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A constant refrain from the publishing industry is that it's impossible to make a decent profit from online publishing because of all those people downloading and sharing digital stuff for free. An interesting article in Caixin reporting on the Chinese digital giant Tencent offers an interesting perspective on that issue. It provides an update to a story we wrote last year about Tencent moving into online publishing, with evident success:

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn't like how the site administered its "restricted mode" relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager's claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube's Alice Wu offered the court a declaration that more or less showed every single one of Prager's claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager's legal team to task for failing to make anything resembling a valid claim before the court. We'll start with the court's response to Prager's First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

The debate over gun control has reached new heights following the shooting at a high school in Florida. Every mass shooting prompts debate over the Second Amendment and access to guns, but this one, led by students whose classmates were killed, has more momentum than most.Youth is wasted on the young, people say, as they note the steady decline in voter participation in younger demographics. This seems to imply more students should be involved in social and political issues, but this particular participation has been met with lots of ridicule and anger. In other words, it's been greeted with hypocrisy, which is pretty much what we expect in heated political debates.Nothing is more heated than the gun control debate. And everyone with an opinion is wrong. But it's the youth that are the wrongest, and those bemoaning youthful antipathy aren't responding very well to this sudden display of activism. Gun control-related walkouts have occurred in schools all over the nation, and students expressing their displeasure with their representatives are finding out firsthand how thin-skinned their representatives are.

As much conversation as gets logged on the topic of copyright infringement, or piracy, you may not have noticed that there are not that many arguments against piracy. Certainly there's a volume of voices, particularly those coming from the entertainment industry, but those voices are typically making only one of two claims. The first claim is that piracy is morally wrong. This claim typically devolves into something along the lines of "but piracy is theft", and relies on the intuitive notion that downloading, say, a song hurts the creator of that song by depriving them of income. If there was no income deprivation, there would be no moral wrong. The second claim skips the first part of that equation and simply asserts that piracy harms the entertainment or content industries, depriving them of the income they need in order to create more content. You will notice that, ultimately, there is actually only one argument against piracy: its effect on the income of the content producers.With as much as entertainment advocacy groups like to pantomime Chicken Little on this topic, you might be surprised to learn that the RIAA recently came out with its 2017 Year-End industry report, in which it gleefully notes both how much money the music industry is making and, importantly, how that revenue is growing rather than shrinking.

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You probably saw one of the many stories about the US government charging nine Iranians with "conducting massive cyber theft campaign on behalf of the Islamic Revolutionary Guard Corps", as the Department of Justice put it in its press release on the move:

Since the FCC rushed to give telecom monopolies a sloppy kiss with its net neutrality repeal late last year, more than half the states in the country are now pursuing their own net neutrality rules. Some states (most recently Washington and Oregon) have already passed legislation that effectively takes the FCC rules and encodes them on the State level (in some cases with a few improvements). Other states have signed executive orders that prohibit states from doing business with or subsidizing ISPs that engage in anti-competitive behavior.With the FCC's repeal on shaky legal ground and states now passing even tougher net neutrality rules, ISP lobbyists have truly begun reaping what they've sown. And it's becoming increasingly clear they're both annoyed and nervous as the true scale of their poor judgement comes into view.For example, US Telecom, a top lobbying arm of the telecom sector (primarily funded and operated by AT&T), this week penned this blog post making it clear that major ISPs would fight tooth and nail against state efforts to (gasp) actually protect consumers from predatory telecom monopolies:

When it comes to censorship in the name of copyright, we've made the point time and again that opening this door an inch will cause supporters of censorship to try to barge through and open it all the way. Inevitably, when a population tries to satiate the entertainment industry by giving them just a little censorship, that industry will ask for more and more and more.A good example of this can be seen right now in Australia. Like far too many countries, Australia began a site-blocking practice three or so years ago. Currently, the Department of Commnications is asking for feedback on the effectiveness of this practice as well as feedback on each step in the process itself. The way it works in Australia is that rightsholders have to get an initial injunction which then winds its way to a site being blocked as a "pirate site." Well, for the largest entertainment industry groups in Australia, the feedback is essentially, "This is great, let's censor even more!"

Many of us tend to take the amazing resource of Wikipedia for granted: it's hard to imagine online life without it. But that doesn't mean its position is assured. As well as continuing funding uncertainty, it is also subject to legal attacks that call into question its innovative way of letting anyone create and edit articles. For example, in 2012 a former Italian Minister of Defense sued the Wikimedia Foundation in Italy for hosting a Wikipedia article he alleged contained defamatory information. He had sent a letter demanding that the article in question should be removed, without even specifying the exact page or where the problem lay, and filed the suit when the page was not taken down.In 2013, the Civil Court in Rome ruled that the Wikimedia Foundation, which hosts Wikipedia, cannot be held liable for the content of Wikipedia articles, which it does not control. Unsurprisingly, the former minister appealed, and the Court of Appeals in Rome has just handed down its judgment, which is in favor of the Wikimedia Foundation:

For years now, a guy by the name of Chris Sevier has been waging a fairly facts-optional war on porn. Sevier first came to fame for trying to marry his computer to protest same sex marriage back in 2016. He also tried to sue Apple after blaming the Cuppertino giant for his own past porn addiction, and has gotten into trouble for allegedly stalking country star John Rich and a 17-year-old girl. Sevier has since been a cornerstone of an effort to pass truly awful porn filter legislation in more than 15 states under the disengenuous guise of combatting human trafficking.Dubbed the "Human Trafficking Prevention Act," all of the incarnations of the law would force ISPs to filter pornography and other "patently offensive material." The legislation would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home. The proposal is patently absurd, technically impossible to implement, and yet somehow these bills continue to get further than they ever should across a huge swath of the boob-phobic country.Rhode Island was the latest state to consider such legislation, their version of the law (pdf) imposing fines up to $500 for each instance of offensive content ISPs failed to filter (costs that would, as always, just be passed on to the end consumer while tech-savvy porn users simply tap-dance around the restrictions). Sevier's garbage legislation saw some success in the state after Sevier randomly affixed kidnapping-victim Elizabeth Smart's name to the proposal to help sell it (her name is referenced on his website), something Smart herself has been none too happy with.Thanks to Smart's recent disgust at having her name hijacked, the original backer of the law in Rhode Island, State Senator Frank Ciccone, has decided to scrap the proposal after learning about its "dubious" origins:

Last week we noted that Best Buy was the latest to join a growing, evidence-optional blacklisting of Huawei based on ambiguous "national security" concerns. We also noted how despite a lot of hand-wringing on certain fronts for most of this decade, nobody has been able to provide evidence that Huawei actively spies on American consumers, the justification for similar blacklisting by AT&T and Verizon earlier this year (both bosom bodies with the NSA, it probably goes without saying). Few news outlets bother to mention an 18-month investigation found no evidence of wrongdoing by Huawei.While it's certainly possible Huawei is embedding backdoors no security researcher has been able to ferret out, it's just as possible that we're engaging in good, old-fashioned vanilla protectionism dressed up as ambiguous national security concerns. As one anonymous source told the Washington Post during the last flare up of Huawei phobia, getting non-tech savvy lawmakers riled up on this subject isn't particularly difficult:

We've discussed many times just how silly it is to expect internet platforms to actually do a good job of moderating their own platforms. Can they do better? Yes, absolutely. Should they put more resources towards it? For the most part, yes. But there seems to be this weird belief among many -- often people who don't like or trust the platforms -- that if only they "nerded harder" they could magically smarts their way to better content moderation algorithms. And, in many cases, they're demanding such filters be put in place and threatening criminal liability for failing to magically block the "right" content.This is all silly, because so much of this stuff involves understanding nuance and context. And algorithms still suck at context. For many years, we've pointed to the example of YouTube shutting down an account of a human rights group documenting war crimes in Syria, as part of demands to pulldown "terrorist propaganda." You see, "terrorist propaganda" and "documenting war crimes" can look awfully similar. Indeed, it may be exactly the same. So how can you teach a computer to recognize which one is which?There have been many similar examples over the years, and here's another good one. The Atlantic is reporting that, for a period of time, YouTube removed a video that The Atlantic had posted of white nationalist Richard Spencer addressing a crowd with "Hail, Trump." You remember the video. It made all the rounds. It doesn't need to be seen again. But... it's still troubling that YouTube removed it. YouTube removed it claiming that it was "borderline" hate speech.And, sure, you can understand why a first-pass look at the video might have someone think that. It's someone rallying a bunch of white nationalists and giving a pretty strong wink-and-a-nod towards the Nazis. But it was being done in the context of reporting. And YouTube (whether by algorithm, human, or some combination of both) failed to comprehend that context.Reporting on "bad stuff" is kind of indistinguishable from just promoting "bad stuff."And sometimes, reporting on bad stuff and bad people is... kind of important. But if we keep pushing towards a world where platforms are ordered to censor at the drop of a hat if anything offensive shows up, we're going to lose out on a lot of important reporting as well. And, on top of that, we lose out on a lot of people countering that speech, and responding to it, mocking it and diminishing its power as well.So, yes, I can understand the kneejerk reaction that "bad stuff" doesn't belong online. But we should be at least a bit cautious in demanding that it all disappear. Because it's going to remain close to impossible to easily determine the difference between bad stuff and reporting on that bad stuff. And we probably want to keep reporting on bad stuff.

Italy is rolling out new laws to deal with "fake news." The Italian government can't define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to "see something, say something," thanks to the government's online portal which will allow brigaders and hecklers to cleanse the web of things they don't like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone's time.And that's just the bureaucratic side of it. This portal will link to law enforcement so Italy's uniformed cyberwarriors can go harass citizens over alleged fakery the government can't even clearly define. There's nothing like settling discussions about factual misconceptions with shows of force from government reps.Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That's not going to keep it in line with internationally-recognized human rights.

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Yesterday we went through the details of the truly awful appeals court decision by the Court of Appeals for the Federal Circuit (CAFC) concerning whether or not Google copying a few pieces of the Java API for Android was fair use. As we mentioned, there were a whole bunch of oddities both in the procedural history of the case, but especially in the CAFC's decision here that has left a ton of legal experts scratching their heads. What becomes quite clear is that the CAFC panel decided long ago that Google infringed, and it's not going to let the law or even consistency get in its way. As you'll recall, the same three panel set of judges (Judges Kathleen O'Malley, Jay Plager, and Richard Taranto) made a terrible, nonsensical, technically ignorant ruling four years ago, saying that APIs are covered by copyright and then sent the case back to the lower court to hold a new trial on fair use.As we noted in yesterday's post, what's really incredible is that part of the reasoning in the CAFC opinion from four years ago is "this is an issue that a jury should hear to determine if it's fair use." And the ruling yesterday said "no reasonable jury could possibly find fair use" (after the jury here did find fair use). Which raises the question of why the fuck did the CAFC send the case back in the first place? To waste everyone's time? To pad the wages of the very very expensive lawyers employed by Oracle and Google? To waste Judge Alsup's time?Carolyn Homer, a lawyer who recently left a "biglaw" firm where she did copyright and free speech law for a public interest free speech law job, put together a fantastic chart comparing the 2014 CAFC ruling in this case and the 2018 ruling, highlighting where they appear to disagree with one another.

AT&T and the Department of Justice are ramping up their legal arguments in court as the DOJ tries to block the company's $86 billion acquisition of Time Warner. While some question the DOJ's real motives in the case (Trump ally Rupert Murdoch has been lobbying against the deal for competitive reasons for a year), consumer advocates agree that the deal will be horrible for consumers and competitors alike. AT&T already has a long, epic history of anti-consumer behavior, and critics charge the greater leverage will only let AT&T jack up licensing costs for competitors trying to compete with AT&T's own streaming services.To glean support for its unpopular merger, AT&T offered a special deal to 1,000 of its competitors. According to AT&T's proposal, if competitors agreed to support the merger, the company promised send any price disputes with other cable companies to an outside arbitration process. Most competitors were pretty clearly not impressed:

As you probably recall, last year the FBI tried to force a court to effectively create a backdoor for encrypted iPhones, using the high profile San Bernardino shootings as the wedge. It seemed quite obvious with how the whole thing played out that the FBI didn't really need to get into Syed Farook's work iPhone, but that it hoped leverage the high profile nature of the case and the "fear, uncertainty and doubt" around a "terrorist" attack to finally get a court to force Apple to do this. A new report reveals that the FBI was very much focused on using this case to force the issue to the point that top officials were angry that a vendor figured out another way into the iPhone, and stopped the court proceedings.Again: if the real goal (as stated publicly by the FBI at the time) was to find a way into this phone for important reasons, then you'd think the FBI would be excited when they found a way in, rather than pissed that a court wasn't needed to force a backdoor. But that's not what happened.A recently-released Inspector General's report [PDF] shows the FBI jumped the gun in the San Bernardino case. The FBI insisted it had no other options when it asked a judge to grant its All Writs Act request to compel Apple to break into the shooter's recovered iPhone. But this report shows these claims -- one repeated by the DOJ in its legal filings and by James Comey in testimony to Congress -- weren't actually true.

Macy's, the enormous retail company famous for its enormous department stores, has been featured in our pages before throwing its weight around over trademark concerns. If you had thought that the company has ceased its trademark-bullying ways, a recent report featuring a tiny hair salon in Scotland named after the founding couple's daughter will disabuse you of this notion.

By now, most folks have read about the fact that Uber (surprise) was responsible for the first ever pedestrian fatality caused by a self-driving car in the United States. Investigators in the case have found plenty of blame to go around, including a pedestrian who didn't cross at a crosswalk, an Uber driver who wasn't paying attention to the road (and therefore didn't take control in time), and Uber self-driving tech that pretty clearly wasn't ready for prime time compared to its competitors:

Facebook. Cambridge Analytica. Need I say more? There's plenty to discuss. Among them is the question of similarities between what happened and the Obama campaign — which is why we're lucky to be joined this week by Catherine Bracy, who led the Obama campaign's San Francisco tech office, and worked on its Facebook app, for a discussion about what really went down with Cambridge Analytica, and all the misinformation that's out there.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.

It may be time to do some tests of Rhode Island water for heavy metals, as the state is experiencing a spasm of stupid when it comes to lawmaking. You will recall that there have been two recent proposals for new taxes in Rhode Island, one that would target video games rated "Mature" or higher, and one taxing the removal of porn-blocking software from any internet connected device sold in the state. If both sound almost hilariously unconstitutional to you, don't worry, they are. These laws likely won't pass and, if they do, the Supreme Court will certainly look upon them the same way a professional golfer looks at a two-inch putt. That the work of the anti-porn law is largely that of Chris Sevier, or Mark Sevier when the mood strikes him, who once tried to marry his own computer in protest of gay marriage and has been charged with stalking people twice, gives rise to one question: why are legislators in several states paying any of this any attention at all?Sadly, it's an open question. Mostly unreported in the past is that Sevier is pitching this law, formally the Human Trafficking and Child Exploitation Prevention Act, by slapping Elizabeth Smart's name all over it and promoting it as the Elizabeth Smart Law. Smart, should you not know, was kidnapped when she was a teenager and forced by her captor to do all sorts of inhuman things, including the forced watching of pornography. Smart now often speaks about the harm of some pornography in some situations for some people. What she has not done, apparently, is consented to have her name used to push this particular bill in Rhode Island.

Oh, CAFC. The Court of Appeals for the Federal Circuit has spent decades fucking up patent law, and now they're doing their damndest to fuck up copyright law as well. In case you'd forgotten, the big case between Oracle and Google over whether or not Google infringed on Oracle's copyrights is still going on -- and it appears it will still be going on for quite a while longer, as CAFC this morning came down with a laughably stupid opinion, overturning the district court's jury verdict, which had said that Google's use of a few parts of Java's API was protected by fair use. That jury verdict was kind of silly in the first place, because the whole trial (the second one in the case) made little sense, as basically everyone outside of Oracle and the CAFC had previously understood (correctly) that APIs are simply not covered by copyright.Section 102(b) of the Copyright Act says quite clearly:

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A Pennsylvania dentist clinic has manage to destroy its reputation with a tactic it thought might actually drum up some business. Letters sent to parents by Smiles 4 Keeps suggested the dental clinic would get law enforcement involved if the company didn't see an uptick in new appointments.The letter, posted here by Twitter user @_NotYourMom, makes it clear the Smiles 4 Keep has interpreted Pennsylvania's child abuse reporting statutes to mean it can report parents to state authorities for not partaking of the clinic's services often enough.Here are the relevant parts of the heavy-handed threats Smiles 4 Keeps has been sending to parents.

By and large, the added competition being levied upon the traditionally apathetic pay TV industry has been a good thing. Though it has taken a decade longer than it probably would have in a healthier market, the rise of streaming competitors has forced incumbent cable companies like Comcast to up their game and at least consider lowering prices, improving abysmal customer service, and offering more flexible video options.Granted many pay TV execs seem intent on doubling down on the dumb ideas that cause cord cutting in the first place, but it's indisputable that we're finally seeing some evolution in the traditionally stubborn sector. Pay TV sector executives that believe cord cutting is a fad that magically ends once Millennials procreate are increasingly being marginalized, as are executives that believe they can milk the dying traditional TV cash cow indefinitely without repercussions.That's not to say that the new streaming frontier isn't going to be without some pretty notable problems. Studies suggest that by 2022, nearly every broadcaster, cable channel, and their mother intend to offer a direct to consumer streaming video product. That includes Disney, which later this year will be pulling most of its most popular content from services like Netflix and Hulu (Star Wars, Marvel films, Pixar titles) and exclusively hosting them on its own, new streaming video platform.On its surface this improved level of competition is most assuredly a good thing. But as we've noted previously there's a problem brewing here that most executives and analysts don't seem particularly keyed into. Namely, that once you've cordoned off each broadcaster and content-creator's product into countless walled silos -- each requiring their own subscription -- you've not only countered the biggest benefit of the streaming revolution (lower prices, greater flexibility), you've opened the door to customers getting frustrated and returning to piracy.It's pretty rare that I see research firms point out this potential pitfall. For example, The Diffusion Group's study noted that while they predict every broadcaster will offer their own streaming service by 2022, this could simply increase the number of annoying retrans and carriage feuds (and the annoying blackouts and price hikes that result) between cable companies and broadcasters:

The New York Times is reporting that the War on Encryption continues, with a renewed push for legislation the Justice Department couldn't talk Obama into.

As we've pretty well documented, the internet of things is a security and privacy shitshow. Millions of poorly-secured internet-connected devices are now being sold annually, introducing massive new attack vectors and vulnerabilities into home and business networks nationwide. Thanks to IOT companies and evangelists that prioritize gee-whizzery and profits over privacy and security, your refrigerator can now leak your gmail credentials, your kids' Barbie doll can now be used as a surveillance tool, and your "smart" tea kettle can now open your wireless network to attack.Security analysts like Bruce Schneier have been warning for a while that the check is about to come due for this mammoth dumpster fire, potentially resulting in human fatalities at scale -- especially if these flaws are allowed to impact integral infrastructure systems. But Schneier has also done a good job noting how nobody in the production or consumer cycle has any incentive to take responsibility for what's happening:

Just a quick update on the current craziness going on in the Swedish court system. In the middle of 2017, we wrote about the Swedish authorities raiding the offices of Undertexter, a site that provides fan-created subtitles of movies. Many people were confused by this, but the film industry has long branded fan-made subtitles as contributors to piracy, allowing people in foreign countries to download films and append the subtitles to watch them, rather than buying the localized version. The industry also argues that these subtitles are themselves copyright infringement, as they essentially reproduce the film's script in another language.Founder Eugen Archy was convicted of copyright infringement. Ever the fighter, he appealed, but now we learn that Archy has lost his appeal as well.

For no imaginable reason, Twitter continues to allow Turkish president Recep Tayyip Erdogan to cleanse the internet of stuff he doesn't like. This doesn't begin and end with Twitter -- other social media platforms have obliged the president as well -- but Twitter is where it's most quickly noticed that something has gone missing.Kurdish-American activist and attorney Samira Ghaderi recently saw one of her tweets memory-holed in response to a Turkish court order. Now, it's one thing when social media companies start geoblocking/vanishing posts originating in the country where the legal complaint was filed. It's quite another when they allow Turkish law to take precedence over US law, which is what appears to have happened here.

Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French's video for a wonderful dramatic reading of the letter):Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray's letter to the docket in the case, along with a bit of a benchslap:

Cannes this week declared that the long-running festival would be banning streaming services like Netflix from being able to win the Palme d’Or. That said, festival leaders weren't able to offer a coherent reason why. Festival boss Thierry Fremaux apparently tried to offer something vaguely resembling an explanation to a variety of different news outlets, but wasn't particularly successful. Most of the arguments made by Fremaux to the press had something to do with Netflix being different (gasp) from the traditional film industry production and criticism model:

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Assuming you haven't been living under a rock, you know that on Sunday night, porn star Stephanie Daniels (real name: Stephanie Clifford) did a big interview with Anderson Cooper on 60 Minutes. Much of what was in there had been previously reported, though this is the first time many of the claims came directly from Daniels herself. But there was one "big" new claim, which hadn't previously been reported, and which is now getting lots of attention. It's that when she first considered telling her story in 2011, someone threatened her pretty directly:

Oh, good. Someone's trying to make journalism as dangerous as security research. A Canadian journalist who did something journalists do all the time is now facing the possibility of criminal charges for doing his job.

It's really quite incredible how, at nearly every turn, the New Zealand government has managed to mess up the legal case against Kim Dotcom. The raid on his house was later declared to be illegal, using invalid warrants. Evidence that was seized from his home and illegally turned over to the FBI was ordered to be returned. Oh, and then there was the whole bit about conducting illegal surveillance on Dotcom, deleting evidence of that illegal spying, and ordering officials to "bury" information about that illegal surveillance to avoid embarrassing the Kiwi government.And now we have the latest: A Human Rights Tribunal in New Zealand has declared that the New Zealand government violated Dotcom's rights in withholding information from him. Specifically, in July of 2015, Dotcom had made an information request (in New Zealand it's an "information privacy request" which appears to be a quasi-privacy/data protection-type right in New Zealand) to various officials in the government requesting whatever personal information they held on him. The recipients of the demands sent them to the Attorney General, who refused to comply with the demands, claiming they were "vexatious and included information that was trivial."The Tribunal disagrees. It goes through, in pretty great detail, the procedural issues at play here, including an attempt to discover this information by way of his extradition case, which was denied by the court. But that still left open the information privacy request. The court then goes through the question of whether or not it was even appropriate for everyone who received the request to hand them over to the Attorney General. This is done in almost excruciating detail, which we'll save you from having to go through yourself (unless you'd like to dig in below). However, the tribunal sums up the issue by basically pointing out that the recipients of the request were not supposed to transfer those requests to the Attorney General in the first place, as they had no legitimate reason to do so under the law (the fact that Dotcom was fighting the government in an extradition case is not enough).

This week, our first place winner on the insightful side is an anonymous commenter responding to the claim that the Blurred Lines ruling isn't a problem because lots of songs are not similar:

Five Years AgoThis week in 2013, EA/Maxis was dealing with the fallout from its disastrous SimCity launch, which was ruined by always-online DRM (which, it turns out, was also disastrously hackable), by offering up tonedeaf responses while giving away earlier versions of the game as a weak apology. They were drawing ire from other developers, and then things got worse as a security hole was discovered in EA's Origin platform itself. Meanwhile, we were digging in to copyright boss Maria Pallante's call for comprehensive, forward-thinking copyright reform, which included some good ideas like not seeing personal downloading as piracy, but was still largely focused on bad ideas.Ten Years AgoThis week in 2008, the makers of e-voting machines were doing everything they could to avoid scrutiny, so while machines in Ohio were declared a crime scene, Sequoia was trying to keep Ed Felten away from reviewing its machines and succeeded in scaring officials into backing down — all while a new study showed a massive error rate in e-voting.This was also the week that the world lost Arthur C. Clarke.Fifteen Years AgoIt was this week in 2003 that the US invaded Iraq. Though the war didn't dominate our writing on Techdirt, we did take a look at the businesses rapidly moving to explore whether this would help or hurt them, and the discussion around how this was the first true war of the internet era and the implications of that for journalists. And it didn't take long for "war" to oust "sex" and "Britney Spears" as the top internet search.Also this week: the RIAA moved into the suing-companies phase of its anti-file sharing crusade; a Texas congressman wanted to throw college students in jail for file-sharing, though surveys of students showed they had a much more modern understanding of the issues at stake; and MIT's tech review continued sounding the warning bells about America becoming a surveillance nation.

Predictive policing software -- developed by Palantir and deployed secretly by the New Orleans Police Department for nearly six years -- is at the center of a criminal prosecution. The Verge first reported the NOPD's secret use of Palantir's software a few weeks ago, something only the department and the mayor knew anything about.

A few years back, you might recall that there was a period of immense government and media hyperventilation over allegations that Chinese hardware vendor Huawei spied on an American consumers. Story after story engaged in hysterical hand-wringing over this threat, most of them ignoring that Chinese gear and components are everywhere, including in American products. So the government conducted an 18 month investigation into those allegations and found that there was no evidence whatsoever to support allegations that Huawei spies on Americans via its products. One anonymous insider put it this way at the time:

Last week the Tenth Circuit refused to let New Mexico's anti-SLAPP statute be used in federal court in diversity cases. The relatively good news about the decision is that it is premised heavily on the specific language of New Mexico's statute and may not be easily extensible to other states' anti-SLAPP laws. This focus on the specific language is also why, as the decision acknowledges, it is inconsistent with holdings in other circuits, such as the Ninth. But the bad news is that the decision still takes the teeth out of New Mexico's statute and will invite those who would abuse judicial process in order to chill speech to bring actions that can get into the New Mexico federal courts.In this case, there had been litigation pending in New Mexico state court. That litigation was then removed to federal court on the basis of "diversity jurisdiction." Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can't hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.At the same time, we don't want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don't want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the "Erie doctrine," named after a 1938 US Supreme Court case that is still followed today.The Erie doctrine is why a case removed to federal court will still use state law to decide the matter. But sometimes it's hard to figure out how much state law needs to be used. Federal courts have their own procedural rules, for instance, and so they are not likely to use procedural state rules to govern their proceedings. They only will use substantive state law. But it turns out that figuring out which a law is, procedural or substantive, is anything but straightforward, and that is the question at the heart of this Tenth Circuit case: was New Mexico's anti-SLAPP law procedural, in which case the federal court did not have to follow it, or substantive, in which case it did? And unfortunately in this case, Los Lobos Renewable Power LLP v. Americulture, Inc., the Tenth Circuit decided it was "hardly a challenging endeavor" to decide that it was only procedural.It based a significant portion of its decision on language unique to the New Mexico statute that differed from other states' and emphasized its procedural operation:

As we've been discussing all week, a lot of people are reacting to the wrong thing in the whole Facebook / Cambridge Analytica mess. The problem was not that Facebook had an open API -- but that its users were unaware of what was happening with their own data. Unfortunately, many, many people (including the press and politicians) are running with the narrative that Facebook failed to "protect" data. And, just as we warned, the coming "solutions" won't help matters, but will actually make them worse.Case in point: when Mark Zuckerberg finally made his big press tour on Wednesday evening, he repeatedly told people that, the public has spoken and Facebook will lock down your data now.

The security researcher who was at the center of an audacious and disturbing government demand to unmask several Twitter accounts on the basis of an apparently menacing smiley emoji contained in one of them is now facing zero prison time for his supposed harassment of an FBI agent. Justin Shafer, who was originally facing five felony charges, has agreed to plead guilty to a single misdemeanor charge. Shafer, who spent eight months in jail for blogging about the FBI raiding his residence repeatedly, is finally going home.Here are the details of plea agreement [PDF] Shafer has agreed to. (h/t DissentDoe]

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It's not like people didn't warn about this. But, following Congress passing SESTA (likely to be signed soon by the President), a bunch of sites are already starting to make changes. Craiglist is probably the most notable, announcing that it was completely shutting down its Personals Section:

We've noted for some time how the broadband industry fights tooth and nail against more accurate broadband availability mapping, since having a better understanding of the broadband industry's competition problem might just result in somebody actually doing something about it. This dysfunction and apathy was most recently illustrated with the FCC's recent release of an "updated" broadband availability map, which all but hallucinates competition, speeds, and overall availability. This map (available here) also omits pricing data at industry behest, resulting in a $300 million pair of rose-colored glasses.But it's not just the FCC's broadband availability map that's under fire. FCC maps that determine which area get wireless subsidies (more specifically Mobility Fund Phase II (MF II) funding) are also a bad joke for many of the same reasons. As such, a group of Senators from both parties fired off a letter to the FCC last week, politely pointing out how the FCC's new wireless coverage map dramatically overstates the availability of wireless broadband service:

As Spain continues to expand its (anti-)speech laws, the rights of its citizens continue to contract. Not content with making it illegal to insult a cop or government officials, the Spanish government has decided to tackle hate speech and terrorism with the same ineptitude.There's no punchline here. People are being arrested and charged with speech having nothing to with promoting hate or terrorism. And this is in addition to people who've found themselves targeted by vindictive public servants for daring to publicly criticize their words or actions.It's gotten so bad Amnesty International -- an entity that usually spends its time decrying the acts of dictators and brutal authoritarians -- has felt compelled to speak up about Spain's terrible speech laws. Mathew Ingram has more details at Columbia Journalism Review.

Missing from far too many of the stories we post on trademark bullies is anything amounting to blowback. While it happens on occasion, the reason that trademark bullying works is due to the costs for any sort of defense, nevermind the cost that would be required to actually go on the offense against a bully. Still, that isn't to say that when a trademark bully picks a fight that it cannot sometimes lead to a backfire.That appears to be the risk Chicago's famous Billy Goat Tavern now faces after it sued Billy Goat Chip Co., given the countersuit and factual response made by the chip company. Billy Goat Tavern filed suit in 2017, alleging that the St. Louis potato chip maker was infringing on its trademark with its name and logo, which uses the silhouette of a rearing billy goat. For what it's worth, the tavern's logo is completely different and features a fully detailed cartoon head of a goat, not a black outline like the chip company.But based on the information in the countersuit, it seems there is much more factual information the tavern ought to have considered before filing its initial lawsuit.

In the wake of a Tempe, Arizona woman being struck and killed by an Uber autonomous vehicle, there has been a flurry of information coming out about the incident. Despite that death being one of eleven in the Phoenix area alone, and the only one involving an AV, the headlines were far closer to the "Killer Car Kills Woman" sort than they should have been. Shortly after the crash, the Tempe Police Chief went on the record suggesting that the victim had at least some culpability in the incident, having walked outside of the designated crosswalk and that the entire thing would have been difficult for either human or AI to avoid.Strangely, now that the video from Uber's onboard cameras have been released, the Tempe police are trying to walk that back and suggest that reports of the Police Chief's comments were taken out of context. That likely is the result of the video footage showing that claims that the victim "darted out" in front of the car are completely incorrect.

We were concerned, last month, by the appeals court ruling in the Cox v. BMG case regarding the DMCA's repeat infringer policy rules, though the more I've reread that ruling, I've become less bothered by it. While I'm still concerned about how bad decisions by Cox created potentially bad law, there are enough specifics in the ruling that hopefully will limit the impact to specific circumstances. In particular, whereas Cox was found to not have implemented a "reasonable" termination policy for repeat infringers, the court does acknowledge that the law means that the platforms have wide leeway in determining what their termination policy should be. The real problem for Cox was that it appeared not to actually follow its own policy, and thus did not reasonably implement it.That was over in the 4th Circuit. Last week, the 9th Circuit ruled on a case where there were also questions about a repeat infringer policy, and the ruling is a clean ruling in defense of platforms determining their own rules for terminating repeat infringers. The case, Ventura Content v. Motherless, involves a porn producer suing a site that allowed user uploads of porn. From the description in the case, Motherless qualifies for the DMCA's safe harbors as a site where the content is submitted by users, and the ruling goes into great detail about the steps that Motherless's sole employee, Joshua Lange, goes through to review content uploaded to the site to make sure it doesn't violate the site's terms (which mostly seem aimed at blocking child porn). Motherless also appears to follow a pretty standard DMCA takedown process. Actually, the site appears to go beyond what is legally required in accepting notices that don't even meet the DMCA notice standard, and removing much of the notified content.While the site did not have a written out "repeat infringer policy," Lange did have some mental metrics he used in reviewing accounts, and did shut off ones that were receiving lots of copyright takedown notices.