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The US government isn't supposed to seek general warrants. And US judges aren't supposed to approve them. The Fourth Amendment requires a showing of probable cause to justify the intrusion by the government into citizens' lives and property. None of that appears to have happened in this case, brought to us by Thomas Fox-Brewster at Forbes.

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Back in 2010, we posted an infographic from The Root showing just how little money that was spent on music actually went to the artist:In 2015, using a report put out by Ernst & Young, we put together our own graphics showing how much of streaming went to the actual artists:You may be noticing a pattern? Very little of the money being made actually goes to the artist. Now we have even more data on this. Citibank recently released a massive and incredibly thorough report on the entire music industry showing how and where the money is made. There's lots of interesting and useful information in the report, but the headline grabbing fact is that musicians end up with just about 12% of global music revenue. As I said, the report is incredibly thorough (and a really useful read if you want to get a sense of just how convoluted and complex the music business really is), but the key is that there was ~$43 billion spent on music in 2017. Approximately $25 billion of that went to everyone (outside of the labels) who helped make the music available: digital streaming services, retail stores, concert venues:That leaves $18.2 billion in money distributed out to the labels. But of that amount, only about $5 billion actually goes to artists, which means right around 12% goes to artists:Of course, it's especially notable that a significant chunk of that revenue going to artists actually comes from... live performances:This shouldn't be a surprise. Hell, we've spent the better part of two decades here talking about how artists need to embrace "scarcities" where they can make money, with live shows being a big part of that. And we kept having people from the recording industry scream about us saying that, but the numbers above don't lie. Citibank notes that one of the big reasons live drives so much artist revenue: You don't have the same amount of monopolistic middlemen sucking the artists dry:

Last week we noted how an FCC "oversight" hearing fell well short of anything actually resembling, well, actual oversight. Three FCC staffers had just been caught making up a DDOS attack and misleading Congress, the press and the FBI about it -- yet the subject was was barely even broached by lawmakers on either side of the aisle. It was another embarrassing example of the absence of anything resembling genuine accountability at the agency.Fortunately one subject that did get a little attention was the FCC's comically-terrible broadband maps, something we've covered at great lengths here at Techdirt. If you want to see our terrible broadband maps at work, you need only go visit the FCC's $300+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses.For example, at my home in Seattle there's only one real ISP available: Comcast. But according to the FCC's data, I supposedly have seven broadband providers to choose from:Three of those options (CenturyLink DSL, CenturyLink fiber, and Startouch Broadband) don't actually exist at my address, something I've confirmed with company engineers. Another three are satellite broadband providers, whose sky-high latency, high prices and daily or monthly usage caps make the services barely qualify as real broadband. That again leaves just Comcast as my only fixed line broadband option (aka a monopoly) in Seattle, supposedly one of the bigger tech-oriented cities in America. If you plug your address into the FCC's map you'll likely see similarly-misleading results.As the FCC eyes where to deploy $4.5 billion in new rural broadband subsidies, more and more lawmakers are growing annoyed at the FCC's failure on this front. That includes Senator Jon Tester, who at last week's hearing proclaimed that the FCC's broadband maps "stink", and figuratively suggested that somebody (¯\_(ツ)_/¯) should have their "ass kicked" for the failure:

Governments -- which will process requests from citizens in statutorily-required time almost zero percent of the time -- never think the private sector moves fast enough. The government says "Jump" and then immediately asks why the jumping wasn't already in progress when it ordered the jumping to commence.Content that isn't even of the "I know it when I see it" variety isn't being taken down quickly enough for the EU. Various members have implemented their own 24-hour policies for the removal of everything from "hate speech" to "extremist content" -- both particularly difficult to classify immediately when context and newsworthiness must be considered.The EU Commission is reeling in the leash it has attached to US social media companies. It pitched the idea back in March but now appears to following through with its threats. The latest move towards impossibility is detailed by The Financial Times.

We've often made the point in the past that much of the trademark legal strife and bullying that occurs throughout the country ought to be squarely blamed on a USPTO that can't be bothered to put much thought into the trademarks it approves. All too often, the Trademark Office acts as a mindless rubber stamping facility, pushing through the application paperwork without thinking about the broader consequences of its approvals, nor the legal minutia involved into what makes a term a valid trademark. That bureaucratic lethargy is precisely how you get trademark bullies wielding trademarks that should never have been granted. And, because trademark bullying generally works, it's rare that anyone outside the USPTO is actually forced to clean up this mess it created.But, on rare occasions, sanity puts a win up on the board. Such is the case with Express Homebuyers USA of Virginia, which defeated WBH Marketing Inc.'s trademark suit in which the latter claimed infringement based on its registered trademark for the phrase "We Buy Houses."

Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself.Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating:It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work.Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse.

Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.

Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let's dig in.Back in March, we wrote about a silly case filed by noted racist (he prefers "race realist" or "white advocate" but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we've seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor's lawyers, who seemed surprisingly uninformed about CDA 230.So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge's rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an "unfair competition" claim. The reasoning was... very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter's terms of service were "unconscionable" because they said the site could kick you off for any reason. It is true that California code 1670.5 says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." But how is Twitter's terms of service unconscionable?During the hearing, Twitter's lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there's never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is "unconscionable" -- and that's partly because of CDA 230, that makes it clear the platform has the final say, and state law can't interfere with that. But here, the judge ignored all of that and suddenly decided that the "we can kick you off for any reason at all" clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter's lawyer, Patrick Carome, Peters is one of Taylor's lawyers, Noah Peters:):

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The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software.

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

After fighting for years, it appears that Paul Hansmeier realized he was cooked. On Friday, he pleaded guilty to various fraud and money laundering charges related to his copyright trolling under the Prenda name. Hansmeier, of course, was one of the two "masterminds" (and I use that term loosely) behind Prenda along with John Steele, who pleaded guilty last year, and was set to be a witness against Hansmeier, who came up with some colorfully ludicrous theories to try to talk his way out of these charges.If you don't recall, Hansmeier and Steele started out as garden variety copyright trolls, suing tons of people and shaking them down for money, but they kept expanding the scam, to the point that they were setting up bogus honeypots with content they themselves uploaded to get IP addresses to shake down (with hilariously dumb attempts to cover up that it was them). They also set up fake shell companies as their own "clients" which didn't go over well in court. That's not even getting to the way that Steele and Hansmeier were clearly the beneficiaries of these shakedowns, or the fact that they tried to hide the money. And do we even mention the outright lying in court?One of the most incredible things in watching the whole Prenda saga over the years was just how much Steele and Hansmeier seemed absolutely 100% convinced that they could talk their way out of everything. No matter how bad it was getting, they would scream to the heavens about how everyone was lying about them and that eventually they'd be shown to be innocent. Yet now they've both pleaded guilty. Hansmeier's plea agreement has him pleading guilty to mail fraud and wire fraud, along with conspiracy to commit money laundering. The "deal" is that prosecutors won't charge him with even more crimes that they've since uncovered "including conduct associated with the defendant's bankruptcy proceedings." The agreement lays out much of the scam in pretty clear terms (the P.H. in the agreement appears to be Paul's brother Peter Hansmeier who there are differing opinions about his level of involvement in the scam, P.D. is obviously Paul Duffy, who was another bumbling part of the scam, and who died a few years back of "chronic ethanolism" as all of this was unraveling):

This week, our first place winner on the insightful side is Mason Wheeler with a response to Nintendo's takedown of major ROM sites and one professor's comments about the importance of libraries and archives:

Five Years AgoThis week in 2013, the White House incredibly put James Clapper in charge of independent NSA review, then tried to change its tune a bit when people rightly pointed out that this was insane. Meanwhile, Rep. Justin Amash discovered that the House Intelligence Committee had withheld important NSA documents from the rest of Congress, and that the White House knew it. Then, the latest leak revealed that the NSA abused the rules to spy on Americans thousands of times every year — since there was no real oversight, the FISC court just relied on the NSA's own statements to determine what was legal, and agents were told to withhold information from those in charge of oversight. Senators Wyden and Udall hinted that this was just the tip of the iceberg, while NSA defenders claimed the abuses were evidence of the system working well and that the numbers were impressive compared to the amount of spying the NSA does.Ten Years AgoThis week in 2008, Italy tried and failed to block all access to The Pirate Bay, with the predictable result of a spike in Italian traffic to the site. Universities were realizing that the RIAA was taking advantage of them in its crusade against file-sharing students, while one teenager targeted in a lawsuit managed to get damages reduced with an "innocent infringement" defense. Nintendo was freaking out about memory cards for the Nintendo DS, while Tiffany was continuing its futile efforts to hold eBay accountable for counterfeit products by appealing a court ruling that said they weren't (and this same week, a Belgian court was ruling the same thing).Fifteen Years AgoThis week in 2003, eBay was only just starting to become the ecommerce platform of choice with folks setting up entire businesses on the site. ISPs were the ones fighting back against the RIAA, along with one accused file-sharer who was hitting the agency with a countersuit arguing that sharing does not equal distribution. There were early rumblings of "personalization" as the future of search engines, and the fairly new technology of MMS picture messages was being put to use for networked security cameras and medical emergencies. And nearly seven years before the iPad, there were lots of tablet computers hitting the market, but nobody wanted them.

The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers' money. It's hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims -- and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit:

It's been a week or so since we last checked in on the Aloha Poke situation, so perhaps you were wondering how things were coming along with the Chicago chain that wasn't founded by Hawaiians attempting to bully native Hawaiian poke joints across the country out of using their own language and culture over trademark concerns. You will recall that Aloha Poke Co. had sent cease and desist notices to many poke restaurants that dared to use the ubiquitous Hawaiian term "Aloha" in their names, including to proprietors on the Hawaiian Islands themselves. That many operations throughout the country had been chugging along sharing this name and food culture without issue apparently didn't prevent Aloha Poke Co. from registering "Aloha Poke" as a trademark and then go the bullying route. The last touchstone in all of this was a hundreds-strong planned protest at the company's headquarters in Chicago, which indeed ended up happening.So, how have things gone since? Well, Aloha Poke Co. appears to be simply digging in its heels and trying to ride this storm out rather than backing down, but it's a strategy that doesn't appear to be working all that well. Just this week, the Office of Hawaiian Affairs, an organization that promotes and protects Hawaiian culture, has jumped into the fray, both voicing its displeasure at Aloha Poke Co.'s bullying and essentially filling up its homepage with news about the protests.

You may have heard the general mantra that "puns are the lowest form of comedy." Heathens say that, because puns are great and, if I had my way, there would be a legal requirement to use at least one in every legal document this country produces. They can also be used to lighten up what would otherwise be heavy legal actions. Such is the case with In-N-Out Burger, which decided to respond to what is pretty likely trademark infringement with a pun-laden cease and desist.We'll start with the product that was likely infringing on In-N-Out's trademarks, which itself involves some punnery.

Earlier this week, the Associated Press did a story revealing that even for Google users (on both Android and iPhone) who turned off location tracking Google was still tracking their location in some cases.

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As a New Jersey native I know how tempting it is for people to gratuitously bash my home state. But, you know, sometimes it really does have it coming.In this case it's because of the recent announcement of a new password policy for all of the New Jersey courts' online systems – ranging from e-filing systems for the courts to the online attorney registration system – that will now require passwords to be changed every 90 days.

The Telecom Act of 1996 mandates that the FCC routinely assess whether broadband is "being deployed to all Americans in a reasonable and timely fashion," and do something about it if that's not the case. As part of that mission, the FCC also periodically takes a look at the way it defines broadband to ensure the current definition meets modern consumer expectations and technical advancements. That's why, much to the telecom industry's chagrin, the FCC in 2015 changed the definition of broadband from a fairly-pathetic 4 Mbps downstream and 1 Mbps upstream to the current standard of 25 Mbps downstream and 3 Mbps upstream.Telecom monopolies (and the lawmakers paid to love them) whined incessantly about the changes at the time. Why? Because the higher definition only highlights how there's virtually no competition at faster speeds in the U.S. It also highlights how because countless U.S. telcos have shifted their focus to more immediately-profitable ventures (like flinging video ads at Millennials), they've neglected network upgrades on a comical scale. As a result, most modern telcos fail to even technically sell "broadband" across vast swaths of America, giving cable giants like Comcast a bigger broadband monopoly than ever before.As such, you can kind of understand why, if you're a lumbering broadband monopoly, why you'd prefer the definition of broadband remain at ankle height.With the FCC preparing its latest assessment of the broadband broadband industry as required by law, the question over whether the broadband standard should again be lifted has again raised its ugly head. Especially given that in the age of symmetrical gigabit (1 Gbps) connections and cloud storage, that 3 Mbps upstream standard is looking a little lame. But in a Notice of Inquiry (pdf) published last week, Pai’s FCC proposed keeping the current 25/3 definition intact, something that apparently annoyed his fellow Commissioner Jessica Rosenworcel.In a statement (pdf), Rosenworcel suggests that symmetrical 100 Mbps would be a far more ambitious goal to aim for:

Cops in California have literally unbelievable protections. To ensure the "privacy" of government employees sworn to serve the public, the Cali legislature has kowtowed to state police unions to make disciplinary records all but impossible to obtain… by anyone.This has led to the expected results. Professional liars in cop uniforms offer unimpeached testimony filled with more lies as defense lawyers stand helplessly by, screwed out of offering effective counsel by state law. The law is so restrictive prosecutors are often unable to obtain these files. In the unlikely event a cop is being prosecuted, past misdeeds are hidden under a heavy layer of legislated opacity, hindering effectiveness on the other side.Sure, if you're the victim of police violence, your past is an open book. The cops will dump everything they have on you, from the shoplifting citation two decades ago to every charge ever brought (but ultimately dropped or dismissed) against you in your lifetime to smear your reputation and burnish their own. But if the court would be better served knowing the witness on the stand is an inveterate liar with a history of misconduct, justice will not only go blind but underserved under state law.This bill aims to change that.

Between the explosion in the craft beer industry and our pernicious ownership culture, the beer industry has enough of a trademark problem to regularly appear in our posts. While many of the disputes in the industry are generated by once-small breweries that have grown up and shed their permissive attitudes towards branding, just as many trademark disputes result from entities outside the industry attempting to pretend that the alcohol industries, if not craft beer specifically, are not markets all to their own. This lack of nuance occasionally pervades even within the USPTO, unfortunately.But sometimes the TTAB gets it right. Such is the case with Comrade Brewing, makers of its 'Superpower IPA' brew, for which the TTAB refused the opposition of The Wonderful Company, which makes fruit juices. At issue was the slogan for POM Wonderful juices: "Antioxidant Superpower."

A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it's cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn't just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin's General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it's possible to abuse the patent system.

FCC "oversight" hearings continue to be comically lacking in the actual oversight department. As we noted previously, today was Congress' opportunity to hold the FCC and agency head Ajit Pai accountable for making up a DDOS attack and then lying (repeatedly) about it to the press, FBI investigators, and Congress. As we've previously stated, both e-mails obtained via FOIA and an FCC Inspector General report (pdf) found that the FCC bizarrely made up a DDOS attack to try and explain away the fact that John Oliver viewers pissed about the net neutrality repeal crashed the FCC comment system.The IG's report and internal e-mails clearly illustrate that not only did FCC CIO make up a DDOS, but several FCC staffers then misled Congress repeatedly about the total lack of evidence supporting that claim. The false statements were bad enough to warrant them being forwarded to the DOJ, which refused to prosecute anyone. But the e-mails also highlight how the FCC's press office repeatedly misled numerous press outlets, and even went so far as to issue statements denigrating reporters like Gizmodo's Dell Cameron for being "irresponsible" as they slowly uncovered the fake claims.In a functional democracy, this is the sort of thing that would be covered extensively at a hearing purportedly designed specifically to hold the FCC accountable to Congress and the public. In said fictional healthy democracy, Congress might even, you know, actually do something about it.But today's hearing was little more than a joke, rife with lots of giggling, football references, and numerous softball questions -- but few if any hard inquiries about the DDOS attack that wasn't. The closest thing Pai experienced to actually being pressured came from Senator Brian Schatz. But when pressed as to what he knew and when, Pai again threw his employees under the bus, denying that he had any knowledge of or role in the FCC's efforts to mislead Congress and public. The exchange is here for those interested:

Lots of government employees and officials would love to shut their critics up. The problem is that most methods they come up with don't work (at best) or are unconstitutional (at worst). That doesn't stop them from trying. The amount of hours expended trying to find ways to silence critics sits well above zero, making these efforts fraudulent as well as potentially unconstitutional.Never underestimate the creativity of the criticized class, as Tony Webster reports.

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Last year at Defcon, the Voting Machine Hacking Village showed just how bad the security was on electronic voting machines. This is not a surprise, of course. It's a topic we've covered on Techdirt going back almost 20 years. But what's still most incredible is how much the voting machine manufacturers and election officials continue to resist the efforts of security experts to explain all of this. Even earlier this year, there were reports about the insane lengths that voting machine vendors were going to to try to stop Defcon from obtaining their machines:

It has only taken a few years, but the press, public and law enforcement appear to finally be waking up to the problem of SIM hijacking. SIM hijacking (aka SIM swapping or a "port out scam") involves a hacker hijacking your phone number, porting it over to their own device (often with a wireless carrier employee's help), then taking control of your personal accounts. As we've been noting, the practice has heated up over the last few years, with countless wireless customers saying their entire identities were stolen after thieves ported their phone number to another carrier, then took over their private data.Sometimes this involves selling valuable Instagram account names for bitcoin; other times it involves clearing out the target's banking or cryptocurrency accounts. Case in point: California authorities recently brought the hammer down on one 20-year-old hacker, who had covertly ported more than 40 wireless user accounts, in the process stealing nearly $5 million in bitcoin.One of the problems at the core of this phenomenon is that hackers have either tricked or paid wireless carrier employees to aid in the hijacking, or in some instances appear to have direct access to (apparently) poorly-secured internal carrier systems. That has resulted in lawsuits against carriers like T-Mobile for not doing enough to police their own employees, the unauthorized access of their systems, or the protocols utilized to protect consumer accounts from this happening in the first place.While T-Mobile has received the lion's share of negative press attention on this subject in recent months, AT&T this week got dragged into the fun. The company was sued this week for $224 million by a customer who says AT&T's failure to adequately protect his account resulted in the theft of nearly $24 million in cryptocurrency. The full complaint (pdf) notes that AT&T customer Michael Terpin is seeking $200 million in punitive damages and $24 million of compensatory damages for the cryptocurrency losses.The suit alleges that Terpin had his phone number stolen and ported out at least twice between mid 2017 and early 2018, resulting in the thief then hijacking his identity to empty out his cryptocurrency accounts. Terpin also accuses of AT&T of failing to protect its customers despite ample press coverage of the SIM hijacking phenomenon. Worse perhaps, the lawsuit alleges that the thief successfully hijacked his phone number despite AT&T adding "higher security level" protections, which AT&T specifically stated would protect his account from such hijinks. From the complaint:

Yet another content protection service decides it's better off letting the machines do the work, with predictably catastrophic results. The EFF first noticed the DMCA abuse being committed by "Topple Track," a content protection service offered by Symphonic Distribution. Symphonic talks big about its protection service, pointing out its position as one of the "leading members" of Google's "Trusted Copyright Program."The thing about trust is that it's hard to gain but easy to lose.

As you likely know, Germany has some very restrictive laws surrounding how and when Nazi iconography can appear in the country. This has resulted in a heavily-policed artistic community, particularly when it comes to video games, which has produced some fairly funny happenings about games accidentally going to Germany chock full of Nazi stuff and other funny happenings in which the game makers make a show of doing as little as possible to get around the law. In the realm of other media, such as movies, the German government has put in place a review process to make sure that the use of Nazi symbols furthers the artistic or historical accuracy of the entertainment. Video games have not had such a review system. And, look, on some level this sort of attempt by Germany to restrict the use of these hateful symbols is understandable. The kind of global embarrassment that comes with committing the worst genocide in history is the sort of thing that leaves a mark. But we've also pointed out that these German laws aren't so much stamping out fascist thought as they are putting the government's collective head in the sand as some kind of grand virtue signal to the planet.Which is why it's at least a tepid step forward that Germany has revised its position and will now allow Nazi iconography in some video games, some of the time, on a case by case basis.

Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

Late last year, we discussed a lawsuit brought by Disney against Characters For Hire, a small company that sends costume characters to children's birthday parties. Those characters, as we said at the time, are barely-altered clear homages to storied Disney-owned characters, such as Dark Lord (Dearth Vader) and Big Hairy Guy (sigh, Chewbacca). While Disney sued over both trademark and copyright, the alterations to the characters and the very clear disclaimer Characters For Hire puts on its site and documents meant the chances for confusion as to Disney's affiliation was always non-existent. When you add that the changes in the characters and the medium in which they were offered at least partially put us in the idea/expression dichotomy zone for copyright law. That part of the law essentially says copyright applies to specific expressions (written stories, film, music, and sometimes characters), but not general ideas (a Dark Lord, a, sigh, Big Hairy Guy).Well, nearly a year later, the first legal returns have come in and they are not great for Disney.

If you haven't noticed, the entertainment industry has a new, terrifying bogeyman. Over the last year or two, pressure from entertainment industry lobbying groups has resulted in an all-out war on streaming video devices (aka computers) that run Kodi, the video streaming software. Kodi has technically been around since 2002, first as Xbox Media Player, after which it became the Xbox Media Center until 2014. The XBMC Foundation then renamed the software Kodi, and it became popular as an easy way to store and stream content, including copyrighted content, from hardware running Kodi to other devices in or out of the home.For years now, tinkerers everywhere have built custom-made PCs that use the open-source Kodi platform. In more recent years, outfits like Dragonbox or SetTV have taken things further by selling users tailor-made hardware that provides easy access to live copyrighted content by not only including Kodi, but integrating numerous tools and add-ons that make copyright infringement easier. Driven largely by clearly-terrified entertainment-industry execs and lobbyists, numerous studios, Netflix and Amazon have tried to sue these efforts out of existence.Even the FCC has tried to help the entertainment industry in this fight, demanding that Ebay and Amazon crack down on the sale of such devices. Since the FCC lacks authority over copyright, it has instead tried to justify its involvement here by focusing on these devices' illegal use of the FCC approval logo. It's another big favor to the entertainment industry by the Pai FCC, who you'll recall killed efforts to help make the traditional cable box sector more open and competitive.But the fight has also been pushed well beyond "fully loaded" Kodi-embedded devices specifically built and sold with an eye on copyright infringement. Google, for example, has banned the word Kodi from its autocomplete filter despite the fact that the Kodi software is perfectly legal. Facebook has also been piling on, initially updating its commerce policy to ban the promotion of "products or items" that facilitate or encourage unauthorized access to digital media.Last week, Cordcutter news was the first to notice that Facebook had since tailored its commerce policy further to specifically ban Facebook users from promoting "the sale or use of streaming devices with KODI installed.":Facebook hasn't banned the sale of any devices that are compatible with Kodi-streaming devices (keyboards, remotes). But the specific focus on Kodi remains a problem because, again, Kodi itself isn't illegal. Nor is building a small custom-PC with Kodi (or any of numerous variants like Plex) installed. Banning users for selling custom PCs that just happen to include software the entertainment industry assumes will be used for piracy is an obnoxious over-reach, but it should make it clear just how terrified the entertainment industry is of such devices.It's an age-old story. This "threat" (which again is perfectly-legal hardware running perfectly-legal software) could be countered by offering consumers better, more modifiable, and open products and services. Instead, as we saw with the cable industry's massive disinformation attack against cable box reform efforts, the goal is always to keep everything unrealistically locked down to the detriment of the right to tinker and consumer choice.

Here's one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the "Mickey Mouse Protection Act" and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:This pattern might finally (miraculously) end this year -- but not because Disney has become enlightened. Rather, it's mainly because Disney's lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren't attempts to slip provisions into trade agreements that had the potential to expand copyright terms).However, it does seem notable -- as first spotted by Eriq Gardner at The Hollywood Reporter -- that Disney has now been put in the possibly awkward position of complaining about "overzealous copyright holders," and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

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Yet again, when it comes to digital goods, you don't own what you buy. Inmates in Florida's prison system are learning this fact of life, thanks to a change in jail "entertainment" providers.

So FCC boss Ajit Pai will need to don some tap-dancing shoes this Thursday, when he'll be forced to explain to a Senate oversight committee why his agency not only made up a DDOS attack, but lied repeatedly to the press and Congress about it.As we recently noted, e-mails obtained by FOIA request have proven that the FCC completely made up a DDOS attack in a bizarre bid to downplay the fact that John Oliver's bit on net neutrality crashed the agency website last year. A subsequent investigation by the FCC Inspector General confirmed those findings, showing not only that no attack took place, but that numerous FCC staffers misled both Congress and the media when asked about it.Pai initially tried to get out ahead of the scandal and IG report by issuing a statement that threw his employees under the bus while playing dumb. According to Pai's pre-emptive statement, the entire scandal was the fault of the FCC's since-departed CIO and other employees who mysteriously failed to alert him that this entire shitshow was occurring (you can just smell the ethical leadership here):

The Australian government is looking to revamp its compelled access laws to fight encryption and other assorted technological advances apparently only capable of being used for evil. It's getting pretty damn dark Down Under, according to the Department of Home Affairs' announcement of the pending legislation.

Those steeped in ownership culture often have the wrong idea when it comes to trademark laws. In the minds of some, trademark laws can be used like publicity rights laws, wherein a famous somebody -- or that somebody's heirs -- can use that fame to control all uses of references to that somebody for ever and ever. That, of course, is not how trademark laws work. Instead, trademark law is designed to protect the public from confusion by allowing some monopolistic use of names and terms in some markets and only if actual commerce is taking place.This is a lesson the management company of the late renowned martial arts star Bruce Lee has now learned the hard way. Bruce Lee Enterprises attempted to both block the trademark registration for production company Barisons in the UK, which applied for a mark covering its forthcoming Jun Fan: the Bruce Lee Musical, and also to apply for a "Jun Fan" mark in the theatrical designation itself. Jun Fan, if you're not aware, was the birth name of Bruce Lee.The problem for BLE is that Barisons had already communicated its intention to put on the show with BLE and defended itself by accusing BLE of registering for its own trademark purely to block the production company's show, without any intention of putting on its own theatrical production.

The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:

There has long been anxiety around the "permanent record" of the internet, and recent public shamings based on old tweets have brought that fear to the forefront for many people. But the mass deletion of old tweets also means throwing out huge amounts of potentially valuable information. Is there a technological solution? A cultural one? This week, we're joined by returning guests Cathy Gellis and Parker Higgins to discuss a proposal for fixing the problem without sacrificing the permanent record.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.

For a while now we've been noting that while Ajit Pai professes to be a huge proponent of "closing the digital divide," most of his policies are doing the exact opposite. Pai's attacks on net neutrality, for example, will likely only act to drive up broadband prices for everyone as ISPs enjoy their newfound ability to creatively abusive captive customers in uncompetitive markets. And Pai has repeatedly attempted to fiddle with FCC data collection methodology with an eye toward obfuscating the industry's competitive failures (be that skyrocketing prices or poor coverage).That's of course when he hasn't been busy slowly-but-surely gutting programs designed to help bring broadband to the nation's less affluent areas.One of Pai's core policies has been a relentless attack on the FCC's Lifeline program. Lifeline was created under the Reagan administration and expanded under the George W. Bush administration, and provides low-income households with a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.Traditionally this program had broad, bipartisan support and was never deemed even remotely controversial. But ever since Trump and Pai stumbled into town, the current FCC has slowly waged war on the program. For example Pai's FCC voted 3-2 last November to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. Pai's FCC also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) Pai's FCC normally nuzzles up to.But Pai's quest backfired late last week when a U.S. Appeals court issued a stay order (pdf) freezing Pai's efforts to kill Tribal broadband subsidies, the court arguing that Tribal organizations and smaller wireless carriers are likely to win their court challenge against the recent FCC changes.Small wireless carriers and several tribal organizations had sued the FCC (pdf) in the United States Court of Appeals for the DC Circuit, noting the FCC "failed to engage affected tribal governments" ahead of the rule changes. Tribal leaders also filed a petition (pdf) claiming Pai's multi-pronged attack on Lifeline would only make it harder to connect tribal lands to the internet.So far the courts seem to be agreeing with them, and tribal groups have been quick to applaud the ruling:

New gear from Techdirt, now available on Teespring »No discussion about free speech gets very far without someone busting out the idea that "you can't yell fire in a crowded theatre". It's a phrase that's irritated actual free speech experts for years: it adds nothing to the discussion, and it's not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase's uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.And now you can help fight back against this dangerous idea with new gear from Techdirt! The Free Speech Pro-Tip is available on t-shirts, hoodies, mugs and stickers from Teespring.Order yours today, and be sure to check out our storefront for other great Techdirt gear!

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Many years back, I remember seeing Michael Arrington, the founder of TechCrunch, being interviewed about that site (which at the time was on its way to becoming the first "mainstream" tech news blog). I'm paraphrasing, and possibly misremembering, but what stuck with me was that he suggested that, as a blog, you basically had to focus on one of three things to succeed: being first, being funny, or being insightful. And he had chosen "being first" as the strategy for TechCrunch -- trying to break news as quickly as possible. And while that makes sense as a business strategy if you can do it, it had absolutely no appeal to me for how we ran Techdirt. We always hoped to focus on adding more insight into various issues, than breaking news. That's not to say we don't break news every so often, but it's certainly not the focus.Last Thursday, I published a long post about the whole question of internet platforms cutting off certain users. While the actual title of the story was Platforms, Speech And Truth: Policy, Policing And Impossible Choices, it had a different title on our social media feeds:

A major component of the Telecommunications Act of 1996 was the idea of line sharing, or local loop unbundling. Simply put, the rules set forth required that incumbent telcos needed to share their networks with smaller competitors, providing wholesale access to bandwidth. It was an effort to foster something vaguely resembling competition in the broadband space by letting smaller companies piggyback on existing network infrastructure. The thought was that because the barriers to market entry were so high (both politically and financially), this could help smaller competitors gain footholds that would otherwise be impossible.The effort didn't work out for several reasons.One, incumbent ISPs quickly got to work trying to make the process as difficult as possible, often causing intentional delays as smaller ISPs (CLECs) attempted to connect to incumbent networks (ILECs). Big ISPs also got quickly to work lobbying to kill the effort, and by the early aughts had largely succeeded. Big ISP executives then proudly proclaimed the effort was a failure from conception, ignoring that other countries, like France, took the idea and utilized it to great success (users in Paris can now get TV, broadband and phone service for a small fraction of what users in the States pay).That said, there were plenty of terribly-run ISPs from that era that died thanks to their own incompetence and terrible business plans. But by and large line sharing was a concept we never truly tried to make work. Still, some smaller ISPs not only survived, but thrived thanks to the rules.Like independent California ISP Sonic, which utilized those early line-sharing relationships as intended, and slowly-but-surely built out their own network on the back of the initial sharing relationship. Big ISPs like AT&T and Verizon, however, are now attempting to kill the last vestiges of those rules. In a recent blog post by telco lobbying organization US Telecom, telcos argue that the rules are no longer necessary, and (much like their attacks on net neutrality) eliminating them will drive all kinds of amazing "innovation and investment":

Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn't properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter's educational records as the result of a public records suit. Certain information was redacted -- or at least was supposed to be -- to comply with state and federal privacy laws.What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the "redacted" text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel's fault anyone's privacy got violated.The Sun Sentinel has now responded -- both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel's way, not only will it not face contempt charges (there's been no ruling on the motion, so it appears the judge doesn't believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.From the motion [PDF]:

Earlier this year, we discussed a trademark lawsuit brought by the famous Billy Goat Tavern in Chicago against a chip company in Missouri called the Billy Goat Chip Co. At issue was the tavern's claim that the chip company's name and logos infringed on its trademarks. Interestingly, Billy Goat Chip Co. countersued with seemingly important information, including that it had been operating for a decade, had trademarks for its business for a decade, and that its branding differences were such that the potential for public confusion didn't exist. The Billy Goat Tavern, on the other hand, only had trademarks for its name for the tavern industry and didn't begin selling packaged food until 2017, at which time the tavern applied for marks in that industry as well.Honestly, the whole thing seems fairly cut and dry. Different markets, different products, and the very real potential that the chip company could get the tavern's trademarks cancelled based on its own first use. Yet, despite the Chicago judge presiding over the case essentially agreeing when ruling on Billy Goat Chip's motion to dismiss, the court is allowing all of this to go trial.