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It is nearly 30 years since the wall separating East and West Berlin came down, and yet work is still going on to deal with the toxic political legacy of East Germany. As Techdirt readers are well aware, one of the defining characteristics of the regime in East Germany was the unprecedented -- for the time, at least -- level of surveillance inflicted on citizens by the Stasi (short for Staatssicherheitsdienst, or State Security Service). This led to the creation of huge archives holding dossiers about millions of people.As it became clear that East Germany's government would fall, and that its long-suffering citizens would demand to know who had been spying on them over the years, Stasi officers began to destroy the most incriminating documents. But there were so many files -- a 2008 Wired article about them says they occupied 100 miles of shelving -- that the shredding machines they used started to burn out. Eventually, Stasi agents were reduced to tearing pages by hand -- some 45 million of them, ripping them into around 600 million scraps of paper.After thousands of bags holding the torn sheets were recovered, a team working for the Stasi records agency, the body responsible for handling the mountain of paper left behind by the secret police, began assembling the pages manually. It was hoped that the re-assembled documents would shed further light on the Stasi and its deeper secrets. But it was calculated that it would take 700 years to deal with all the scraps of paper by hand. A computerized approach was devised by the Fraunhofer Institute, best-known for devising the MP3 format, and implemented following a pilot project. After some initial successes, the program has run into problems, as the Guardian reports:

Late last year, we brought to you the story of Dennis Prager, noted conservative commentator, suing YouTube, noted place where you can watch videos, because the site had put some of his videos into restricted status to keep them from the eyes of younger users. The case is still ongoing and is still strange for many reasons, including Prager asserting his lawsuit on First Amendment grounds, his insisting that YouTube is a public forum and not a private company, and his belief that the Section 230 protections that protect YouTube from every last bit of this somehow don't apply.But now he is upping the ante, requesting the court grant him a preliminary injunction against YouTube to keep it from operating its filters on its own site when it comes to his video content.

Marcus Hutchins, a.k.a. MalwareTech, went from internet hero (following his inadvertent shutdown of the WannaCry ransomware) to federal government detainee in a surprisingly short amount of time. Three months after saving the world from rampaging malware built on NSA exploits, Hutchins was arrested at the Las Vegas airport as he waited for his flight home to the UK.When the indictment was published, many people noted the charges didn't seem to be backed by much evidence. The government accused Hutchins of creating and selling the Kronos malware, but the offered very little to support this claim. While it's true much of the evidence against Hutchins will be produced in court, the indictment appeared to be stretching legal definitions of certain computer crimes to their limits.The government's case appears to be weak and reliant on dubious legal theories. It's not even 100% clear that creating and selling malware is an illegal act in and of itself. The charges the government brought rely heavily on proving Hutchins constructed malware with the intent to cause damage to computers. This isn't so easily proven, especially when the government itself is buying malware to deploy for its own purposes and has yet to bring charges against any of the vendors it buys from. Anyone selling exploits to governments could be said to be creating malware with intent to cause harm. That it's a government, rather than an individual, causing the harm shouldn't make any difference -- at least not if the government wants to claim selling of malware alone is a federal offense.The case appears to be even weaker now that more paperwork has been filed by both parties. If the government has a lot of evidence to use against Hutchins, it has yet to present it to Hutchins' lawyers. What's detailed in the motion to compel recently filed by Hutchins' defense team shows the government is either playing keep-away with crucial information or simply does not have much evidence on hand.Marcy Wheeler digs into the motion to compel [PDF] and notes it appears to show the government's case is incredibly weak. And if sketchy, minimal evidence doesn't undo the government's case, the actions of the FBI agents involved might.First, there are some questions about the circumstances surrounding Hutchins' detainment at the Las Vegas airport. As the motion points out, there's a good chance Hutchins was in no condition to consent to an interrogation, having been up late the night before drinking and celebrating the wrap-up of the conferences he had attended.

We've been writing about the world's largest biometric database, India's Aadhaar, since July 2015. Over 1.1 billion people have now been enrolled, and assigned an Aadhaar number and card, which represents 99.9% of India's adult population. There are currently around 40 million authentications every day, a number that will rise as Aadhaar becomes inescapable for every aspect of daily life in India, assuming it survives legal challenges. That scale necessarily entails a huge infrastructure to handle enrollment and authentication. So it will comes as no surprise to Techdirt readers that it turns out you can obtain unauthorized access to the Aadhaar system very easily, and for very little cost. As the Indian newspaper The Tribune revealed:

If you spend much time on political Twitter -- or the more fun elements of the self-described "Weird Twitter" -- then you're probably already quite aware of the truly wonderful @pixelatedboat account. That account's biggest claim to fame is Milkshake Duck (the best absurdist encapsulation of how the internet frequently builds up some new internet superstar out of nothing, only then to discover their hero has flaws...), but the account also has a very long (and very amusing) history of posting "fake screenshots." See, for example, the one PixelatedBoat posted on New Years, satirizing Neil deGrasse Tyson:

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As you likely recall, last week, lawyer Charles Harder* sent a letter on behalf of Donald Trump threatening to sue former advisor Steve Bannon, author Michael Wolff, and publisher Henry Holt for defamation having to do with the publication of Wolff's new book about Trump. The full letter to Wolff and Henry Holt & Co. was published by the Hollywood Reporter and does not list out any statements that are claimed to be defamatory -- which is often a hallmark of a totally bumptious defamation threat.Over the weekend, during a press conference, Trump appeared to admit that he can't actually sue for defamation. In the midst of a Trumpian ramble in response to a question about the book, he includes the following:

The last few years, cable TV customers have faced a growing number of obnoxious carriage fee blackouts, which occur when broadcasters and cable operators can't agree on new programming contracts. Such feuds usually go something like this: a broadcaster will demand a fairly obnoxious price hike for the same content, to which the cable provider (already awash in complaints about higher rates) will balk. Instead of negotiating their differences like adults, this content is subsequently blacked out for paying customers to force a settlement. Customers never see refunds for the inconvenience of being used as props.For weeks, consumers are bombarded with PR missives, new websites and on-screen tickers all trying to amplify public outrage and drive greater pressure for one side or the other to buckle. After a while, the two sides strike a new confidential deal, and the higher rates are then quickly passed on to consumers. In a letter to lawmakers last year, Dish Network argued that consumers have faced 750 such broadcaster blackouts since 2010, with the retransmission consent fees that broadcasters demand growing a whopping 27,400% between 2005 and 2016.It's an idiotic cycle of dysfunction that's unsustainable and only acts to drive consumers to alternative video options (like piracy). The fact that these costs are only driving users away from the traditional pay TV ecosystem is irrelevant to many cable and broadcast executives, who seem inclined to believe that they'll be able to nurse this dying cash cow in perpetuity.The annoying phenomenon shows no sign of slowing down in 2018. Frontier customers in Seattle this week lost access to CBS after the company says it was told it needed to pay 80% more money for the same exact content:

Germany's new hate speech law just went into effect at the beginning of the year and it's already paying off. But not in the way German government officials expected, nor in the way anyone who isn't in the German government wanted it to.The law is a bad one: it criminalizes certain speech, which is already problematic. The problems go much deeper than that, though. Instead of targeting German citizens who post illegal speech, the government targets American social media platforms, demanding the removal of illegal posts in less than 24 hours on the pain of up to €50m fines. On top of that, employees of service providers tasked with removals can also be fined €5m personally for not reacting fast enough to government demands.So, it's bad. And determining what is or isn't illegal is in the eyes of government beholders. Faced with the prospect of expensive fines, Twitter, Facebook, etc. are probably not going to be second-guessing many government requests for content deletion. Worse, it's going to encourage service providers to be proactive, amplifying the underlying vagueness of the German "hate speech" law. False positives are a given. We just didn't expect the collateral damage to occur so quickly.

This week, our first place winner on the insightful side is a simple comment from Mason Wheeler making a straightforward proposal regarding copyright terms on America's (hopefully last) empty Public Domain Day:

Five Years AgoThis week in 2013, we kicked off the year by witnessing things start to go seriously wrong for a little law firm by the name of Prenda. Well, that and noting how, as usual, nothing at all was entering the public domain (a situation that looked like it could be extended thanks to the supreme court). The Megaupload case was mired in the courts and some companies were getting impatient. And we saw some pretty stunning DMCA nonsense with a takedown over a barely-customized default blog login page.Ten Years AgoThis week in 2008, Hollywood was getting a taste of trade negotiation problems, the RIAA was admitting some errors in the Jammie Thomas trial (while flubbing an opportunity for some not-awful PR), and RealNetworks (which was still around) was shutting down competitors. We couldn't help think the entertainment industry needed to learn from the folks making a living by selling public domain content on eBay.Fifteen Years AgoThis week in 2003 (and the last few days of 2002), the internet was changing and growing: it appeared that criminals had really figured out to use it, and there was a debate over dropping the capital "I" at the beginning, and of course some time to mourn the death of the payphone. We saw the DMCA abused to take down an entire web host over one claim of infringement, and record labels try to claim that even 95 years is too short for copyright, while one author was trying to challenge the unusual copyright on Peter Pan, and the tech industry was gearing up to fight back against DRM. Also, we celebrated the 20th birthday of TCP/IP.

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

Ignorance of the law is no excuse… unless you're a police officer. Then it's a magical world of immunity and good faith exceptions! But it gets even better. In Florida, ignorance of the law is highly-profitable.

French President Emmanuel Macron was held up by some in the tech industry as a moderate who "got technology" leading up to his election. And yet, every time he seems to weigh in on tech related issues, it's with an absolutely terrible take on it. He wanted to mandate encryption backdoors and demand internet censorship of "radicals" online who post "inflammatory content." And now he's expanding that position and saying he wants to ban "fake news" during election season.

The implications of YouTube's ContentID system in an era of user-generated content can sometimes be quite muddy. It is widely known that ContentID is open to abuse, and that it is indeed abused on the regular. However, too many stories about that abuse play far in the margins of what the average person could look at and recognize as a very real problem.This is not one of those stories.Instead, the story of how one music professor's upload to YouTube of 10 hours of pure white noise was flagged five times for copyright infringement (FIVE TIMES!) operates as though someone somewhere is trying to bring a reductio ad absurdum argument into physicality.

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.California's back again to try the same thing with net neutrality.Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

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The book Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, was first published in 2004. We've cited the book frequently around here, as it did a bang up job describing structural problems with our patent system (and the judicial review of patents). There were a few big points that it made about why our patent system was so fucked up, and a big one was the incentive structure that heavily incentivized approving patents rather than rejecting them.Specifically, there were two big ideas mentioned in the book about the US Patent & Trademark Office: (1) that because Congress forced the USPTO to fund itself from fees, it had the direct financial incentive to encourage more patent applications, and a good way to do that is to approve a lot more patents and (2) individual examiners were rated and reviewed based on productivity scores on how many patent applications they completed -- and it is much faster and less time consuming to approve a patent, rather than reject one. That's because once you approve a patent it's completed and gone from your desk (and into the productivity metrics as "completed"). But, if you "reject" a patent, it's not done. Even though the USPTO issues what it calls "Final Rejections" there's nothing final about it. The patent applicant can keep going back to the well over and over again, making minor tweaks on the application, requiring the examiner to go through it again. And each time they do, that hurts their productivity ratings. As an additional "bonus" -- the USPTO actually makes significantly more money when it grants a patent, because in addition to application fees, there are also issuance fees and renewal fees.In the years after that book came out, the USPTO actually seemed to pay attention. It changed how it measured examiners' work and, magically, fewer patents were approved. For a bit. When President Obama appointed David Kappos to head the Patent Office, he decided that the number one problem that the Patent Office had was its huge backlog of patent applications. And, there's no denying that was a problem -- but it was a problem the USPTO created itself by spending the previous dozen years or so agreeing to issue patents on all sorts of crazy things, leading to more applications and more filers hoping to get their own golden patent trolling lottery ticket. So, it was little surprise when soon after Kappos took over, the USPTO started approving patents much more quickly, and a study from 2013 found that (surprise, surprise) it did so by drastically lowering the standards for approving patents.Now there's a new study with even more empirical evidence showing how the Patent Office's entire structure is designed to incentivize the approval of crap patents (first highlighted by Tim Lee over at Ars Technica). The paper is by professors Michael Frakes and Melissa Wasserman, and they used FOIA (yay!) to get data on millions of patent applications between 1983 and 2010. The key point with that date range is that Congress only switch the USPTO over to funding itself off of fees in 1991 -- so the researchers could look at before and after data. It also allowed them to look at different cross sections within the data.So, for example, the researchers looked at whether or not there was evidence that the USPTO approved more patent applications when there was a big backlog. The answer: hell yes!

As more than a few folks have noted, many opponents of net neutrality (from FCC boss Ajit Pai to Mark Cuban) are following blind ideology. Many of them quite honestly believe that no regulation can ever be good, and that government is absolutely never capable of doing the right thing. That kind of simplicity may feel good as you navigate a complicated world, but it's intellectually lazy. As a result, the decision to use net neutrality rules as an imperfect but necessary stopgap (until we can reduce corruption and drive more competition into the sector) simply befuddles them.Of course this kind of blind ideology is particularly handy when you don't actually know how modern broadband markets or net neutrality even work, but your gut just tells you why the whole nefarious affair is simply bad. That's why you'll see folks like Ted Cruz consistently doubling down on bizarre, misleading claims based on repeatedly debunked falsehoods. Needless to say, this sort of lazy thinking is not particularly productive. Especially when you're a member of the same government purportedly tasked with analyzing real-world data, listening to constituent concerns, and actively tasked with making things better.Case in point: one sixteen-year-old Maine high school student recently wrote to Maine Governor Paul LePage, clearly worried about the impact the broadband industry's attack on net neutrality will have on her ability to freely access information online. Camden Hills Regional High School sophomore Hope Osgood actually took the time to write her governor, expressing concern about how the repeal could pose problems for free speech, competition, and the health of information exchange:

Free speech isn't free, people trying to stifle your free speech will often remind you. It's dumb enough when it's just your fellow man. It's way worse when it's your elected representative. (via PrawfsBlog)

After following the saga of what seemed like a truly misguided lawsuit brought by the San Diego Comic-Con against the company putting on the Salt Lake ComiCon, the whole thing culminated in the SDCC getting a win in the courtroom. One of the reasons this verdict threw many, including this writer, for a loop is that the defendant in the case made the argument that the SDCC had allowed the term "comic con" to become generic, an argument buttressed by the reality of there being roughly a zillion comic conventions using the term across America. Despite the SLCC's public discussions about appealing the decision and the fact that proceedings are already underway to cancel the SDCC's trademark entirely, much of the media speculation centered around what those zillion other conventions would do in reaction to the verdict.It was a question that seemingly made sense, but the actual reaction by at least some conventions should have been plainly predictable. And, indeed, now there are some conventions willing to come out and publicly say they aren't going to change a damned thing based on this one verdict.

One of the topics we've talked about longer than any other topic on Techdirt is the problems with basically all electronic voting systems out there. Remember the good old days of Diebold, the well known voting machine maker? We wrote dozens of stories about its insecure machines starting back in 2003 and continued to write about the problems of electronic voting machines for years and years and years. We've gone through four Presidential elections since then and lots and lots of other elections -- and while the security on e-voting machines has improved, it hasn't improved that much and still is subject to all sorts of risks and questions. And those questions only serve to make people question the legitimacy of election results.And, for all those years, it appeared that basically no one in Congress seemed to have any interest in actually doing anything. Until now. A new bipartisan bill has been introduced, called the Secure Elections Act, that would actually target insecure e-voting machines. The ideas in the bill are not revolutionary -- they're just what almost all computer security professionals have been calling for since we first started writing about e-voting machines all those many years ago, namely:

The DHS has provided the public with a Privacy Impact Assessment (PIA) on its use of license plate readers (LPRs). What the document shows is the DHS's hasty abandonment of plans for a national license plate database had little impact on its ability to create a replacement national license plate database. The document deals with border areas primarily, but that shouldn't lead inland drivers to believe they won't be swept up in the collection.The DHS has multiple partners in its license plate gathering efforts, with the foremost beneficiary being the DEA, as Papers, Please! Reports:

We've already noted that the best route for killing the FCC's recent attack on net neutrality rests with the courts. Once the repeal hits the Federal Register in January or soon thereafter, competitors and consumer groups will be filing multiple lawsuits against the FCC. Those lawsuits will quite correctly note how the FCC ignored the public, relied on debunked lobbyist data, ignored the people who built the internet, and turned a blind eye to rampant fraud during the comment proceeding as it tried to rush through what may just be the least popular tech policy decision in a generation.The hope will be to highlight that the FCC engaged in "arbitrary and capricious behavior" under the Telecommunications Act by reversing such a popular rule -- without proving that the broadband market had dramatically changed in just the last two years. They'll also try to claim that the FCC violated the Administrative Procedure Act, and even went so far as to block law enforcement investigations into numerous instances of comment fraud during the open comment period.There is, however, another less likely route toward stopping the FCC's repeal of net neutrality. Since the vote, net neutrality advocates have been trying to pressure lawmakers into using the Congressional Review Act to roll back the FCC's repeal. Under the CRA, Congress has the ability to dismantle a regulatory decision with a vote on the hill, provided it's done within 60 days of the original regulatory decision. It's how the Trump administration killed broadband privacy rules earlier this year that were passed under the Wheeler FCC, and would have taken effect back in March.Groups like Fight for the Future have been pushing hard to get enough Senators on board to reach the thirty-vote threshold needed to bring a broader CRA vote to the floor (last I checked, they had around 29 lawmakers on board). As such they've launched a new Vote For Net Neutrality effort intended to drum up public support for the CRA vote, while publicizing the countless Senators that are now-mindlessly beholden to every whim of entrenched telecom duopolists. The group suggests that while the effort may be somewhat Sisyphean, it remains possible:

In one respect at least, China's embrace of digital technology is far deeper and arguably more advanced than that of the West. Mobile phones are not only ubiquitous, but they are routinely used for just about every kind of daily transaction, especially for those involving digital payments. At the heart of that ecosystem sits Tencent's WeChat program, which has around a billion users in China. It has evolved from a simple chat application to a complete platform running hugely popular apps that are now an essential part of everyday life for most Chinese citizens. The centrality of WeChat makes the following move, reported here by the South China Morning Post, entirely logical:

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If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff's upcoming book Fire and Fury, in which former Trump "Chief Strategist" Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family -- including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was "treasonous." Trump quickly responded in kind with one of the most incredible statements you'll see (and that's saying something, given the speaker) which starts out thusly:

Under Section 706 of the Telecommunications Act, the FCC is required to consistently measure whether broadband is being deployed to all Americans uniformly and "in a reasonable and timely fashion." If the FCC finds that broadband industry is failing at this task (you may have noticed that it is), the agency is required by law to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment" and by "promoting competition in the telecommunications market."Of course given that the telecom sector is often the poster child for regulatory capture, this mandate often gets intentionally lost in the weeds. This is usually accomplished by simply pretending the lack of competition doesn't exist. Or worse, by meddling with broadband deployment metrics until the numbers show something decidedly different from the reality on the ground. It's a major reason why broadband ISPs (and the lawmakers who love them) whine incessantly every time we try to update the definition of broadband to a more reasonable and modern metric.As such, we engage in this endless tug of war depending on how grossly-beholden the current FCC regulators are to regional telecom duopolies. Regulators not blindly loyal to giant ISPs will usually try to raise the bar to match modern needs, as Tom Wheeler did when he bumped the standard definition of broadband to 25 Mbps down, 4 Mbps up back in 2015. Revolving door regulators in turn do everything in their power to manipulate or ignore real world data so that the industry's problems magically disappear.Case in point: the FCC is expected to vote in February on a new proposal that would dramatically weaken the standard definition of broadband. Under the current rules, you're not technically getting "broadband" if your connection in slower than 25 Mbps down, 4 Mbps up. Under Pai's new proposal, your address would be considered "served" and competitive if a wireless provider is capable of offering 10 Mbps down, 1 Mbps up to your area. While many people technically can get wireless at these speeds, rural availability and geography make true coverage highly inconsistent.The original notice of inquiry (pdf) proposed by the FCC tries to frame this manipulation of the data as a matter of efficiency, asking:

Happy New Year, readers! Here's to the first trademark thuggery of 2K18, propelled by U-Haul's mistaken belief that baseless legal threats are always successful and never result in large amounts of backlash.A little background: several years ago the US Patent and Trademark Office did Americans the disservice of granting two questionable trademarks to U-Haul for purely descriptive phrases: Moving Help and Moving Helpers. U-Haul believes no one should be able to use either of these two words in association with moving assistance services even though there's really no other way to succinctly describe offerings of companies in the moving help business.Years ago, it took a startup that matched up customers with moving helpers to court, claiming everything from trademark infringement to copyright infringement to misuse of trade secrets. It not only sued the startup, but also singled out the husband and wife behind it for separate lawsuits of their own.Since then, U-Haul has apparently targeted several websites for the use of these trademarked phrases, even if the sites made no attempt to lead users to believe U-Haul was the company behind the websites. In terms of customer confusion, it's far more likely customers would be baffled U-Haul "owns" the words "moving help" than by any site not affiliated with U-Haul offering assistance with moving. It's makes about as little sense as granting U-Haul exclusive ownership of the words "moving truck" -- something that, fortunately, has not actually happened.Based on a single courtroom win* and a bunch of successful legal threats, U-Haul has decided to toss its reputation into the internet dumpster. Not content to limit itself to shutting down every use of moving/help/helper it runs across, U-Haul is now in the business of taking jobs away from US military veterans.*More on that "win" below.Gregory Sledge owns Veterans Moving Help LLC, a service that puts homeowners and renters in touch with veterans, providing the former with moving help and the latter with a paycheck. Sledge went from being a homeless veteran to owning his own business, and is now helping out fellow veterans with $25/hour jobs.U-Haul doesn't care for this. Maybe it has nothing against helping veterans earn income, but that will be the end result of its actions if it succeeds. Sledge's business has a solid reputation and several satisfied customers. It also has a URL that U-Haul doesn't want it to have: veteransmovinghelp.com. Late last month, U-Haul sent a cease-and-desist letter [PDF] to Sledge, demanding he shut down his site and surrender the URL to U-Haul. In support of its arguments, it offers its single courtroom victory and a bunch of empty words about infringement.

Over the years, Techdirt has published quite a few stories about Vietnam's moves to stifle dissent online. On Christmas Day, Colonel General Nguyen Trong Nghia, deputy chairman of the General Political Department of the People's Army of Vietnam, revealed that the country had secretly created a massive Internet monitoring unit called "Force 47":

Just last month we joked about how confused the creator of PlayerUnknown's Battlegrounds, Brendan Greene, was when he claimed that there was no intellectual property for video games. That's completely wrong, and there are many, many cases to show that it's wrong. Yet... now there's a case that bizarrely, argues that video games don't get copyright (hat tip to Rick Sanders and Owen Barcala for flagging this one). The case is one that's been dragging through the courts for years, bouncing around, concerning publicity rights of former professional football players when used in EA games like Madden NFL.The latest issue involves EA asking for the latest iteration of the case to be dismissed based on another ruling concerning NCAA basketball players and their publicity rights. In that ruling from April of this year, the 9th Circuit ruled (among other things) that federal copyright preempted state-based publicity rights claims. I don't want to dig too deeply into what all of that means, but suffice it to say that under the 1976 Copyright Act, the law says that federal copyright law now trumps all state copyright or copyright-like laws, and you can't hide behind some state law when federal law should apply. Here, the court said that the state-based publicity rights claims were blocked because of that, as the only issue should be covered under federal copyright law, where they would fail.So, EA asked for this other case, filed by Michael Davis, to be dismissed, citing that ruling about preemption of publicity rights claims. But the district court judge, Richard Seeborg, has denied the motion, claiming that the ruling in that earlier case does not apply here. And he does so for... the most bizarre of reasons. Basically, he claims that large parts of video games don't get copyright... because they're interactive.

Facebook continues to increase its stranglehold on news delivery, reducing pipelines of info to a nonsensically-sorted stream for its billions of users. Despite the responsibility it bears to its users to keep this pipeline free of interference, Facebook is ingratiating itself with local governments by acting as a censor on their behalf.While Facebook has fought back against government overreach in the United States, it seems less willing to do so in other countries. The reporting tools it provides to users are abused by governments to stifle critics and control narratives. And that's on top of the direct line it opens to certain governments, which are used to expedite censorship. That's what's happening in Israel, as Glenn Greenwald reports:

Intel is in for a very challenging few weeks. Reports began to bubble forth this week suggesting that "nearly all" intel chipsets (and some chipsets from other vendors) have been plagued by a security vulnerability over the last decade that could impact millions upon millions of users. While the full details of the vulnerability have been largely been kept under secret embargo by the security community, the scale of the flaw appears to be monumental. From what's currently known, the vulnerability currently allows programs to gain access to the layout or contents of what previously was believed to be protected kernel memory.You know, the area where everything from passwords, login keys, and files cached from disk are presumably stored away from prying eyes. The problem appears to be unprecedented, and the entire security community is rushing to quickly push out updates for the problem:

Another yearly tradition is, after the new year, we try to take a look at some of the stats on traffic and commenters and such. I know many sites do this before the end of the year, but we're sort of a stickler for actually including the full year's data, so ours comes out sometime after the new year actually starts (and once I have time to really go through the data). For reference, you can see these stories from the past seven years as well: 2016, 2015, 2014, 2013, 2012, 2011 and 2010. As I've mentioned in the past, for comment data, we use our own internal logs. For traffic data, we're using Google Analytics, which... has its own problems -- and which I'm sure many people block. But as we're using it mainly for comparative purposes, it functions as a "good enough" tool for those purposes, even if it may not be entirely accurate.Every year it's fun to see where visitors are arriving from -- and this year Google says visitors showed up from 236 different countries (down three from last year). Since we've been doing this, US traffic has almost always been right around 67% of all our traffic, but this year it bumped up to 70.13%. The UK and Canada remain neck-and-neck and basically tied for second place, with the UK edging out Canada 5.9% to 5.8%. Australia, India, Germany, the Netherlands, France, Finland, and Sweden round out the top 10. The big movers this year were India passing Germany and Finland jumping into the top 10 (leapfrogging over Sweden) and pushing New Zealand out of the top 10.Going around the globe, after India, the Philippines, Singapore, South Korea and Japan round out the top 5 in Asia. The new entrant here is South Korea who had been much lower in the past. In Europe, we've already named the top 6 in the overall top 10 list, but if you're wondering whose next: it's Ireland, Norway, Denmark and Spain. Russia appears to have dropped off the list -- despite quite a few stories mentioning Russia. Hmmm. In South America, Brazil represents exactly 50% of our traffic from that continent, followed by Argentina at 15%, Chile and Colombia each with 8%, and Peru at 7%. In Africa, last year we noted that in previous years most of our African traffic came from South Africa, with negligible amounts coming from elsewhere -- though we started to see traffic from Kenya and Nigeria last year. This year, South Africa still leads, but with just 40% of the African traffic. Nigeria has jumped up in a big way with 23%, followed by Kenya (7%), Egypt (5%), and Ghana (4%).There's always some fun to explore down at the bottom of the list -- and this year we see things like one single visitor from North Korea -- which comes after two years of zero North Korean visits. Perhaps the country's internet is opening up after all (that's a joke for people who take things too literally).As always, the country with the longest average duration visit is Gibraltar, and every year, PaulT takes credit for this as he should. Surprisingly, Bangladesh comes in second for duration on the site, and that's with a decent amount of traffic (over 10,000 visitors). If we're looking at larger countries with significant traffic, India, New Zealand and Canada seem to spend more time on the site than visitors from other countries.As has been the case for a while, Chrome remains the most popular browser by far for visiting the site. While last year it broke 50% of all visits, this year it dropped to 48%. Safari is a strong second at 24%. Firefox checks in at 12%. Microsoft's Internet Explorer (4%) and Edge (2%) are barely noticeable -- though they still beat Opera at 0.6%. Windows is the top operating system at 41%, Android is second at 23%. iOS is (again) close with Android at 21%. Macs are 10% and Linux is 3%. Chrome OS shows up at 0.5%. And a miraculous 0.01% of you visited Techdirt on an Xbox. Really: you don't need to do that. I'm happy to see that I actually don't have very good data on what ISPs most of you are using, as it's showing up as "not set" for a bunch of folks, and the numbers on those who are revealing what ISP they're using aren't really big enough to determine very much. Hopefully, this means many of you are practicing good internet hygiene in cloaking information about your connection and what sites you're visiting.For the past few years we've been posting the following chart of where our traffic comes from:As I said last year, we pride ourselves on the fact that so many of our visitors come directly to the site, rather than relying on social media or search, like so many other sites do. Some argue that this means we're leaving traffic on the table by not focusing on pumping up social and search traffic. We like to believe we're building a more loyal audience who visits us because they like what we do -- and it also means we don't have to freak out every time a platform like Google or Facebook changes an algorithm. It's nice to see that our percentage of direct traffic has gone up this year, from 38.5% last year to 42.5% this year. Search traffic declined from 31.3% to 26.5%, while social went up a small amount from 17% to 18.1%.For the sources that do send us traffic, however, Reddit leads the way (yet again), followed by Twitter and Facebook and Hacker News. Other specific sites that have sent us a decent amount of traffic include Instapundit, Drudge Report (though I think that was all from one story) and Popehat. For search traffic, most of the terms that sent a lot of traffic tended to be variation on "techdirt" -- showing how many people use the search bar for navigation these days. Two amusing search terms that ranked fairly high: "can you plagiarize yourself" and "louie louie lyrics." If you're wondering why we got a bunch of search traffic on that one, it's because of this 2015 story we did about the FBI spending years researching the lyrics trying to figure out what they mean and if they're bad -- before realizing that the Kingsmen must have submitted the lyrics to the Copyright Office.And, with that, we move onto the big lists:Top Ten Stories, by unique pageviews, on Techdirt for 2017:

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Social media platforms doing business in Germany can look forward to a year filled with fines of up to €50m. Germany's hate speech law went into effect on January 1st, providing the country with a new revenue stream it can tap into for the rest of whatever.

If you listen to Comcast , AT&T, Verizon and their army of paid allies, nothing bad will happen now that the FCC has voted to kill net neutrality protections. In fact, Comcast argues, without government oversight of an uncompetitive market, investment and jobs will soon be miraculously springing forth from the sidewalks. It will, the industry argues, be impossible to even measure the incredible innovation that will be created by letting entrenched ISPs (and their natural monopoly over the broadband last mile) run roughshod over the backs of American consumers and smaller competitors.But even among folks that support net neutrality, there's pretty clearly a contingent that still believes the damage caused by the repeal of the rules will somehow be subtle. Because the net neutrality debate in recent years wandered into more nuanced and quirky areas like interconnection and zero rating, they believe the ultimate impact of the repeal will likely be modest. After all, these harms (like Comcast exempting its own content from usage caps, or Verizon covertly choking interconnection points) were murky and out of the intellectual or technical reach of many Luddite consumers.The good folks at Boing Boing, for example, warn readers that the impact of the death of net neutrality will somehow be "hard to spot." Julian Sanchez similarly shared his concerns that net neutrality advocates are harming the overall goal of the movement by warning of dire outcomes in the years to come. Actual harms, Sanchez insists, will be "pretty much invisible":

Something with a hint of retaliatory ugliness has reared its head in Laredo, Texas. Citizen journalist Priscilla Villarreal has been arrested for releasing information Texas law enforcement meant to keep secret. Villarreal -- a.k.a. Lagordiloca -- has been an unofficial fixture of Laredo nightlife for a few years now, cruising the town after dark to livestream footage of newsworthy events. She's well-known to local law enforcement, though not exactly well-liked, which may have something to do with her recent legal troubles.

There may be a significant shift in police interrogation methods over the next several years. The Marshall Project reports one of the nation's largest police consulting firms is abandoning a technique that has been used by a majority of law enforcement agencies over the last six decades. It's called the Reid Technique, and it's been linked to a large number of false confessions. But after fifty-plus years of religious reliance on the technique, the consulting firm says it's no longer going to be training officers to deploy it.

For many years now, during the first week of January, we write a post about Public Domain Day. That's the day -- January 1st -- where works that have reached the statutory limit reach the public domain. The Public Domain Review has an excellent collection of the Class of 2018 -- showing what works entered the public domain this week in the "life plus 50" copyright countries (Canada, New Zealand, and many countries in Asia and Africa) and the "life plus 70" copyright countries (most of the EU, Brazil, Israel, Russia, Turkey, Nigeria). For life plus 70 countries, the works of Aleister Crowley and Winston Churchill are now in the public domain. For the life plus 50 countries, Rene Magritte's paintings, the song compositions of Woody Guthrie and Otis Redding, and the writings of Jean Toomer are now in the public domain -- among many others.Except, as we note each and every year, there is no such "graduating class" in the US. Because, thanks to Disney's heavy lobbying, copyright keeps getting extended and extended and extended. If you're interested, the Center for the Study of the Public Domain at Duke University has also put together its depressing annual "What Could Have Entered the Public Domain..." list for the US, if the law had remained as it was prior to 1978, when the maximum length of copyright was 56 years. Under that setup, Josepher Heller's Catch-22, Salinger's Franny & Zooey and Robert Heinlein's Stranger in a Strange Land all would have entered the public domain. Grok that. Movies including Breakfast at Tiffany's, West Side Story, and The Guns of Navarone all would have entered the public domain as well. And, of course, a ton of music:

Happy new year, podcast listeners! We'll be back with our regular weekly episodes starting next Tuesday, but this week it's time to look back at 2017 and highlight some of the most interesting episodes that you might have missed.First, we head all the way back to last January and our second episode of the year: the CES 2017 post-mortem, our second look at the most interesting things from the Consumer Electronics Show. Mike is getting ready to head back to CES again this month, so we'll have another installment in this now-regular feature coming very soon:It will surprise nobody that, later that month, politics took center stage for a few episodes. We had a discussion about how people can change government, and then dug into some details with a look at the new FCC, and the dangers ahead for net neutrality (it is no great miracle that many of our warnings were correct):Fast-forward to March, and you may remember the massive Amazon Web Services outage that crippled huge portions of the internet and turned out to have been caused by a single typo. This prompted an episode all about how we got to this dangerously delicate situation online, and what to do about it:Also in March, we took a look at another form of utter dependency on monolithic corporations that threatens the future of technology — DRM, and the threat it represents to the very concept of ownership:We kicked off the month of May with a discussion about the surveillance state, followed by a closer look at the history of the crypto-wars:After that, it was our most popular episode of the year by a wide margin, in which we sat down with Cory Doctorow to discuss his compelling new book Walkaway, among many other things:May was also a time of widespread viral mourning for the supposedly "dead" MP3 file format. Somewhat irritated by the misinformation and misunderstandings, we dedicated an episode to putting that idea to rest as best we could:Fast-forward again to August, and we celebrated Techdirt's 20th birthday with an episode all about the history of the blog:In October, politics and copyright converged in the legal mess around Donald Trump's appearances on the Howard Stern show, and we were joined by Cathy Gellis to discuss what the situation really was:Finally, almost a full year after our initial conversation about the new FCC, we were joined by former agency chair Tom Wheeler himself to discuss just what was happening under Ajit Pai's purview:And that's a wrap on the highlights of 2017! Of course, there were plenty more episodes, so be sure to check out the full list and subscribe for more using the links below. We'll be back with a brand new episode next week!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The Sixth Circuit Appeals Court has now had the dubious privilege of hosting a legal challenge by Juggalos (as fans of the Insane Clown Posse are known). The case traces back to 2014, following the FBI's 2011 designation of Juggalos as a gang in its National Gang Threat Assessment report.This posed problems for Juggalos, thanks to local law enforcement treating fans of a band as though they were part of a crime syndicate. There appeared to be some actual injury (to use the legalese) suffered by Juggalos, who detailed additional hassling by The Man in their ACLU-aided lawsuit against the FBI.

Because prudence is always in short supply but stupid is the world's foremost renewable resource, an ousted director of a Tennessee culinary school is appealing the dismissal of a defamation suit he brought against his replacement for things a journalist said.The original lawsuit didn't live long, fortunately. Heavily quoting a Tennessean article by journalist Jim Myers, Tom Loftis -- the former head of the culinary school at the Nashville university -- sued Randy Rayburn (Loftis' replacement) over things Myers said.Loftis apparently expected his status as a private person (given more reputational protection by courts than public figures) to overcome the deficiencies of his lawsuit. But the deficiencies won and Loftis lost, having failed to show how words written by Jim Myers were somehow libelous statements issued directly by Randy Rayburn.Loftis should have quit while he was behind. He's already on the hook for the legal fees racked up by Rayburn's defense at this point, but apparently feels the best use of a university severance package is as an accelerant for the fire consuming what's left of his reputation.Daniel Horwitz, who defended Rayburn against Loftis' first legal leap of faith, is back on board defending against the appeal. According to Loftis, the lower court erred by refusing to read his defamation lawsuit the way Loftis would prefer it to be read: as a false light invasion of privacy lawsuit.There are shades of difference, but the latter tort allows negative impressions to be actionable, rather than relying on actual defamatory statements made by the defendant. This is about the only choice Loftis has (other than walking away from this) considering there's no indication the statements he's suing about are anything other than Jim Myers' (not Randy Rayburn's) opinions.It won't make any difference. The allegations remain unchanged. Loftis is still trying to twist the words of a journalist into statements made by his replacement. But nowhere in Myers' article on the cooking school will you find a direct quote of Randy Rayburn. For that matter, you'll find almost nothing in the piece that indicates the statements Loftis is suing over are anything more than Myers' take on the Nashville culinary scene. This is hammered home in Rayburn's reply brief [PDF], something neither he nor his representation probably thought they'd ever have to do.

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Eugene Volokh has an incredible -- and incredibly disturbing -- story about how Jia Yueting, a Chinese billionaire, appears to have convinced a Washington state court to issue an unconstitutional gag order against a critic who lives in Washington state. Jia is famous for his company LeEco in China, as well as his attempt to create an electric car giant competitor to Tesla in the US called Faraday Future. Almost exactly a year ago, we wrote about how Faraday Future was flailing with a series of incredible stories leaking out of the company. A large number of top execs were fleeing the company and there were reports of questionable activities, including Jia demanding that Faraday Future employees design a car for LeEco, without payment or credit. In the past year, it does not appear that things have gotten much better for Jia, and he was just ordered to return to China to deal with debts that appear to be piling up.

What do you do when you're faced by an existential, evolutionary shift that threatens your entire, overly-comfortable industry? Why you raise rates, of course! Comcast is one of six cable providers who have informed customers that they've raised the rates for the new year, despite the record-setting shift toward cord cutting during 2017. Everything Comcast offers is seeing price hikes of some kind, ranging from increases in the company's traditional channel bundles, a price increase for Comcast's standalone streaming platform, and even the fee charged for renting a modem (which is now $11 per month).Comcast's even jacking up the obnoxious fees it's currently facing several lawsuits over. That includes the "Broadcast TV fee," which is simply a part of the cost of doing business (paying for content) buried below the line, letting Comcast advertise one rate -- then sock consumers with another price entirely once the bill comes due. That fee, which Comcast has insisted is just its way of "being transparent," was just $1.50 when introduced in 2013 -- and will be bumped to $8 per month in the new year:With cord cutting setting records, why doesn't Comcast feel the need to actually adapt to changing markets? It doesn't have to. The company is securing a bigger monopoly over broadband in a growing number of markets thanks to telcos that no longer think it's worth it to upgrade aging DSL lines.That means there are more markets than ever where if you want a decent broadband connection that meets the FCC's 25 Mbps definition of broadband, Comcast is your only option. As a result, Comcast knows that it can simply jack up the cost of broadband as well to counter any TV revenue losses without being punished by the pesky nuisance of competition. This, of course, includes Comcast's implementation of arbitrary and unnecessary usage caps and overage fees, which have proven a handy weapon in hamstringing streaming alternatives. It doesn't take an economics degree to know that when you're the only provider in a market for a product that many feel is a necessity, that prices will rise quickly.Publicly, Comcast and other cable providers will lay the blame squarely at the feet of broadcasters, who consistently demand higher and higher rates for the same product. But that ignores the fact that Comcast is a broadcaster (NBC Universal, several regional sports networks), and is jacking up pricing on numerous services, hardware rental costs, and other products that have nothing to do with the cost of programming.Granted, with the Trump administration laying the groundwork for gutting federal and state oversight of an already quite dysfunctional and broken cable and broadband market, you can expect a lot more where this came from over the next few years.

This is apparently the price we pay to live in the Land of the Free:

It's that time again! In lieu of the top comments of the week, we're using this last Sunday of the year to look at the comments that racked up the most funny and insightful votes in all of 2017. We'll be highlighting the top three comments in each category, and noting where they ranked in terms of combined votes as well. (For those of you who are still interested in this week's winners, here's first and second place for insightful, and first and second place for funny.)The Most Insightful Comments Of The YearIn the last week of January, we were still reeling from the inauguration and choking on the words "President Trump" when the cheeto-in-chief hit us with another gut-punch: the disgusting and transparently racist Muslim travel ban, enacted via a sloppy and ill-fated executive order. Mike, like most decent people with any kind of platform, felt compelled to speak out, and his post about "Our Humanity" became (unsurprisingly) a busy discussion which swelled to nearly 400 comments in less than a month, and yielded both of our 2017 winners on the insightful side.In first place, it's one of our most prolific commenters and frequent winners: Roger Strong. Roger got in with the first comment, and used it well to deliver a simple but highly appropriate quote:

Five Years AgoThis week in 2012, we were a bit surprised and confused to see pirated movies being shared from Hollywood IP addresses — and, it soon turned out, from all major record labels, and several government agencies including the DOJ. Whether this was just amateur honeypotting was unclear, but whatever the case, Hollywood still broke records at the box office that year. Meanwhile, the Senate was debating the extension of FISA — which means they were rejecting amendments that could improve it and passing it with all its problems intact.Ten Years AgoThis week in 2007, we took a look at Hollywood's ongoing crusade to convince ISPs around the world to block sites it doesn't like, and also at how the industry's supposed challenges with digitally archiving films are caused by their obsession with ownership and copyright, not technological limitations. The MPAA, at least, realized (after years of complaints) that elaborately DRM-laden DVD screeners for the Oscars are not worth the effort. Meanwhile, as the EU began looking to destroy fashion innovation by enforcing fashion copyrights, we were even more distressed to hear copyright mentioned in the same breath as the great pyramids of Egypt and the works of Michelangelo.Fifteen Years AgoThis week in 2002, people were telling the Copyright Office just what they think about the terrible parts of the DMCA, as Declan McCullough was treading the line of fearmongering but still providing a good look at some of the injustices the law enables. Cablevision's Optimum Online broadband was threatening to ban customers who use file trading services (regardless of the purpose of their use), and Hollywood was still obsessed with DRM — and this is an industry smart enough to fire the guy who convinced them selling DVDs might be a good idea!

Since 2008, my final post of the year is one where I try to reflect on the year coming to a close -- with a general focus on optimism. That is, the usual goal of these posts is to take a step back from the day to day grind and look at the larger picture to see what good things have happened, that often get missed in the daily struggle. Techdirt has now reached its 20th birthday, and we've now been doing these posts for nine years. The first one was a response to a few comments I'd received, asking how it was possible to write about all the stuff we write about without getting depressed -- which made me realize that I was actually incredibly optimistic about the overall future. The things we write about are frustrating and annoying not because we're pessimistic about the world, but because we're optimistic. The frustration is a response to efforts to slow down or hinder all the good opportunities, and the progress and innovation we see. If you're curious, here are the past New Year's posts: