With the bipartisan majority of Americans supporting net neutrality, the broadband industry often has to resort to outright falsehoods to try and make its case that we don't need net neutrality rules (or any meaningful oversight of natural telecom monopolies). From paying civil rights groups to parrot industry positions to hiring fake journalists to deny the obvious, the broadband industry has a long, proud, multi-decade history of using outright bullshit to scare the public, press and regulators away from the idea of net neutrality.The latest case in point: after AT&T lobbyists successfully sabotaged initial efforts to pass new net neutrality rules in California, the state this week revisited the effort with a new vote on the state assembly floor. In a bid to try and scuttle the effort, an AT&T-linked group by the name of Civil Justice Association of California (CJAC) has been robocalling senior citizens in the state, informing them that their cell phone bill will jump $30 if the new rules pass. California State Senator Scott Wiener, the author of California's bill, wasn't particularly impressed:

While most of the attention on the upcoming votes around the EU Copyright Directive is on the mandatory filters found in Article 13, we should be just as concerned about the link tax in Article 11. European publishers have been flat out lying about the proposal, which is little more than an attempt to just demand cash from Google and Facebook.We've already explained why this is a bad idea. And it's not a theoretical issue either. This very same proposal has been tried in Germany and Spain and it failed miserably in both places, to the point of doing serious damage to traffic to news sites, without increasing revenue.Unfortunately, it appears that at least some journalists don't want to hear about the facts. AFP's Baghdad Bureau Chief, Sammy Ketz has pieces in the Guardian and La Stampa (and possibly elsewhere) making an impassioned -- if somewhat confused -- plea in support of Article 11.The reasoning is fuzzy, because there is no legitimate basis for Article 11, but Ketz basically says "there are fewer reporters these days, because news orgs are failing, but Google and Facebook have lots of money, so Article 11 is important, because they'll give us money." Really.

Juice Media has been doing its brilliant Honest Government Ads satires for a while now, and its latest target is all about the awful Article 13 in the EU's Copyright Directive, which is returning to Parliament for another vote in just a few weeks. It's a bit silly, but worth watching:If you're in the EU and this kind of clueless, dangerous regulating concerns you, speak out now. If you're not in the EU, it still helps to speak out about this. Contact the EU Parliament or just spread the word so that others know just how much damage the EU may do to the internet if this moves forward.

In order for something to be patentable subject matter, it has to meet a few criteria, listed out in the Patent Act. It needs to be a "useful process, machine, manufacture, or composition of matter" and it needs to be "non-obvious" to someone "having ordinary skill in the art." But, perhaps most importantly it needs to be a new invention. You can't patent something someone else already invented. That's why prior art is so important.Already, the US Patent Office is notoriously bad at finding prior art, which has been a big complaint here at Techdirt for over a decade. Part of this is that they limit what they'll even look at as prior art, unless information is put directly in front of their faces by those trying to invalidate bad patents. Generally, most of the prior art that patent examiners look at consisted of... earlier patents and scientific journals. And that's not nearly enough for a whole variety of reasons. But, now the Federal Circuit has suggested that even earlier patent applications may not really count as prior art.EFF and R Street teamed up to file an amicus brief with the Supreme Court asking it to reverse the Federal Circuit (something the court has done over and over and over and over and over again in the last dozen or so years).At issue was an attempt to invalidate a patent showing prior art in an earlier patent application. Seems like this should be a slam dunk. There's the patent and an earlier application showing the prior art. Therefore, not novel and not patent eligible. But the courts decided to get nitpicky, and argued that because the prior art in question wasn't directly in the "claims" of the patent, but in the description, it somehow didn't count. The brief explains why this is ridiculous:

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In an article picked up by Drudge Report and then tweeted by President Donald Trump himself, PJ Media editor Paula Bolyard makes the shocking claim that Google deliberately manipulates its search results to favor left-wing views and undermine the President.In supporting this allegation, she goes to Google and looks through the first hundred listings on the search engine results page. Therein, she finds that 96 percent of results for "Trump" are from liberal media outlets. Bolyard remarks:

Back in 2015, we wrote about some apparent backroom dealing in Nevada, in which the legislature seemed poised to get rid of that state's very good and thorough anti-SLAPP law. As a reminder, anti-SLAPP laws are designed to stop an unfortunately common practice of wealthy individuals and companies from suing critics and reporters for defamation, even though the defamation cases themselves had no chance. The plaintiffs knew that merely dragging the defendant to court would be costly in terms of time, money and general stress. Anti-SLAPP laws were a way to deal with that unfortunately common practice usually by (1) putting the immediate burden on the plaintiff to show a likelihood of success and then dismissing the case quickly if they fail to do so, (2) halting the expensive and time-consuming discovery process, and (3) often making the plaintiffs pay the defendants' legal fees. The idea is that this is a deterrent to frivolous lawsuits, while leaving legitimate defamation lawsuits unharmed. As we've pointed out for years, unfortunately, only about half of the states have such anti-SLAPP laws, of varying quality, and there is still no federal anti-SLAPP law.In 2013, Nevada passed one of the best anti-SLAPP laws in the country. But, by 2015, there was an effort underway to throw it out. Nevada-based lawyer, Marc Randazza, pointed out that it appeared that billionaire Steve Wynn was a driving force behind the effort to kill Nevada's anti-SLAPP law, perhaps in response to having recently lost a defamation lawsuit in California, thanks to California's own anti-SLAPP law. Thankfully, that effort failed.And now the National Law Review is pointing out that Wynn has lost yet another defamation lawsuit, under the very Nevada anti-SLAPP law that he was rumored to be seeking to get rid of a few years back. National Law Review has the full story in which Wynn sued the Associated Press and one of its reporters, Regina Garcia Cano.

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The FBI has admitted -- albeit not that publicly -- that Stingray devices disrupt phone service. Spoofing a cell tower has negative effects on innocent phone users as the device plays man-in-the-middle while trying to locate the targeted device. An unsealed document from a criminal prosecution and assertions made in warrant affidavits alleging "minimal" disruption are all we have to go on, at least in terms of official statements.Supposedly, Stingrays are supposed to allow 911 service to continue uninterrupted. But it's hard to square that with the fact every phone in the device's range is forced to connect to the Stingray first before being allowed to connect with a real cell tower. In some cases, the device might force every phone in range to drop to a 2G connection. This may still allow 911 calls to take place, but almost any other form of communication will be impossible as long as the Stingray is in use.Ron Wyden's staff technologist, Chris Soghoian (formerly of the ACLU), will be fielding answers from the DOJ and FBI about 911 service disruptions, if those answers ever arrive. Wyden's office has sent a letter [PDF] demanding to know the extent of cell service disruption when Stingrays are deployed. And he'd also like to know if these agencies are being honest about the negative side effects when agents seek warrants.

We've noted how the telecom industry been having great success in the Trump era eliminating FCC, FTC, and state authority over telecom monopolies. The underlying industry justification is that gutting consumer protections will somehow magically improve competition and spur investment by regional telecom monopolies, a decades-old claim that has never been true, and yet somehow never dies. In reality, when you kill regulatory oversight of natural monopolies (without shoring up the underlying competition issues beneath), the problem only tends to get worse. It's something you probably noticed if you've had any interactions with Comcast lately.Last week the perils in this particular course of action were laid bare when Verizon was busted first throttling and then trying to upsell first responders while they were trying to combat wildfires in California. Gigi Sohn, one of the ex-FCC staffers that helped craft the rules, did a good job pointing out how the FCC's "Restoring Internet Freedom" order didn't just kill net neutrality, it punted the FCC's ability to hold ISPs like Verizon accountable for issues just like this one:

Over in the EU Parliament, they're getting ready to vote yet again on the absolutely terrible Copyright Directive, which has serious problems for the future of the internet, including Article 13's mandatory censorship filters and Article 11's link tax. Regrading the mandatory filters, German music professor Ulrich Kaiser, has written about a a very disturbing experiment he ran on YouTube, in which he kept having public domain music he had uploaded for his students get taken down by ContentID copyright claims.After exploring ways to teach his students Beethoven's music, and putting together a collection of public domain recordings, he encountered the following thanks to YouTube's filters:

It's been a while since we last wrote about Paul Ceglia. If you don't recall, way back in 2010, Ceglia suddenly claimed that years earlier, he had hired Mark Zuckerberg to do some software development, and bizarrely (and literally unbelievably), that part of the contract for Zuck to work on Ceglia's project... was an agreement to hand over 50% of Facebook, which didn't even exist yet. Making it more ridiculous, Ceglia then claimed some weird interest amounts, and therefore was demanding ownership of 84% of Facebook. The whole thing was nonsensical, and while Zuckerberg admitted he had done some work for Ceglia prior to starting Facebook, nothing about the supposed contract made any sense at all. Beyond the bizarre nature of the contract Ceglia claimed he had with Zuckerberg, it quickly became clear that other evidence Ceglia presented, including purported emails, didn't look real.A year later, during the discovery process in the lawsuit, the actual original contract was found and it didn't mention Facebook at all, just as most people assumed. Instead, it became clear that Ceglia doctored their contract. Ceglia tried, weakly, to claim that even though the original was found on his computer during discovery, that it was actually Photoshopped and planted by Facebook. As you might imagine, literally no one believed that. It also probably didn't help that he kept some of the details of his plan in an email account called GetZuck.Finally, in 2012, Ceglia was arrested for fraud. He was set to go to trial in 2015 when he disappeared -- apparently cut off his ankle bracelet and disappeared with his family. Late last week, however, it was reported that he had been found and arrested in Ecuador and was likely to be sent back to the US shortly.I guess it's hard to just disappear in the age of Facebook. Even if you pretend to own a giant chunk of it.

Soooooooo, you've probably heard the news on Monday about how the Trump adminstration had struck a preliminary trade agreement with Mexico to replace NAFTA. Most of the attention over the deal has to do with the lack of Canada being a part of it, with Mexico making it clear it still thought that this was a new deal with both the US and Canada and President Trump repeatedly acting as if this deal was a "take it or leave it" deal for Canada, and if they left it, it would just be US and Mexico.There will, of course, be plenty of time to dig into the details of what's in the actual agreement, but on stuff that matters to us, it already looks bizarre. The USTR put out a "fact sheet" about the intellectual property part of the agreement and it's causing quite a bit of consternation. In particular, it claims that copyright will be extended to life+75 years. Literally no one has been asking for this. While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.But there's been a lot of confusion about what the "life+75 years" even means here -- and it now seems quite likely that the USTR simply misunderstood its own agreement (yes, really). Current in the US, for works made for hire or corporate works, copyright lasts 95 years, and for those made by individuals, it's life+70 years. In Mexico, it's been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction? Either the USTR negotiators have no idea what they're doing (possible!), don't realize why this is a big deal (also possible) or are misreporting what's actually in the agreement. It appears the last one is likely. While the USTR told reporters on a call that they absolutely mean extending copyright to life+75 years, after that, USTR representatives started claiming that this is not an extension of copyright, but was merely supposed to be setting the floor on copyright terms of 75 years, not "life plus 75 years," in which case copyright wouldn't change in either country. But, because this administration appears to be so clueless, someone at the USTR may have taken this news and mistakenly claimed it was now life plus 75, rather than a 75 year floor.This does not inspire very much confidence in this USTR.Either way, if this really is an attempt to extend copyright, at some point this would need to come back to Congress to change the law, and that might be a pretty big fight on their hands, no matter how what the administration foolishly agreed upon in this preliminary agreement.Other aspects of the IP section are also troubling, as it all seems focused on the belief that more draconian patent, copyright and trademark laws and enforcement are what's most desirable:

For years now, we have discussed Denuvo's reputation sliding from being once thought of as the potential ender of video game piracy to just another DRM corpse fit for the funeral pyre. Despite this precipitous fall, we also discussed a few months back that the company had been bought by another security company, Irdeto. While the announcement of the deal was generally bizarre, with Irdeto referring to Denuvo as the "world leader" in gaming security, we mentioned at the time that Irdeto is mostly invested in anti-cheating platforms for online gaming. It seemed likely that Irdeto thought that Denuvo's tech might somehow fit into that chief offering.And now, with an announcement from Irdeto, it indeed seems that Denuvo is pivoting to combating online cheating.

There's more than one way to skin the Fourth Amendment cat. A person who feels her rights were violated by the seizure and search of phone data at the border is sidestepping the expected civil rights lawsuit to expedite the deletion of the seized phone contents. Cyrus Farivar of Ars Technica has more details:

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