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Way back in 2007, we shook our heads sadly as Motion Picture Academy decided that takedowns over past Oscar clips and a lawsuit against a website, OscarWatch.com, would somehow drive more attention to the current year's Oscar broadcasts because of... reasons? In that case, the MPA was mostly making trademark claims, laughably stating that allowing a site like OscarWatch would confuse the public into thinking that the site was in some way affiliated with the MPA. In actuality, the site was a fan-site that put out analysis of The Oscars and had a nice big disclaimer that it wasn't associated with the MPA right at the top of its site.Ten years later, the organization that manages the Heisman Trophy, college football's most prestigious award, has decided to one-up the MPA by filing a similar suit against HeismanWatch.com, but also tacking on a copyright claim stating that online depictions of the trophy is violating the copyright on the original artwork that is the trophy itself.

We recently wrote about how a guy in France, Michael Francois Bujaldon, was using the GDPR to try to delete a public court docket involving a case in which he is a defendant, and has been sued for real estate and securities fraud. As we noted, at least two websites that host public court dockets have felt compelled to either delete or change that particular docket.Last week, the Free Law Project, who operates the CourtListener website (and runs RECAP -- the very useful system that will help automatically free up costly PACER dockets and documents that other RECAP users visit) noted that it, too, had recently received a GDPR demand about a docket (they do not say if it was the same one) and then go into a detailed description of why they are not taking action. The post notes that the general policy of the site has always been that they won't remove a docket without a court order (though it may remove links from search engines).More importantly, however, the Free Law Project notes that it is not subject to the GDPR:

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Israeli exploit/malware developer NSO Group says its products are marketed to governments for legitimate national security and law enforcement purposes. Yet somehow it keeps ending up in the hands of governments with terrible human rights records and deployed against journalists, dissent groups, and activists.The software sold by NSO is being deployed against journalists in Mexico -- ones looking to expose government corruption. This report by the Columbia Journalism Review provides more details on the hacks, building off Citizen Lab's exposure of NSO's "Pegasus" spyware.

You might recall that when the FCC repealed net neutrality, the agency's open comment period (the only opportunity the public had to voice their concerns) was plagued with all manner of bogus comments and identity fraud. From bots that lifted the identities of dead people to create fake enthusiasm, to the hijacking of legitimate identities (like Senators Jeff Merkley and Pat Toomey, or my own) to forge bogus support. The FCC not only refused to do anything about it, it actively blocked law enforcement efforts to do so. The agency told me there was nothing they could do when my own identity was lifted in this fashion.A year later and a few brave journalists are still trying to find the culprit. Who benefited should be obvious. Who they paid to do the dirty work, less so.And while the fake net neutrality comments got the lion's share of public and media attention, the reality is this is a problem that's been plaguing government proceedings for years. For example, new information obtained via FOIA request highlights how the NFL was involved in sending fake fan comments to the FCC as early as 2014 as the league tried to fight FCC efforts to eliminate the so-called "black out rule," which requires that broadcasters black out certain game broadcasts if real-world attendance doesn't meet the league's liking. It didn't work because the rule was so monumentally stupid, but nobody really seemed to much care about tracking down those responsible:

Techdirt has been writing about China and patents for years. One recurrent theme is that the West is foolish to encourage China to embrace patents more enthusiastically, since the inevitable result will be more Chinese companies suing Western ones for alleged infringement. The second theme -- related to the first -- is that the Chinese government is unwise to use patents as proxies for innovation by offering incentives to its researchers and companies to file for patents. That leads people to file as much as possible, regardless of whether the ideas are original enough to warrant patent protection. One of the surest guides to the value of a patent is whether those who filed for them are willing to pay maintenance fees. Clearly, if patents were really as valuable as many claim they are, there would be no question about paying. An article in Bloomberg reveals how that is working out in China:

In gamer circles, Good Old Games, or GOG, is everybody's favorite go-to retort whenever someone brings up the necessity for DRM. While the platform has always been something of a kid brother to Valve's Steam, GOG has made a name for itself by refusing to allow DRM on any titles it sells and, more importantly, being hyper-engaged with its customers and community and fostering that relationship by being genuinely open and human. What many people might not know, however, is that GOG first started in Europe, trying to figure out how to compete with piracy and the grey market long before it waged its war on DRM.Well, GOG is taking a moment to remind everyone of that fact while celebrating its 10 year anniversary.

Earlier this week, a bunch of organizations -- including Techdirt's own sister organization, the Copia Institute -- announced the launch of a new project, called Future Congress. It's a coalition of organizations, some of whom rarely agree on anything with some of the other members. It is made up of organizations with a variety of political viewpoints and policy ideas. But, this coalition does agree one one thing: we need to stop Congress from being so damn clueless about technology.For many years, we've talked about the unfortunate decision by a Newt Gingrich-led Congress back in the mid-90s to dismantle the Office of Technology Assessment (or OTA). This was the organization that was a non-partisan, careful think tank focused on providing useful technology briefings to anyone in Congress who needed it. And yet, just as technology was becoming central to our every day lives, Congress defunded it (technically, the office still exists on the books, but it has no funding and no staff). Over the years there have been many calls to bring OTA back, and every so often someone in Congress floats a bill... which always gets shot down (the latest was just a few months ago).The goal of the Future Congress coalition is to try to convince Congress to fix this -- for its own good. For many, many, many years now, we've highlighted how every time there's a hearing related to issues regarding technology, nearly all of our elected officials come off looking totally clueless to a degree that is outright embarrassing. They could easily fix this -- in a way that will both stop making them look clueless in front of the world and likely lead to better policy outcomes. Hopefully, they realize this.I will note that last month there were some baby steps towards this, with Congress putting some language into an appropriations bill that fund a study of reviving the OTA while also moving to let the GAO take on some of the work that OTA used to do. It's unclear if this will actually survive or do very much, and Congress should be willing to step up and do much more. Hopefully, this Future Congress coalition will help make it clear to Congress why it should stop being so ignorant on technology -- especially when it has the means to better educate itself.

Spain's speech laws continue to be a nightmare. What started out as merely terrible has progressively gotten worse over the years as the government continues to strip protection from speech for the stupidest of reasons. The country's laws against hate speech have resulted in the prosecution of comedians, artists, and critics of the government. The laws forbidding speech supporting terrorism have seen more of the same locked up as jokes about a politician's assassination were determined to be promoting an "unhealthy humoristic environment" and "justifying terrorism."Yes, the Spanish government gets to decide what's funny in Spain. It also apparently gets to decide how offended followers of certain faiths will be when dead/imaginary religious figures are disparaged on social media. Thanks to Spain's insane laws, a complaint from a religious group is enough to get someone arrested.That someone is an actor and activist who made the mistake of saying nasty things about Jesus and his mom.

Just recently we wrote about how a guy in France, Michael Francois Bujaldon, who had been sued in the US and accused of securities and real estate fraud, had apparently been using the GDPR's right to be forgotten features to get the court docket about this lawsuit deleted from the web (in at least one case) or have his name removed from it (in the other). Our story focused on the situation with the website PlainSite, which is run by Aaron Greenspan and hosts tons of public court dockets. In our comments, it was interesting to note that at least one person seemed hellbent on trashing Greenspan. Greenspan and I have had our own differences throughout the years, and he has been a vocal critic of the way I've covered him in the past, but these comments seemed to go way over the line.And now, Greenspan informs me that someone is trying to get his original tweet -- which alerted me to this abuse of the GDPR to delete public documents -- disappeared from the internet as well. On Wednesday morning Greenspan discovered that both his PlainSite Twitter account and his personal Twitter account were "limited" due to reports. It's unclear why his personal account was limited, but Twitter told him that his original tweet about Bujaldon violated its rules on "posting personal information."It is difficult to see how a tweet that simply reads "French scam artist Michael Francois Bujaldon is using the GDPR to attempt to remove traces of his United States District Court case from the internet. He has already succeeded in compelling PacerMonitor to remove his case. We have 24 hours to respond" (and then links to the PlainSite docket) could possibly violate any Twitter rules, but the company told him he needed to delete the tweet in question:Once again, we're in a situation where if you hand people tools to delete content they dislike -- whether it's a DMCA takedown process, a GDPR "right to be forgotten" or a private platform's "report abuse" button -- some percentage of people are going to abuse that. And, as we've discussed many times, with the private platform decision making process involving overworked, underpaid workers who have to make determinations on each "report" with about 5 seconds to consider the report, many, many mistakes are going to be made. This is yet another one, and is yet another example of why we should be careful about giving people even more tools for deleting content.

The problem with giving law enforcement access to so many databases full of personal info and so many tech tools to fight crime is that, inevitably, these will be abused. This isn't a law enforcement problem, per se. It's a people problem. When the job demands the best people but still needs to maintain minimum staffing levels, things like this happen:

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One of the reasons why I'm so adamant about the negative impacts on free speech from making internet platforms liable for the speech of their users, or even just by pushing for greater and greater content moderation by those platforms, is that this is not a theoretical situation where we have no idea how things will play out. We have reams and reams of evidence, just in the US alone (and plenty outside of the US) by looking at the copyright world. Remember, while CDA 230 makes platforms immune from a civil lawsuit regarding content posted by users or for any moderation choices regarding that content, it exempts intellectual property law (and criminal law). On the copyright side, we have a different regime: DMCA 512. Whereas CDA 230 creates a broad immunity, DMCA 512 creates a narrower "safe harbor" where sites need to meet a list of criteria in order to be eligible for the safe harbor, and those criteria keep getting litigated over and over again. Thus, we have quite a clear parallel universe to look at concerning what happens when you make a platform liable for speech -- even if you include conditions and safe harbors.And it's not good.Corynne McSherry, EFF's legal director has put together an excellent list of five lessons on content moderation from the copyright wars that should be required reading for anyone looking to upset the apple cart of CDA 230. Incredibly, as someone who lives and breathes this stuff every day, it's quite incredible how frequently we hear from people who haven't looked at what happened with copyright, who seem to think that the DMCA's regime is a perfect example of what we should replace CDA 230 with. But... that's only because they have no idea what a complete and total clusterfuck the copyright/DMCA world has been and remains. Let's dig into the lessons:

If you hadn't noticed, the telecom industry has been on a tear lately, completely dismantling most government oversight of its natural monopolies. From killing net neutrality to gutting FCC and state authority to rein in ISP bad behavior, companies like AT&T dream of a future where neither competiton nor even modest regulatory oversight prevent it from its god-given mission to rip off and otherwise overcharge the company's largely captive customer bases.At the same time, AT&T is now part of a coordinated effort between the telecom sector and the Trump administration to saddle Silicon Valley giants like Facebook and Google with additional regulation while demonizing them as out of control monsters. Why? As AT&T and Comcast push deeper into the online ad industry, they're looking for any advantage they can get against entrenched search and social media giants. And, given their political power, domination of the broadband last mile, and the government's apathy to both problems, those advantages run deep.At the heart of this little stage play sits our national conversation about what new privacy laws might look like. Last week, the Senate Commerce Committee held a hearing consumer advocates weren't even invited to. Instead, companies with utterly terrible track records of privacy abuses were given starring roles in dictating just what said privacy legislation should look like. That included Facebook but also AT&T, which for weeks has been quick to claim on multiple fronts that it just really, really, loves the idea of comprehensive privacy protections for consumers:

New Zealand's "digital strip searches" of travelers' electronic devices are now backed by law. When we covered this last year, customs officials were already seizing devices and performing invasive searches. But a new twist has been added with the enactment of New Zealand's most recent customs law: compelled password production.

Techdirt has written a number of stories recently about unfortunate developments taking place in the African digital world. The Alliance for Affordable Internet (A4AI ) site has usefully pulled together what's been happening across the continent -- and it doesn't look good:

The Institute for Justice has secured a big win in Philadelphia. The city's asset forfeiture program is being torn down and rebuilt as the result of IJ litigation.

As expected, the broadband industry filed suit against the state of California today over the state's shiny new net neutrality law. The lawsuit (pdf), filed in US District Court for the Eastern District of California, echoes many of the same arguments made in the DOJ's own recent lawsuit against the state. For a moment, let's just stop and pause to appreciate the fact that the federal government is now, with zero pretense, officially working hand in hand with some of the least-liked monopolies in America to ensure their right to be able to screw you over.It if it wasn't so obnoxious with so many far-reaching impacts on consumer welfare, internet health, and competition--it could be deemed high art.ISP lawyers argue California's state law violates the dormant commerce clause of the Constitution (they've previously, unsuccessfully, tried to argue that net neutrality also violates their First Amendment rights). Both lawsuits rely heavily on language embedded in the FCC's net neutrality repeal (at direct Comcast and Verizon lobbyist behest) attempting to prohibit states from stepping in and filling the consumer protection void. This "preemption" language, the broadband industry insists, directly prohibits states from protecting consumers from bumbling telecom monopolies:

There's an old saying in statistics: figures don't lie, but liars figure. Nowhere is this more the case than when you hear numbers streaming from the mouths of those in the anti-piracy business and copyright industries. Examples of this are legion, from the infamous practice of Hollywood accounting rendering hilariously successful films to red-ink status, to bogus piracy costs, to industry claims that rely on every download being a lost sale, to the overall prevalence of piracy statistics more generally speaking. While MUSO, the antipiracy outfit out of Europe, has made some recent noise about copyright holders tweaking their business models to reduce piracy instead of whining about, it has also participated in this liars-figuring practice.A great example of that can be found in MUSO's recent partnership with the Association of Independent Music (AIM), where the latter has put out a press release about just how much great work MUSO has performed in taking down pirated content in the past four months.

Police body cameras are the savior that failed to materialize. Accountability was the end goal, but obstacles were immediately erected by internal policies, cop-friendly legislation, and existing public records carve-outs for anything "investigation"-related.Making things worse are the officers themselves. When excessive force or other unconstitutional tactics are deployed, body cams seem to malfunction at an alarming rate. And that's only if officers can be bothered to turn them on at all. Body cams have served up a bunch of exonerating footage and delivered evidence to prosecutors, but have done little to make law enforcement more accountable.This trend isn't in any danger of reversing. Body cam manufacturers are seeking to expand their offerings, but the focus appears to be on giving law enforcement the extras it wants, rather than what the public is actually seeking. A good summary of recent body cam developments by Sidney Fussell at The Atlantic contains a discussion a new patent application by body cam manufacturer Digital Ally.While the patent application contains some nice "triggering" effects that may result in more captured footage of questionable incidents, it also contains something that would turn passive recordings into active surveillance.

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Before FOSTA became law, plenty of experts in the space tried to warn everyone that a bill that was frequently promoted as being necessary to help "save the lives" of vulnerable women involved in sex trafficking, would actually put more lives at risk. And we've already had some evidence to support that this prediction was entirely accurate. Various law enforcement officials have been complaining that it's now more difficult to catch sex traffickers.And, now the Associated Press has a big article looking at the impact of FOSTA and it's not pretty. The closing down of various online forums for sex workers has driven more sex workers into the street, where their lives are at significantly higher risk:

With net neutrality on the ropes, major U.S. carriers continue to experiment with new ways to nickel-and-dime their subscribers. One of the cornerstones of this new effort involves erecting arbitrary restrictions, then charging mobile consumers extra money to overcome them. Case in point: Sprint's attempt to charge users more money if they want to avoid arbitrary throttling of games, video, and music. Another example: Verizon's decision to throttle all video on its network to 480p unless you pay the company for a more expensive, not really "unlimited" data plan.While carriers like to insist that they only throttle user wireless connections in cases of network congestion, a recent study explored how that wasn't remotely true. Carriers are increasingly throttling connections just to create arbitrary restrictions, and these restrictions, more often than not, have less and less to do with actual network congestion, and more and more to do with nickel-and-diming subscribers:

The Chinese government is rewriting history in its own distorted self-image. It wants to distance itself from its unseemly past, so it's retconning history through selectively-edited educational material and blatant censorship. Sure, the Chinese government has never been shy about its desire to shut up those that don't agree with it, but a recent "heroes and martyrs" law forbids disparaging long dead political and military figures.The government alone will decide how much praise must be slathered on designated "heroes and martyrs." Criticism has been banned, so citizens are at least clear on that aspect. The law went into effect on May 1st, immediately leading to the ban of a Chinese "rage comic" site. This site is the first to be successfully sued under the new law.

Everyone who knows me knows I love two things more than anything in this world: animals... and puns. And, to my delight, much of the pet industry considers using puns as something of a religion. You've all seen this, with groan-worthy names of pet stores, doggie daycares, and treat makers. And because the world simply can't be a fun place in which to exist, sometimes these punny names cause intellectual property disputes, such as when the Prosecco people managed to oppose a trademark for a pet treat named "Pawsecco", or when a real-life human being hotel called the Chateau Marmont sent a cease and desist notice to the Cateau Marmont, a hotel for, I don't know... raccoons?And now one fashion designer has decided to oppose the trademark for a maker of parody pet clothing, arguing ostensibly that the public both cannot tell the difference between human clothes and pet clothes, as well as that this same public doesn't have a sense of humor.

It's pretty difficult to have been on the internet over the past year or so and not come across the distracted boyfriend meme. It has been everywhere. And, unlike many other memes, this one's popularity has shown little sign of waning. If somehow you did miss it, uh, welcome back to the internet after a year away? The meme involves a stock photo of what appears to be a guy checking out a girl who just walked by him, while his somewhat unhappy girlfriend looks angrily at him. Then to make it "meme-like" you put captions over all three characters. Here was one of the early ones that kicked off the meme:There are thousands of other ones, some of which are actually kinda funny.The reason this is in the news again is that the Swedish ISP Banhof attempted to use the meme in an advertisement on Facebook and Instagram:A bunch of people complained that the ad was sexist, and reported it to the Swedish Advertising Ombudsman, who recently agreed that the ad was sexist.

This week, we've got a special cross-post from Rob Reid's excellent After On podcast. After a conversation between Mike and Rob about the possible end of the world, we pivot to the full episode of After On in which Rob talks to neuroscientist David Eagleman about his fascinating work using technology to create new human senses. We hope you enjoy it!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The only surprise about this is that it took this long to happen.

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

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The DOJ is now 0-for-2 in encryption-breaking cases. The DOJ tried to get a judge to turn an All Writs Order into a blank check for broken encryption in the San Bernardino shooting case. Apple pushed back. Hard. So hard the FBI finally turned to an outside vendor to crack the shooter's iPhone -- a vendor the FBI likely knew all along could provide this assistance. But the DOJ wanted the precedent more than it wanted the evidence it thought it would find on the phone. It bet it all on the Writ and lost.Other opportunities have arisen, though. A case involving wiretapping MS-13 gang members resulted in the government seeking more compelled decryption, this time from Facebook. The FBI could intercept text messages sent through Messenger but was unable to eavesdrop on calls made through the application. Facebook claimed it didn't matter what the government wanted. It could not wiretap these calls for the government without significantly redesigning the program. The government thought making Messenger less secure for everyone was an acceptable solution, as long as it gave investigators access to calls involving suspected gang members.The case has proceeded under seal, for the most part, so it's been difficult to determine exactly what solution the government was demanding, but it appears removal of encryption was the preferred solution, which would provide it with future wiretap access if needed. If this request was granted, the government could take its paperwork to other encrypted messaging programs to force them to weaken or destroy protections they offered to users.The ruling in this case is still under seal, but Joseph Menn and Dan Levine of Reuters were able to obtain comments from insiders familiar with the case to determine the outcome.

Europe really seems to have it in for the internet these days -- from the GDPR to antitrust actions to the Copyright Directive to the Right to be Forgotten, almost every legal issue popping up in Europe is coming out terribly for innovation and the public's ability to communicate freely with one another. The latest may seem a bit more narrowly focused, but it could be super important. As described on the always wonderful IPKat blog, the Paris Tribunal heard a complaint brought against Twitter by the French Consumers' Association challenging the validity of Twitter's terms of service for a whole long list of reasons.But just to keep this more focused we'll discuss the part that matters to us: the copyright license. We've discussed the "copyright license" terms (that basically every online platform has somewhere in the terms) a few times in the past -- mainly because every so often someone totally misreads or misunderstands it and a huge, viral, and totally misleading freakout occurs. That's because basically any service that hosts user content has some basic term that effectively says "when you're posting something to our site, you are granting us a perpetual license to host it on this and future iterations of our site, and that extends to other sites where our stuff might appear." That's the plain language version of it, but some people act as if it's an outrage that a platform is claiming that it can have such a broad license to include the content on future sites or with partners. Many -- incorrectly -- claim that this means that the sites are planning to "sell" your content to third parties. That's not the case. The clause really just allows for things like "embedding" where the same content will appear on other sites, and that alone shouldn't be seen as an infringement. So you're licensing the content for such uses.But, some people still find this offensive... and apparently that includes the Paris Tribunal. Twitter's terms attempt to explain this situation pretty clearly:

World governments continue to believe Twitter is the best conduit for oppression. Twitter is the main target of Turkish president Recep Erdogan's loutish attempts to mute dissent and criticism. Other countries find Twitter's speedy delivery of punchy content a constant threat to their power and routinely block their citizens' access to the microblogging site.Twitter is too compliant too often, so the cycle of dissent-crushing continues. Twitter will push back now and then but, like other service providers, often places market share ahead of protecting users from their encroaching governments.Brazil's government was hoping to speak to a more compliant Twitter when complaining about mean tweets, but the call appears to have been answered by the steelier side of its international relations unit.

Back in June, we talked about a fun little bit of trolling that Xbox and Nintendo teamed up for at the expense of Sony and its PlayStation 4. At issue was Sony's longstanding stance against inter-console play for multiplayer games that would otherwise allow for it, whereas Xbox and Nintendo players all over the world were happily playing MineCraft and Fortnite against one another. The end result of Sony's stance has been both a decent level of frustration by gamers that expect modernity in their console's features, and several YouTube videos and Twitter exchanges between Xbox and Nintendo highlighting that their own consoles had inter-console functionality. In that post, we said it was an open suggestion whether or not this public ribbing would change Sony's stance on the subject.Narrator: it changed Sony's stance on the subject.

While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect.Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward).Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement.Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments:

Going all the way back to 2012, we were highlighting why a copyright "small claims court" might be problematic. It's been in discussion for a long, long time. There are some legitimate complaints from copyright holders that bringing a federal case is kind of expensive. But that's because it should be expensive. When Congress got serious about this issue back in 2016, we wrote about how it would be a huge tool for copyright trolls. Earlier this year lawyer Cathy Gellis explained how the law was a total disaster, in that it was built with the assumption that all copyright claims are legitimate ones. But that's a laughable claim -- as copyright lawsuits (and threats of lawsuits) are quite frequently used either to just shake people down for money or as a way of suppressing free speech.Make it even easier to sue over copyright, and you can bet that it will be used much more often -- meaning with significantly more abuse.We also had a guest post from lawyer Robert S. Schwartz, highlighting a very important point. One of the reasons why, historically, copyright law hasn't been as big of a concern for suppressing free speech was because of copyright toleration. That is, even though basically everyone infringes on many people's copyrights every single day, we've mostly "tolerated" many infringements, because common sense tells us that the law couldn't have been meant for such things.But, as we lower the barriers to filing a copyright lawsuit, we throw this "toleration" out the window, and, with it, we open the floodgates for censorship. Congress is, once again, considering creating a small claims court for copyright, HR 3945, or the CASE Act. The House Judiciary Committee turns copyright and speech into speeding tickets:

An NSA employee will be headed to prison for inadvertently exposing the agency's malware stash.

So let's be clear about something: the Ajit Pai FCC's repeal of net neutrality was already a mammoth fuck you to the American public, open competition, and a healthy internet. The effort to neuter the rules was based on bogus telecom lobbyist data, lots and lots of shady behavior, and oceans of complete nonsense. And while folks like Ajit Pai like to speak loftily about his noble effort to "strip away burdensome regulations," the reality is that killing net neutrality served one real purpose: giving natural telecom monopolies the green light to (ab)use a broken, uncompetitive broadband market to screw consumers and competitors alike.When the FCC killed these overwhelmingly popular consumer protections it wasn't just killing net neutrality, it was killing the federal government's ability to adequately hold lumbering telecom monopolies accountable on the federal level. In addition to neutering the FCC and shoveling any remaining, fleeting oversight to an FTC ill-equipped for the job, ISPs convinced the Trump administration to also try to prevent states from filling the void. As such, both Comcast and Verizon successfully lobbied the FCC to include language in the net neutrality repeal "preempting" (read: banning) states from holding giant ISPs accountable as well.Again the goal here is obvious: to eliminate any meaningful state or federal oversight of natural telecom monopolies, which will now be left unchecked by neither regulatory oversight nor meaningful competition.This little gambit came to a head over the weekend, when California Governor Jerry Brown signed the state's shiny new net neutrality law. That law took an incredible collaborative effort to pass, after ISPs tried to neuter most of the bill's key components via procedural gamesmanship, and even took to lying to senior citizens about the proposal in misleading robocalls. The public backlash to these efforts forced the California Assembly and Senate to pass the law in late August, before Brown (amid some uncertainty) signed the bill yesterday afternoon.Within hours of Brown's signing the bill, the Department of Justice announced it would be suing California, insiting that California's consumer protections were, mystically, somehow "unlawful and anti-consumer":

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Well, this is depressing. Back in 2016, we wrote about yet another copyright infringement case where we feared the impact on creativity in music. At issue was whether or not the band Led Zeppelin had infringed on the copyright of Randy Wolfe (aka Randy California) who had written the song Taurus for his band Spirit. Taurus has some similarities to Led Zeppelin's classic "Stairway to Heaven":If you listen to that, you might think that the two songs sound pretty similar at points, and thus perhaps Led Zeppelin copied Taurus, violating the copyright on the song. But things are much more complicated than that. For example, it certainly could be argued that both of those songs actually sound remarkably similar to J.S. Bach's Bouree In E Minor, which is absolutely in the public domain:As that video shows, the same basic melody can be found in a bunch of songs, including Henry Purcell's "Dido's Lament" (which predates even the Bach song), as well as Rogers and Hart's "Funny Valentine," Arthur Hamilton's "Cry Me A River" and a bunch of other songs, which all predate Taurus. This is, of course, the nature of music. There are themes and melodies and concepts and cord structures that get repeated over time, sometimes by accident, sometimes through homage, and sometimes by coincidence.So when it comes to copyright it's important to look at what is actually covered by the copyright, which goes way beyond "hey, do these songs sound similar?" Unfortunately, many courts have messed this up over the years, including a few that came up with a ridiculous "substantial similarity" test, rather than actually comparing the copyright-protected elements of the songs. One such case that got this wrong is the infamous Blurred Lines case, in which even though the copyright-protected elements of two songs were totally different, it was decided that there was copyright infringement.That's why we were pretty stunned, back in the summer of 2016 that a jury sided with Led Zeppelin. Part of the reason why that worked was that the jury was not allowed to just listen to the two songs, because the copyright on the sound recordings was not at issue (indeed, at the time of Taurus, there was no federal copyright to be had on the sound recording). Thus, they had to look at what was actually covered by copyright, which is much more limited. Of course, this is the correct way to do things, because if we're looking for copyright infringement, it seems ridiculously unfair to allow the jury to be influence by content that is not protectable under copyright.So, the end result in the district court was the right one. But... this is the 9th Circuit we're talking about, and when it comes to copyright, it will always figure out how to make things worse. And that's what it's done by vacating the original order and ordering a brand new trial, with conditions that will make life much more difficult for Led Zeppelin (hat tip to Eriq Gardner at The Hollywood Reporter for spotting this first).The ruling, by Judge Richard Paez, should be anger-inducing for copyright nerds. It basically picks up on a few earlier cases that make the nonsensical claim that if you have greater "access" to the earlier work, a copyright plaintiff needs to show less similarity to argue copyright infringement:

The FCC is once again being accused of blindly letting the telecom sector's biggest companies dictate federal policy. The FCC this week voted to move forward (pdf) with a plan that the agency claims will speed up deployment of fifth-generation (5G) wireless. Under this carrier-backed proposal, cities will be limited in terms of how much money they can charge carriers to place cell technology like small cells on government property in public rights of way (traffic lights, utility poles). It also imposes strict new timelines and operational restrictions making it harder for localities to stand up to giant nationwide cellular carriers.On its surface, the FCC is framing these changes as a necessary shift to speed up broadband deployment and eliminate cumbersome bureaucracy as the U.S. engages in a "race to 5G" with other countries. But the upgrading of wireless networks isn't a race, 5G itself has been aggressively over-hyped as a panacea for a broken market, and cities say the FCC's new plan is largely about saving money for wireless carriers, while tying the hands of cities, counties and towns trying to improve connectivity to rural markets.For example, the city of Philadelphia filed a complaint with the FCC (pdf) stating that the new FCC caps barely cover the costs cities incur for doing due diligence on network hardware placement, and clash with the existing, long-established systems of approval already erected on the local level:

The CBP has drones. How many, it's not really sure. It depends on when you ask. Or how you ask. The EFF's FOIA lawsuit against the agency caused it to suddenly "remember" it had deployed drones 200 more times than it had previously disclosed.The CBP's drones are a lending library for US law enforcement agencies. An audit of the program found the CBP's drones were more often used by others than by the agency owning them, despite this agency being charged with patrolling thousands of miles of US border -- something that might be aided by some additional eyes in the skies.But the eyes were worthless. The Inspector General concluded it was an airborne boondoggle. The CBP wasn't malicious, just inept. As the IG saw it, the half-billion slated for drone use would be better spent on more personnel and ground-based surveillance.Nevertheless, the drones continue to fly. When not straying far from the border to aid inland law enforcement agencies, the agency's unmanned aircraft are still aloft, engaging in surveillance no one can really say for certain is 100% legal. The Inspector General's latest report [PDF] shows the CBP has done very little to ensure its drone deployments are secure or legally-compliant.

This week, our first place winner on the insightful side is That One Guy in response to the police actually admitting fault in a SWAT raid on the wrong address, for once:

Five Years AgoThis week in 2013 we learned that, despite the White House's denials, the review of NSA surveillance was indeed overseen by James Clapper. The NSA was complaining about how it had to spend time closing leaks while its apologists were out in force, with some trotting out the old "privacy is dead" argument and, of course, incoming FBI director James Comey saying it was all good and legal. The critics were out in greater force, though: the New York Times called for the NSA to be barred from requiring surveillance backdoors, the president of Brazil blasted the US in front of the United Nations, Senator Leahy gave a speech condemning the agency's practices, and a bipartisan group of lawmakers introduced comprehensive surveillance reform legislation.Ten Years AgoThis week in 2008, while companies were waking up to the absurd trademark restrictions around the Olympics, Major League Baseball surprised us by backing down from a takedown notice in the face of a well-crafted fair use defense. A Spanish court upheld the idea that deep linking is not infringement, a Ugandan composer was suing the government for copyright infringement over the national anthem, and the European Parliament rejected the idea of three strikes laws for file sharing. Back in the US, the judge in the Jammie Thomas case declared a mistrial, the Senate passed the bill creating a copyright czar, and Arts+Labs emerged as a new anti-piracy lobbying supergroup.Fifteen Years AgoThis week in 2003, we talked once again about how infringement isn't theft, and also how in fact what the RIAA does is a lot closer to stealing. Of course, studies unsurprisingly showed that file sharing wasn't going away, and smarter upstart record labels were starting to see it as an ally, but the RIAA was still stuck keeping an eye on innocent people. We also took a look at how the MPAA's mistakes were uniquely flavored and different from the RIAA's, but the BSA was taking a direct lesson from the RIAA with its offer of amnesty to confessed pirates (and its doom-and-gloom soothsaying about software piracy).

This month's stupid patent describes an invention that will be familiar to many readers: a virtual reality (VR) system where participants can interact with a virtual world and each other. US Patent No. 6,409,599 is titled "Interactive virtual reality performance theater entertainment system." Does the '599 patent belong to the true inventors of VR? No. The patent itself acknowledges that VR already existed when the application was filed in mid-1999. Rather, it claims minor tweaks to existing VR systems such as having participants see pre-recorded videos. In our view, these tweaks were not new when the patent application was filed. Even if they were, minor additions to existing technology should not be enough for a patent.The '599 patent is owned by a company called Virtual Immersion Technologies, LLC. This company appears to have no other business except patent assertion. So far, it has filed 21 patent lawsuits, targeting a variety of companies ranging from small VR startups to large defense companies. It has brought infringement claims against VR porn, social VR systems, and VR laboratories.Virtual reality was not new in mid-1999. The only supposedly new features of the '599 patent are providing a live or prerecorded video of a live performer and enabling audio communication between the performer and a participant. Similar technology was infamously predicted in the Star Wars Holiday Special of 1978. In this sense, the patent is reminiscent of patents that take the form: "X, but on the Internet." Here, the patent essentially claims video teleconferencing, but in virtual reality.Claim 1 of the '599 patent is almost 200 words long, but is packed with the kind of mundane details and faux-complexity typical of software patents. For example, the claim runs through various "input devices" and "output devices" assigned to the "performer" and "participant." But any VR system connecting two people will have such things. How else are the users supposed to communicate? Telepathy?Like many software patents, the '599 patent describes the "invention" at an absurdly high, and unhelpful, level of abstraction. Any specific language in the patent is hedged to the point that it becomes meaningless. The "input devices" might be things like a "keypad or cyberglove," but can also be any device that "communicate[s] with the computer through a variety of hardware and software means." In other words, the "input device" can be almost any device at all. The patent suggests that the "underlying control programs and device drivers" can be written in "in many different types of programming languages." Similarly, the "network communication functions" can be accomplished by any "protocols or means which may currently exist or exist in the future." The overall message: build yourself a VR system from scratch and risk infringing.RPX filed an inter partes review petition arguing that claims of the '599 patent were obvious at the time of the application. The petition argues, persuasively in our view, that earlier publications describe the supposed invention claimed by the '599 patent. The inter partes review proceeding has since settled, but any defendant sued by Virtual Immersion Technologies, LLC can raise the same prior art (and more) in their defense. Unfortunately, it is very expensive to defend a patent suit and this means defendants are pressured to settle even when the case is weak.The '599 patent highlights many of the weaknesses of the patent system, especially with respect to software patents. First, the Patent Office failed to find prior art. Second, the patent claims are vague and the patent isn't tied to any concrete implementation. Finally, the patent ended being used to sue real companies that employ people and make things.Republished from the EFF's Stupid Patent of the Month series.

Facebook is probably not having a very good week concerning its privacy practices. Just days after it came out that -- contrary to previous statements -- the company was using phone numbers that were submitted to Facebook for two-factor-authentication as keys for advertising, earlier this morning the company admitted a pretty massive data breach in which its "view as" tool was allowing users to grab tokens of other users and effectively take over their accounts (even if those users had two factor authentication enabled).This is, as they say, "really, really bad." It turned the "view as" feature -- which lets you see how your own page looks to other users -- into a "take over someone else's account" feature. That's a pretty big mistake to make for a product used by approximately half of the entire population of the planet. I'm sure there will be much more on this, but a few hours after the announcement, Facebook had another headache to deal with: numerous reports said that people trying to post articles about this new security mess from either the Guardian or the AP, were getting that action blocked, with Facebook's systems saying that the action looked like spam:If you can't read that, it says:

Like many companies, Apple has been trying to disrupt the traditional television sector for years. But like countless companies before it, Apple has repeatedly run face-first into a cable and broadcast industry that's aggressively resistant to actual change. As a result, Apple's efforts to launch a TV service have been comically delayed for years as cable and broadcast companies (worried that what Apple did to the music industry would also happen to the TV sector) tightly restricted how their content could be used if the approach varies too far from accepted industry norms.So despite Steve Jobs insisting that Apple had "cracked the code" on a next-gen TV set as early as 2011 -- and efforts to strike licensing deals that have been ongoing since at least 2012 -- nothing much has really come from Apple's promised revolution on the television front.In the years since, numerous streaming providers (Dish's Sling TV, AT&T's DirecTV Now, Sony's Playstation Vue) have jumped into the sector, and Apple is definitely a late arrival. As such, the looming TV service Apple appears poised to launch seems to be very much a derivative offering that isn't likely to disrupt the sector all that much. A report in the Wall Street Journal (paywall, see Gizmodo's alt. take) notes that Apple has set aside $1 billion for original programming, but Tim Cook's fears that the service could tarnish Apple's pure brand image appear to be causing some notable problems.The report noted how at least one project fled to Amazon after Apple tried to tightly restrict the show's political commentary. And the kind of comically inconsistent restrictions that tend to plague Apple's app store appear to have made their way to the company's looming TV service, including a ban on, of all things, crosses:

For years, we've pointed out the dangers of the attempts to move the "policing" function up the internet stack (or down the internet stack, depending on your perspective) from the end-user internet services deeper to infrastructure players. We just recently warned about the mess that will be created by focusing on infrastructure players. Indeed, for years, we've worried about targeting domain registrars with takedown notices. There are a variety of reasons for this: first off, registrars are not at all prepared to be in the content moderation business. They just run a database. But, more importantly, their only tool to deal with these things is incredibly blunt: to effectively turn off an entire site by not allowing the URL to resolve.And yet, there's increasing pressure for registrars to police the internet. This is mostly because of people (starting with the legacy copyright players, but others as well) over-hyping the fact that if some content/services are taken down, it just pops back up somewhere else. So, those who focus on censorship try to look further and further along the stack to see where they can block even more.A story this week shows just how damaging this can be. Zoho is a very popular online service provider of tools for businesses. We've used Zoho a bunch at times, as they offer a really nice and fairly comprehensive suite of business apps at prices that are much more affordable than many of the larger players (while often being just as good, if not better). But earlier this week Zoho disappeared from the internet for a lot of users, after its registrar, Tierranet pulled the plug on their service, claiming it had received too many complaints of phishing attempts via Zoho. Zoho points out in response that (1) it had received a grand total of three reports from Tierranet of attempting phishing, and it had promptly removed the first two accounts and was in the process of investigating the third when all this went down, and (2) it received no warning that Tierranet was about to pull the plug on them and was given no way to reach out to the company in this emergency situation (leading the company to take to Twitter to try to get attention).But, because Tierranet decided it needed to "police the internet" with its ridiculously blunt tool of completely removing an entire service from the internet -- despite its millions of users who rely on it for critical business services -- Zoho was put in the unenviable position of trying to explain why its entire suite of services completely disappeared. Apparently, (according to Zoho's explanation) Tierranet will automatically cut off websites after receiving three complaints -- which is astounding. It's even more astounding that a service the size of Zoho only received three such complaints. In a detailed post mortem / apology, the company says it's going to become its own registrar to avoid having anything like this happen again.

Lawsuits and intellectual property disputes revolving around the Star Trek franchise are legion. This is largely due to just how massive and popular the franchise has been over the past decades and into the present. Still, we've seen all kinds of examples of how either the disputes are frivolous or silly, or cases in which IP owners had so many options open to them other than bullying and suing but chose to ignore those alternative routes.That brings us to Stage 9, a non-commercial labor of love put together by fans of Star Trek: The Next Generation. Stage 9 is the virtual recreation of TNG's Enterprise starship that allows fans of the series to explore the beloved vessel and immerse themselves in the chief setting of the series. Stage 9 has been built over the past two years by creators that have taken great pains to state that the project was not affiliated or licensed with CBS or Paramount and that they weren't doing this to make money, only to artistically demonstrate their fandom.As you've probably already guessed, all that was for nothing as CBS sent them a cease and desist letter anyway.

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