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Going back many years now we've written about the company Personal Audio, which built itself up as a patent troll for digital audio. Back in 2011, it won a patent lawsuit against Apple over patents on playlists. In 2013, as podcasting was starting to take off, Personal Audio decided that one of its other patents actually covered podcasting as well and sued some top podcasters while threatening many others. EFF stepped in to use the valuable inter partes review process to seek to invalidate the patent, which worked. Though, in the process the company sought to intimidate EFF donors.While all of this was happening, the company also realized that podcasters don't make any money, and figured out how to dump its lawsuits against individual podcasters... while still going after large companies like CBS.After the Patent Office's appeals board (PTAB) invalidated the patent, Personal Audio went to court to overturn the ruling. Last year, an appeals court rejected that attempt, noting that the PTAB was correct in invalidating the patent. Personal Audio still kept fighting, and asked the Supreme Court to hear it's appeal.Thankfully, on Monday, the Supreme Court denied that request, meaning that Personal Audio's podcasting patent is finally, truly and completely, dead.Still, the fact that this process took about five years and a ton of time in court should demonstrate just what a drag bogus patents can be on the economy and innovation. It also shows just how valuable a bogus patent can be for the trolls that hold them. Even after Personal Audio realized that all the podcasters it was trying to shakedown had little money to hand out, it still fought to the bitter end in trying to keep the patent alive, knowing that it could successfully get larger media companies to pay up. So this is a victory, but also a demonstration of just how broken the patent system is. Personal Audio did nothing to help podcasts become a thing. It did nothing to help podcasts move forward or become popular. Its only contribution to the podcast world was to wreak havoc on a bunch of podcasters, scaring many of them and costing them a ton of money in legal fees. That's all a dead weight loss to the economy, that could have gone into making more and better content.

The FBI continues its push for a solution to its "going dark" problem. Joined by the DOJ, agency head Christopher Wray has suggested the only way forward is a legislative or judicial fix, gesturing vaguely to the thousands of locked phones the FBI has gathered. It's a disingenuous push, considering the tools available to the agency to crack locked devices and obtain the apparently juicy evidence hidden inside.The FBI hasn't been honest in its efforts or its portrayal of the problem. Questions put to the FBI about its internal efforts to crack locked devices are still unanswered. The only "new" development isn't all that new: Ray Ozzie's "key escrow" proposal may tweak a few details but it's not that far removed in intent from the Clipper Chip that kicked off the first Crypto War. It's nothing more than another way to make device security worse, with the only beneficiary being the government.The FBI's disingenuousness has not gone unnoticed. Efforts have been made over the last half-decade to push legislators towards mandating government access, but no one has been willing to give the FBI what it wants if it means making encryption less useful. A new bill [PDF], introduced by Zoe Lofgren, Thomas Massie, Ted Poe, Jerry Nadler, Ted Lieu, and Matt Gaetz would codify this resistance to government-mandated backdoors.

No matter what you might think of the various legal fights involving Stormy Daniels, her lawyer, Michael Avenatti, is making quite a name for himself over the past couple of months -- partly for his legal strategy, partly for breaking news about Michael Cohen and Donald Trump, and partly for constantly appearing on TV at what appears to be every possible opportunity. Even if you happen to support his dogged focus on calling out Cohen and Trump, it is worth noting that Avenatti seems to fall into the camp of a few other lawyers in filing and threatening completely bogus defamation threats trying to silence people. Last month, there was some news when Daniels, represented by Avenatti, sued Donald Trump for defamation over a tweet of Trump's.I could probably write 90,000 words just to give you a basic background of how we got here, but assuming you follow at least some of the news around this, the short version is that Daniels claimed on 60 Minutes that a few years back she was threatened in a parking lot by a man who told her to leave Trump alone. There was some dispute about the veracity of this claim, and Daniels eventually had a sketch artist draw what the guy looked like, leading Trump to then tweet: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels sued over this tweet, calling it defamatory.As First Amendment lawyer Ken "Popehat" White notes, this is a "very weak" case, and there are a whole bunch of reasons why Trump is likely to get it dismissed -- including that previous courts have ruled that Trump's tweets can't be taken literally, and a fairly strong argument that Trump's tweets are opinions based on disclosed facts, rather than false factual statements themselves (not to mention the high bar needed to show that Trump's tweets involved knowledge of falsity or reckless disregard for the truth -- while Trump may, in general, have a reckless disregard for the truth, that's not going to meet the legal standard for a defamation case). First Amendment lawyer Marc Randazza went, shall we say, a bit further in suggesting that Avenatti's lawsuit was a bad idea. You can read that entire link on why the lawsuit may backfire on Daniels/Avenatti, or it can be summed up in the following tweet from Randazza:If you can't read that, it's Randazza responding to Avenatti's tweet about the filing of the lawsuit with the following (*cough*) professional assessment:

Thickness of skin appears to be inversely proportional to the amount of power one has. This has been shown again and again. It often makes high-powered "victims" appears as though the only reason they entered public service was to punish the public for its lack of respect. The lesson never learned is that abuse of power never results in a respect net gain.Because this lesson is seemingly impossible to learn, we get things like this. The West Yorkshire Police proudly announced the smallest of drug busts on its Facebook page.

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The FBI's throwback to its Martin Luther King Jr.-watching heyday has reached the first stop on its way to its eventual nadir. Deciding backlash against violence perpetrated by law enforcement officers had resulted in too many frightening African Americans organizing, the agency decided to place "Black Identity Extremists" under surveillance, claiming this made-up group would "likely" engage in violence against police officers.So far, the agency has yet to secure a prosecution under this theory of extreme blackness. But it has managed to severely disrupt the life of at least one black male.

While U.S. net neutrality protections technically end on June 11, efforts to restore the rules continue. On Wednesday the Senate is now formally scheduled to hold a vote to try and use the Congressional Review Act (CRA) to reverse the FCC repeal. The CRA can reverse a regulatory action with a majority vote in the House and Senate; it's what the GOP and Trump administration used to kill popular broadband privacy rules before they could take effect last year.In a Statement, Senator Ed Markey called the May 16 vote the "most important vote for the internet in the history of the Senate":

At the beginning of the year, the DOJ and DHS teamed up to release a report (very) narrowly crafted to support President Trump's claims about inherently-dangerous immigrants. Known as the "terrorist entry" report, it skewed data and omitted all mentions of domestic terrorism to paint a distressing picture of foreign individuals wreaking havoc on US soil.The omission of domestic terrorism was by design. The Executive Order predicating the report [PDF] specifically called only for numbers on "foreign nationals in the US who have been charged with terrorism-related offenses." That's because those numbers would look pretty unimpressive stacked up against terrorist acts perpetrated by US citizens, as was pointed out by Lawfare's vetting of the report.

Here's a fun thing I never thought I'd find myself saying: the world should take a cue and be more like beer drinkers. Specifically, that is, when it comes to how the beer drinking community reacts to trademark law. Any review of this site's coverage of trademark law as it pertains to the alcohol and beer industries will show that there is a burgeoning problem in this industry, where explosive growth in craft brewing has resulted in a likewise explosive growth in trademark disputes. What's somewhat unique in the industry, however, is the sense of community both between brewers and drinkers and, more importantly, between brewers themselves. This bond has muted what would otherwise be disastrous intellectual property squabbles.And part of that is indeed fueled by the consumers themselves. An example of this can be found in a New Zealand brewer's attempt to trademark a common term in the industry, only to have the public outcry force it to pull back its application.

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation's borders. Most rights are considered to be waived -- especially those affecting privacy -- thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court's Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn't apply within 100 miles of US borders.This precedential decision doesn't cut the government quite as much slack. While it recognizes border security is a national priority, it's not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It's easily covered by the border search exception.

While the world over is dealing with the scourge that is copyright trolling, it is true to say that this virus has not spread everywhere equally. One of the hardest hit countries has been Denmark, where a few copyright trolling practices have caused an insane amount of headaches for the public, and chum within the court systems. It all got bad enough to turn rivals into bedfellows, with two major ISPs, Telenor and Telia, teaming up to push the legal fight to unmask their respective customers back on the copyright trolls. The duo's initial efforts at convincing the legal system that the privacy rights of its customers trumped the rights of copyright trolls to extract settlement cash from them went poorly, with the District Court finding for the copyright trolls.But the fight for customer privacy didn't stop there and the companies appealed the case up to Denmark's higher courts, which decided for the ISPs and consumer privacy.

Good lord. Somehow recent overseas efforts to regulate fake news, hate speech, etc. haven't managed to persuade US government officials to think two or three times before introducing the same sort of legislation. Whatever hasn't been turned into blatant vehicles for government censorship has produced a steady stream of embarrassing collateral damage.In the United States, the First Amendment protects a wide variety of unpopular speech, but that isn't stopping California legislators from trying to govern their way through the "fake news" problem. Eric Goldman reports an effort has been started to put the state in the business of directly regulating online speech.The bill has been heavily edited since its introduction in February. At that point, the Cali legislature wanted to compel social media services to inform users what steps it was taking to protect them from "fake news" as defined by the California government, if and when the government ever gets around to defining exactly what it thinks "fake news" is.

For years now we've noted how a company by the name of Securus has managed to obtain a pretty cozy, government-supported monopoly over prison phone and teleconferencing services. Like any monopoly, this prison monopoly has pretty traditionally resulted in not only sky high rates upwards of $14 per minute for phone calls, but comically poor service as well. It's something advocates (like outgoing FCC staffer Mignon Clyburn) have been trying to rectify for years, only to have Trump FCC boss Ajit Pai completely deflate those efforts last year.But Securus' monopoly -- and the government pampering and cronyism that helped create it -- has other additional costs as well. Interstate inmate calling service (ICS) companies effectively buy their privileged positions from local governments, who then expect some favors in return. For example, Securus was recently accused of routinely spying on privileged inmate attorney communications, information that was only revealed after Securus was hacked in late 2015. Given the generalized apathy for prison inmates and their families ("Iff'n ya don't like high prices, don't go to prison son!") reform on this front has been glacial at best.Meanwhile, the problems caused by these government-sanctioned monopolies continue to pile up. A recent court case has also exposed how some law enforcement officials also make routine use of a Securus service that helps track people’s cellphones without court orders. While the service is marketed to government as a way for law enforcement to track fleeing drug treatment or even Alzheimer's patients, zero oversight means it's routinely abused. In this case, the law enforcement official used the Securus service to not only track members of the general public, but Judges and other law enforcement officials as well:

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Good news for motorists: law enforcement is using something just as unreliable as $2 field drug tests to justify arrests and searches. Field drug tests have been known to declare donut crumbs meth and drywall dust cocaine. Yet they're still in use, thanks to their low price point. A costlier apparatus, used to determine blood alcohol levels during sobriety tests, appears to be just as broken as cheap drug tests.Alcotest, made by German medical tech company Draeger, is used by a large number of US law enforcement agencies. Challenges to test results led to Draeger turning code over to defense attorneys, who soon discovered a lot of variables affected breath tests -- many of which weren't addressed by the device's software or default settings used by officers. Zack Whittaker at ZDNet has the full report:

For many months in the discussion over FOSTA/SESTA, some of us tried to explain how problematic the bills were. Much of the focus of those discussions were about the negative impact it would have on free speech on the internet, as the way the bill was drafted would encourage greater censorship and more speech-chilling lawsuits. But as we heard from more and more people, we also realized just how incredibly damaging the bill was going to be to those it was ostensibly designed to protect. Beyond the fact that it was passed based on completely fictional claims about the size of the problem, those who actually were victims of sex trafficking began explaining -- in fairly stark terms -- how SESTA/FOSTA would put them in greater danger and almost certainly lead to deaths.While supporters of the bill seem to insist that because the bill puts legal liability on platforms that are used for sex trafficking that it will magically make sex trafficking disappear, the reality is more complex. While we can argue about Backpage's complicity in what happened on its platform, for years it was used as a tool to protect sex workers, giving them more control over their lives and who they worked with. As we've pointed in the past, a recent study found that Craigslist, back when it had its "erotic services" section, appeared to decrease female homicide rates by an astounding 17.4%. Backpage picked up the slack when Craigslist was bullied into closing that section, but now it's gone too.And stories are already coming in about the damage done. A recent episode of the Reply All podcast all about SESTA/FOSTA had some scary stats at the end, noting that there are already many stories of sex workers who have gone missing or been killed since the bill became law.Motherboard has a story with much more details, noting that the passing of SESTA/FOSTA has emboldened pimps to take advantage of more victims of sex trafficking. As many sex workers had explained, Backpage actually allowed them to have more control themselves, and helped them get away from pimps. But without Backpage?

Georgia legislators chose to deal with blowback from from some election security gaffes (and the mysterious wiping of servers containing evidence sought in a lawsuit) by introducing a godawful "cybersecurity" bill that would have criminalized security research. The bill passed by the state Senate criminalized password sharing and "unauthorized" access, even if there was no malicious intent.This legislation ran into opposition from everyone but its crafters.

This week, our first place winner on the insightful side is John Snape with an unorthodox suggestion about the police:

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Astro-turfing and fake reviews continue to be plagues upon the online marketplace, creating a wave of distrust with the public when it comes to properly assessing any business via online means. It's impossible to know how big or small a problem this is, which only adds to the distrust in the public, forcing them to assume the worst. All that being said, Valve has actually been pretty good about policing reviews on its gaming platform, Steam, and also making a big public stink about instances in which it has had to take action against developers for trying to game the review system. Studios have had their games pulled from the store entirely, such as when Digital Homicide and Insel Games each had their respective titles pulled. Given that Valve made sure the volume was turned up when it took such actions, one would think that game studios ought to have gotten the message by now.And, yet, not all of them have. Acram Digital, a developer that makes digital versions of board games, just had all of its titles disappeared by Steam when it was discovered that an Acram employee was creating fake Steam accounts and posting fake positive reviews. As it did so, Valve released the following statement.

Another case of asset forfeiture is the subject of a federal lawsuit. Like many others, the plaintiff has obtained the assistance of the Institute for Justice in battling the government for the return of seized assets. In this case, a US citizen saw $41,000 of hers disappear into the government's custody when she attempted to take it to her hometown in Nigeria to start a medical clinic.After detaining her for hours at the airport, the CBP decided it could keep the money Anthonie Nwaorie lawfully earned.

With copyright trolling a business model in full force across the world, we've noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of "evidence" at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

I trust that readers of this site young and old will be familiar with Dr. Dre. The wildly famous rapper has made hit records, produced some of the biggest names in hip hop, been a mogul in the music hardware space with his headphone line, and performed countless pelvic exams on women throughout the American northeast.Wait, that last part can't be right. Surely I was legitimately confused by the existence of Dr. Drai, an OB/GYN in Pennsylvania who dared attempt to get a trademark on his name for his doctor-ly practice. It seems that Dr. Dre has been locked in a trademark opposition with Dr. Drai going on three years, arguing that the absurd example of faked confusion above is actually likely to happen for real.

As you've probably seen, AT&T was recently exposed for paying $600,000 into a shady shell LLC operated by President Trump's "fixer" Michael Cohen. Initially, AT&T tried to claim that the company had simply hired Cohen for "insight" into President Trump. Given AT&T could easily gain said insight into Trump from any number of its lawyers, lobbyists, and above-board consultants (not to mention the ocean of politicians and regulators in its back pocket), the idea they'd pay a dubious NYC "fixer" for such insight never really carried much weight.It seems fairly obvious at this point that AT&T was probably paying Cohen for additional access to the President. A leaked document provided to the Washington Post makes it clear that AT&T hoped to gain some advantage in its business before the FCC (net neutrality, privacy, protectionism, protecting its monopoly power), and its efforts to gain regulatory approval for the company's $86 billion Time Warner merger:

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For many years now we've had fun pointing out the ridiculous claims of the legacy copyright industry execs insisting that copyright infringement funds terrorism. Of course, the evidence for this was seriously lacking. Back in 2011 there was an incredibly detailed, evidence-rich debunking of the claim by Joe Karaganis, showing basically no connection between terrorism and infringement.But, alas, it's a topic that never seems to go away. And now it appears that a design patent lawyer has updated the talking points to now claim that terrorists are infringing on design patents to fund their terroristic activity. First, as a quick refresher: when we talk about patents, we're usually talking about utility patents, which are a monopoly for a new invention or process. Design patents, on the other hand, are really more akin to trademarks, in that they grant a monopoly on the look of something. The idea that ISIS is out there infringing on, say, the look of someone's fancy belt buckle or a new planter is just sort of ludicrous on its face. But it certainly didn't stop big shot patent lawyer Robert Katz from making the claim at a recent event held by the US Patent and Trademark Office (who, really, should know better).The event was the USPTO's "Design Day" held a few weeks ago, in which there were a series of discussions on design patents and such. If you go to the Livestream of the event, about an hour in Katz starts out by playing up how crafty infringers are getting, saying that they're getting smarter about how they avoid getting caught:This is followed up by the other favorite concept that the copyright folks loved to use for years: totally and completely bogus numbers about losses of money and jobs. Notice, first that the "losses" in money lumps in all kinds of infringement, and almost certainly counts every infringement as a lost sale, even though that's clearly not the case. And job loss reports like this have been debunked so many times that it's almost embarrassing that anyone still uses those claims.Katz goes one better in talking about how "dangerous" products were introduced into the market, he gets to claim that knockoff makeup products were causing people to break out in rashes because they had "feces" in them. Indeed, there was just a seizure by the LAPD of some supposedly counterfeit makeup products, and the whole "feces" claim made a bunch of headlines (though, it's odd that half the stories call it "animal waste" and the other half call it "human feces.") There don't seem to be many details beyond a tweet from the LAPD -- an organization never known for exaggerating anything or making statements that are inaccurate.He also claims that sex traffickers are using infringement to fund their efforts (I thought they were using the trafficking to fund it, but... who knows?) But that's just the lead in to the really nutty claim. It all comes back to... TERRORISM!If you can't see that, the slide notes that infringers are "tied to terrorism" and he provides three "real life examples." From the slide:

As we've discussed, the looming Sprint T-Mobile merger is going to be decidedly ugly for American consumers. Global history has shown repeatedly that when you reduce the number of total competitors from four to three, you proportionally reduce any incentive to truly compete on price. Analysts have also predicted that anywhere between 10,000 and 30,000 retail, management, and administrative employees will lose their jobs as the bigger company inevitably eliminates redundant positions. Of course like any American merger, the two companies' CEOs have spent much of the last week trying to claim the exact opposite.Still, it's going to be an uphill climb for Sprint and T-Mobile to sell regulators on the deal, even for an administration that seems to take pride in undermining consumers and small businesses. To try and sell it, Sprint and T-Mobile have been trying to make the claim that the only way to ensure we have the fifth-generation (5G) networks of tomorrow is if we sign off on their competition-eroding megamerger:

The Second Circuit Appeals Court has revived a lawsuit brought by a group of Muslim men who allege the FBI placed them on the "no fly" list after they refused to become informants. This is not unusual behavior -- on the part of the FBI. Documents obtained by The Intercept show the CBP and FBI routinely pressure immigrants and visitors to become informants, threatening them with deportation or adverse decisions on visa requests.In this case, the lead plaintiff, Muhammad Tanvir, claims the FBI pursued him for months. The effort to convert Tanvir into an informant led to him being detained for hours any time he tried to fly, as well as being subjected to periodic visits from FBI agents at his workplace. Despite being a lawful resident, Tanvir was threatened with arrest and deportation for refusing to submit to a polygraph test. After returning from a trip to Pakistan to visit his family, Tanvir was detained for five hours by federal agents and his passport confiscated for six months. This confiscation was leveraged against Tanvir, with agents telling him he would be deported if he did not cooperate.These tactics are expressly forbidden by the DOJ and yet, they appear to be in common use. Tanvir's experience with the FBI roughly aligns with that of his co-litigants. They sued the FBI agents who harassed and threatened them, claiming the tactics violated their religious freedom. In the plaintiffs' view, becoming an informant meant violating their religious beliefs. The district court ruled they could not pursue these claims against the federal agents under the Religious Freedom Restoration Act (RFRA).The Appeals Court disagrees [PDF]. Violations and damages alleged by Tanvir -- including the inability to travel by air, which resulted in the loss of his job as well as prevented him from visiting his family in Pakistan -- can be recouped from the agents responsible.The government argued RFRA does not permit lawsuits against individual government employees. The Appeals Court points out the plain language of the statute clearly permits doing exactly that.

Over at MorningConsult I have an op-ed piece I co-wrote with Rachel Wolbers from Engine talking about why the continued attempt by Hollywood to portray debates over intermediary liability protections and fair use as being "tech" v. "creators" is completely misguided. As we've noted, Hollywood has used this framing to try to use the NAFTA renegotiations as a backdoor way to adjust US policy both here and in Canada and Mexico. And the end result would harm not just the internet but most creators who rely on the internet to create, promote, connect with fans, and to make money.

We had just been talking about how Russia and Iran appeared to be taking similar, if not coordinated, actions to block the secure messaging app Telegram from their respective countries. While both countries couched the removal of this useful tool from its own people in the usual concerns over terrorism and national security, it was clear from the beginning that in both cases the concern was much more about dissent against the government rather than any actual violence. After all, with Telegram refusing to give away its encryption keys to these governments, the obvious interest by these countries is to be able to spy on the communications of their peoples.The reaction to these bans has, unfortunately, largely been of the shrugging variety. The reputations of Russia and Iran in America being what they are, some of it undeserved, many simply waved this away as authoritarian regimes doing what authoritarian regimes do. With perhaps a dash of Islamophobia mixed in when it comes to Iran, care for the impact on the people there appears to have gone out the window, too. After all, the Supreme Leader chose to block the app, so what is anyone to do?Well, it seems that, counter to the misconceptions many might have about the way Iran works, President Hassan Rouhani has come out criticizing the block on the app, saying both that he had nothing to do with it and that he disagrees with the move.

Remember when people kept insisting that the DMCA was never used for censorship? Yeah, about that. Last week, we were alerted to how a reporter from VentureBeat/Gamesbeat by the name of Jeffrey Grubb had sent a DMCA notice for screenshots on a tweet by Jake Magee, who tweets under the account PhoxelHQ. Magee had taken a few screenshots of an article by Grubb and put up a tweet criticizing it. This is quintessential fair use, whether or not you agreed with Magee.Apparently Grubb wasn't thrilled about Magee adding some commentary to Grubb's game review, and did what any reasonable adult would do: run to the DMCA to shut up a critic:I have a bunch of concerns about this -- starting with the fact that unless VentureBeat gives its staffers their own copyrights, this is quite likely copyfraud, as the copyright would likely belong to VentureBeat, and Grubb is falsely claiming to be the copyright holder. I emailed VentureBeat to ask them who holds the copyright on its articles -- the company or the journalists -- and got no response. Ditto for my emailed question about whether or not they had any further comment on the situation.Grubb's response to all of this has been... bizarre to say the least. He first claimed that he filed the DMCA notice because the screenshots reproduced the article in full. But when Magee pointed out it was actually around 30% of the article, Grubb apologized but only for using the word "entire", and not for the fraudulent DMCA filing. Separately, Grubb has repeatedly claimed he wouldn't have sent the DMCA notice if Magee had provided a link to the original article.While providing a link might have been nice and courteous, it is, in no way, required. The whole point of fair use is that it is, by it's very nature, permissionless. If you needed permission, that would mean you need a license, and that by definition would mean it's not fair use. The conditions on fair use are set by the law and not by the copyright holder. If the conditions were set by the copyright holder, there wouldn't be any fair use at all (and, again, it's not even clear that Grubb is the copyright holder here!).What's striking about the Twitter discussion back and forth between Grubb and Magee is just how much it's clear that Grubb couldn't care less that he abused the law to silence someone. He makes repeated flippant and jokey comments about Magee and Magee's supporters, and his only apology was for falsely claiming that Magee posted the entire article.If section 512(f) of the Copyright Act had any actual force, Grubb might actually be in some legal hot water for filing a bogus DMCA notice. Lucky for him, the courts have mostly rendered it entirely toothless. Still, it remains incredible how many people see the DMCA as a "censor this thing I don't like" tool. Copyright is a tool for censorship, and you can argue that some of that censorship is completely reasonable and okay. But as a tool for censorship it is quite frequently abused. And this is just one more example. That it's being done by a journalist for a well known publication is that much more troubling.

Nearly six months after the Trump FCC voted to kill net neutrality protections, we finally have an official date for the formal elimination of the rules. According to an FCC announcement, (pdf) the FCC's comically and misleadingly-named "Restoring Internet Freedom" order will formally take effect on June 11, eliminating rules that have the bipartisan support of a huge majority of Americans (not to mention many of the people that built the damn internet).In a statement patting himself on the back for a job well done, FCC boss Ajit Pai simply doubles down on all of the routinely-debunked falsehoods his agency has used to justify the repeal up to this point, including the claim that killing consumer protections and pandering to Comcast somehow lowers prices and protects "free expression":

The nation's largest, incumbent utilities continue to engage in some pretty shady behavior to try and stop the unstoppable renewable energy (r)evolution. In Florida, for example, we noted how one utility created an entirely bogus consumer group with one purpose: to hamstring solar competition. The group, "Consumers For Smart Solar," was built specifically by utilities to try and push legislation that claimed to support solar energy, but actually applied all manner of backward and obnoxious restrictions to the alternative energy industry.As these companies work to craft legislation that makes it harder on renewable competitors, they've ramped up the use of astroturfing to provide the illusion of broad consumer support for their efforts. Not to be outdone by their colleagues in Florida, one Louisiana utility appears to have hired a bunch of actors to express their enthusiastic support for the construction of a gas-based power plant that had been struggling with public approval. Locals had opposed the construction, arguing that claims that the plant was needed to shore up lagging capacity didn't hold up, and the utility should instead focus on modernization of existing lines.Local utilities didn't like that, so they hired a bunch of actors to cheer the plant's construction, and jeer any conversation about renewable energy alternatives at a meeting in New Orleans:

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A little over a year ago, Matt Holt, who created the Caddy Server that helps make it easier to protect websites with HTTPS encryption, posted a hypothetical blog post, from the year 2022, in which he worried that enterprising and persistent copyright lawyers would have continued moving up the stack with their DMCA notices, and started to use the process to get HTTPS security certificates removed.

For years, massive broadband providers (and the lawmakers and think tankers paid to love them) have repeatedly stated that gutting net neutrality and FCC oversight of ISPs is no big deal because the FTC will rush in and protect consumers. When ISPs like Comcast convinced the Trump FCC to kill net neutrality, they repeatedly proclaimed that the FTC would step in and ensure that nothing bad would happen. When ISPs lobbied Congress to kill off some modest consumer privacy protections, again they proclaimed that this was no big deal because the FTC would ride in and keep consumers safe from monopoly bad behavior.But while ISP lobbyists are claiming that neutering the FCC is a great idea because the FTC will fill the void, they consistently "forget" to mention that AT&T has been busy in court trying to gut FTC authority over ISPs entirely. You'd think that's kind of important to mention, but large ISP mouthpieces are understandably busy these days, so perhaps it just got lost in the lobbyist paperwork shuffle.AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very clever Schrodinger-esque tap dance.At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America.Fortunately for consumers, AT&T's legal efforts have seen mixed results. AT&T won a major ruling in the case back in August of 2016, but the FTC won the most recent federal appeals court decision. Undaunted, AT&T made it clear this week that this is a battle it intends to take to the Supreme Court:

We've talked a bunch about the GDPR recently. While the effort is well-meaning (some may disagree with this) and does have some good ideas concerning data control and transparency, we still feel that it was put in place by people who had little idea of the impact it would actually have, and will have disastrous consequences on online speech, in particular. And, since the GDPR has a long-arm aspect that will impact people across the globe (not just in the EU), there has been plenty of scrambling by companies to "become compliant" with the GDPR. This is almost certainly going to lead to a huge number of lawsuits over the next few years, with an awful lot of uncertainty. While some consultants have cleaned up in helping companies become what they hope is "compliant" (hence you probably receiving dozens of updated privacy agreements and terms of service notices lately), some companies have realized it's just too much of a hassle and decided to block all access to EU users.F-Secure's Mikko Hypponen has been tracking a bunch of examples and also highlighted a (currently offline, but can be seen at the Internet Archive) site called GDPR Shield that gives you some simple javascript to block EU visitors (assuming they have Javascript turned on, and their location is determined accurately -- both of which may be big assumptions). Among those that Hypponen has noted cutting off EU users are the following: Ragnarok Online, Verve, Brent Ozar, Unroll.me, SMNC, Tunngle, Drawbridge and Steel Root.Hypponen also notes the very different reactions to all of this from EU readers and US readers. EU folks seem to be generally supportive of the GDPR and think that companies shutting down service are either stupid & ignorant or evil and thus should shut down. On the US side, he notes people are smug about how this serves the EU right and will harm the EU.It's entirely possible both are right.But the larger issue to me is how this is increasingly splintering the internet, and doing so in a way that we're not entirely prepared for. The GDPR has significant problems -- even if it does also have some good stuff. The fact that it feels like supporters of the GDPR refuse to fix the problems seems troubling. It's going to have quite an impact and there seems to be little concern among those who support it. They automatically default to the idea that opposing the GDPR means that you want to do something bad, no matter how inaccurate that statement is.It would have been much better if those crafting the GDPR had actually bothered to listen to the wider concerns. And, barring that, if they hadn't made the reach of the law go so far beyond EU borders where it will rule over the internet and the rest of us have to deal with. They could have preserved some of the good ideas concerning control and transparency, without creating so much of a mess for everything else. But they chose not to, and now we're all going to leap off the cliff together and see how everyone ends up.

Law enforcement agencies have embraced facial recognition. And contractors have returned the embrace, offering up a variety of "solutions" that are long on promise, but short on accuracy. That hasn't stopped the mutual attraction, as government agencies are apparently willing to sacrifice people's lives and freedom during these extended beta tests.The latest example of widespread failure comes from the UK, where the government's embrace of surveillance equipment far exceeds that of the United States. Matt Burgess of Wired obtained documents detailing the South Wales Police's deployment of automated facial recognition software. What's shown in the FOI docs should worry everyone who isn't part of UK law enforcement. (It should worry law enforcement as well, but strangely does not seem to bother them.)

If you're a gamer, you know all about loot boxes. We haven't covered them or the associated controversy here, as both are slightly outside of the usual topics we cover. But we do in fact cover digital marketplaces and how companies and industries react to market forces and it's becoming more clear that the gaming industry and the gaming public are on something of a collision course over loot boxes.As a primer, a loot box is a digital randomized thing, typically purchased in-game and resulting in a random reward of in-game content. Some content is more valuable than others, leading to some referring to loot boxes as a form of gambling, particularly when some of the game content can provide benefits to players in multiplayer settings. Overwatch popularized loot boxes somewhat in 2016, although mobile games have used some flavor of this kind of monetization for pretty much ever. The gaming public never really liked this concept, with many arguing that it breaks in-game competition by giving players willing to pay for loot boxes an advantage. But the loot box fervor hit its pique after the release of Star Wars Battlefront 2, with EA being forced to massively alter how its loot boxes worked in game. Since then, loot boxes are a topic of consumer backlash as a general rule.Making it somewhat strange, therefore, that the gaming industry seems to want to embrace loot boxes as its dominant business model.

"Excited delirium" makes an appearance in another case where medical help for a mentally ill person was sought, but instead, police arrived and delivered someone to an early grave. (h/t Radley Balko)22-year-old Adam Trammell was spotted wandering the halls of his group home completely naked. Feeling the young man was experiencing a psychotic break, the neighbor whose door Trammell had knocked on called the police. When officers arrived, they found Trammell in a distinctly non-threatening state: naked in the shower.The first officer to reach for Trammell was pushed away. After that, the deluge began.

In case you missed it, last month Gibson, the famed guitar company, filed for bankruptcy. Matt LeMay has a really fascinating and worth reading Medium post up, claiming that Gibson's failure is a "cautionary tale about innovation." He compares what Gibson's management did over the past few years to another big name in guitars: Fender. And finds quite a telling story in the contrast.Specifically, he notes that Gibson doubled down on "innovation" and trying to come up with something new -- almost none of which really seemed to catch on, while more or less ignoring the core product. Meanwhile, Fender took a step back and looked at what the data showed concerning what its existing customers wanted, and realized that it wasn't serving the customer as well as it could. LeMay points to a Forbes interview with Fender CEO, Andy Mooney, where he explains:

Stormy Daniels lawyer Michael Avenatti yesterday dropped a bit of a bombshell on DC in the form of this document (pdf), which alleges that Trump lawyer and "fixer" Michael Cohen was engaged in far deeper, shadier financial shenanigans than had so far been reported. Numerous allegations are made in the document, including claims that Cohen may have violated banking laws in setting up and funneling money through a front company by the name of Essential Consultants, including payments made by Columbus Nova, a U.S.-based affiliate of a company controlled by a Russian millionaire, Victor Vekselberg.But buried within the document also sits allegations that numerous companies were also paying into Cohen's shell company, which had no employees and claimed to have been focused on real estate ventures. Korean Aerospace Industries, Novartis, and AT&T all managed to pay Cohen for ambiguous services, and all have been providing some comically murky explanations as to why they'd be dumping money into a shell company operated by the President's arguably-shady fixer:

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As marijuana is slowly, but steadily, being legalized, complications have arisen. First, the federal government still considers it illegal, although it has chosen to take a mostly-hands off approach to state-level legalization. Second, law enforcement agencies are seeing a very lucrative field of drug enforcement being slowly closed off. This isn't sitting well with agencies that rely heavily on pot busts to show their effectiveness and secure funding.There's something else being adversely affected: the employment of a few hundred law enforcement "officers." Won't someone think of the poor drug dogs forced out onto the streets/put to death as marijuana legalization cruelly takes their reason for existence away? That's the breathless parade of horribles being offered by law enforcement officers in Illinois -- another state looking to legalize weed.

The cable company Americans love to hate is about to go supernova. Comcast acquired NBC Universal back in 2011, giving the company unprecedented control of not only the conduit into the house, but also the information and news being sent over those wires. And while regulators affixed some flimsy conditions to the deal, Comcast managed to ignore many of them, a major reason why regulators moved to block Comcast's acquisition of Time Warner Cable a few years ago.Because we're unwilling to learn much of anything from history, Comcast's now on the verge of growing significantly larger. The company recently unveiled a $30 billion plan to acquire European pay TV giant Sky. And this week, reports began to bubble up indicating that if regulators approve AT&T's $86 billion acquisition of Time Warner, Comcast plans to make its own, massive $60 billion bid for the lion's share of 21st Century Fox assets:

The Guardian had an article this past weekend about what looks like a potentially successful attempt by an American to use UK data protection law to force Cambridge Analytica to divulge what information it had collected about US voters like him. Whether the UK Information Commissioner’s Office (ICO) is truly entitled to compel Cambridge Analytica to do anything, much less on behalf of an American, is an open question. But for purposes here, let's assume that UK data protection law works this way, that it was intended to work this way, and that it's good policy for it to work this way.The problem is, it's one thing for the ICO to force Cambridge Analytica to share with the American voter himself what personal data it had about him. But it's another thing entirely for the ICO to force Cambridge Analytica to share the personal data it has about American voters with it. Yet it looks from the article like that's what ICO may have threatened to force Cambridge Analytica to do.The troubling passage:

Techdirt readers with long memories may recall a post back in 2011 about a 440-page report entitled "Media Piracy in Emerging Economies." As Mike wrote then, this detailed study effectively debunked the entire foundation of US attempts to impose maximalist copyright regimes on other countries. That report was edited by Joe Karaganis, who has put together another collection of articles, called "Shadow Libraries: Access to Knowledge in Global Higher Education", that are also likely to be of interest to Techdirt readers. As Karaganis writes in his introduction:

A brief review of Nike's history on matters of intellectual property will result in the impression that the company is a stalwart of IP protection. The company has been fond in the past of relying on intellectual property laws to take strong enforcement actions, even when the targets of those actions are laughably dwarfed by the company's sheer size. Like many massive athletic apparel companies, it jealously protects its trademarks and patents. And, yet, it has been found in the past to be perfectly willing to infringe on the trademark rights of others.But those past instances are nothing compared to the full brazen display alleged by Quest in its copyright lawsuit against Nike.

The US has been something of a surveillance state since long before the Snowden revelations that showed the full extent of some of the NSA's activities. A lot of this is made possible — often unintentionally — by decades-old court decisions regarding technology. It's a problem. This week, reporter Cyrus Farivar — whose new book Habeas Data digs into this judicial history — joins us to discuss how courts created the surveillance state.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.

Last month, we covered the incredible case of an unnamed 19-year-old who was facing criminal charges for downloading publicly-available documents from a government Freedom of Information portal. The teen had written a script to fetch all available documents from the Nova Scotia's government FOI site -- a script that did nothing more than increment digits at the end of the URL to find everything that had been uploaded by the government.The government screwed up. It uploaded documents to the publicly-accessible server that hadn't been redacted yet. It was a very small percentage of the total haul -- 250 of the 7,000 docs obtained -- but the government made a very big deal out of it after discovering they had been accessed.The government complained to the police and had the downloader hauled in to face unauthorized access charges, claiming he had "exploited a vulnerability" to obtain unredacted files. But no exploit was used. It was the government that left unredacted documents in a publicly-accessible space. Nevertheless, the teen's home was raided, his family accosted, and several electronic devices seized -- including those of family members. The 19-year-old's younger brother was even detained by officers while walking to school.Government officials claimed the teen "stole" documents, and pushed for criminal charges which could have resulted in a ten-year sentence for downloading documents from a government portal designed to facilitate the downloading of documents.Fortunately, Nova Scotia law enforcement has decided there's nothing to pursue in this case.