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A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to "discuss" how to deal with the imaginary problem of "political bias" on social media platforms actually represented a serious First Amendment problem. The government simply isn't allowed to pressure companies into any sort of compelled speech, and yet it appears that's exactly what these law enforcement officials were trying to do.Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

So we've pretty well established that somebody flooded the FCC's website with bogus comments during the agency's unpopular attack on net neutrality last year. Many of these comments were made using lifted identities (like Senators Jeff Merkley and Pat Toomey, or my own). Other comments were made using the identities of dead people. Many of the comments were made by a bot that pulled some of these fake identities in alphabetical order from a hacked database of some kind. Exactly 444,938 of those comments were made using Russian e-mail addresses.The general consensus among activists and journalists is that it was broadband providers or a partisan advocacy group linked to broadband providers, though the FCC's total refusal to aid investigations have made proving this rather difficult. This week, the New York Times sued the FCC for its ongoing refusal to adequately respond to FOIA requests regarding the incident. In an interesting twist however, the Times seems more interested in the Russian angle of the story than the wholesale fraud that occurred:

The DHS says assaults on CBP and Border Patrol officers have been steadily increasing since 2015, with a 46.3% surge in violence against officers in 2017 alone. Sure, it fits the current narrative that undocumented immigrants are inherently dangerous. But is it true? Not even remotely.The CBP and Border Patrol are using new math to report assaults, allowing the DHS to portray patrolling the border as far more dangerous than it actually is. The Intercept exposed the bogus math earlier this year, thanks to a CBP official's inadvertently frank admission the numbers were incredibly inflated.

This week, both our winning comments on the insightful side come in response to Ajit Pai's whining about California's net neutrality effort — and, more specifically, in response to a commenter making the silly blanket statement that all regulation fails and governments cannot do anything right. In first place, ShadowNinja with some counterexamples:

Five Years AgoThis week in 2013, we learned that in addition to communications the NSA was keeping millions of credit card transaction records, and then we finally got a look at the secrett FISA court ruling that permitted bulk phone data collection, in which it was revealed that Verizon and AT&T never fought back. The court also made the untrue claim that all of congress already knew all the details, and of course we wondered why the ruling was ever secret to begin with. Meanwhile, Michael Hayden was making some crazy claims about terrorists using Gmail and the US's right to spy on the internet it invented, while also making some childish prognostications about Ed Snowden's likely future of alcoholism — though other defenders of the agency were sticking to the same tired talking points, plus the new euphemism that Snowden's activities were "masked by his job duties".Ten Years AgoThis week in 2008, Apple made the decision to block a competitive podcast app from the App Store, leading to significant backlash, while a court in Germany was getting in on similar action in its own way by banning VOIP on the iPhone at the behest of T-Mobile. NBC was bragging about its ability to lock down online Olympic footage, the movie industry was making yet another attempt to build the mythical "good" DRM, and the cops were continuing to bring in the RIAA to help with investigations where it would clearly be biased. There was a glimmer of light for online entertainment though: this was also the week that BandCamp launched, and its easy-to-build pages quickly became one of the best tools for musicians to distribute their work online.Fifteen Years AgoThis week in 2003, as file-sharers were going deeper underground, a study showed that most online copies of movies were coming from industry insiders — which perhaps explains the industry's insane plan for self-destructing DVDs. While RIAA head Carey Sherman was struggling to defend the agency's lawsuit strategy (and totally missing the point), the Senate was gearing up for hearings over the lawsuits, and considering a bill to close the DMCA's special subpoena powers — also a major issue in the ongoing court battle between the RIAA and Verizon.

Strangest trademark story of the month? Strangest trademark story of the month! As you may have heard, back in March, a former Russian spy who had been a double agent for the UK, Sergei Skirpal (and his daughter), was poisoned in the UK with a nerve agent. Earlier this month, UK officials moved to charge two Russians with attempted murder over that event. They named Alexander Petrov and Ruslan Boshirov as being behind the plot. Along with the announcement, the Crown Prosecution Service admitted that it will not seek to extradite the men from Russia, as Russia will not extradite its own nationals.Somewhat bizarrely, the two men (who many believe are not actually named Petrov and Boshirov) then decided to go on Russian TV to profess their innocence, claiming, improbably, that they were just tourists with no connections to Russian intelligence who had really wanted to go visit a cathedral in Salisbury where the attacks took place. A somewhat fascinating Bellingcat investigation has torn to shreds most of their story and suggested pretty strong evidence connecting them to the Russian government (and that their names are fake).That TV interview has been mocked and described as a farce, but as the NY Times described, it may have been intentionally so, with the hope of mocking the west. And, that leads us to a story that's more normal for us around here: one about trademarks. Apparently, a Russian company, "Golden Brand," decided to apply for a trademark in the two suspects' "names" and (har har) have that trademark cover "production of chemical compounds and perfume." And the idea is that the trademark will then be handed over to the guys to do what they want with it. According to the Moscow Times:

The Long Beach Police Department has bravely struck a blow against police accountability. An investigation by Al Jazeera uncovered use of self-deleting messaging by the department.

Sometimes the best move is to let something go. Kids will be kids, as the saying go. Thing is, kids may also be litigants, especially if you think your school administration position grants you the power to violate students' rights.

Way back when the GDPR was still under consideration, we were among those who warned that, in the name of "protecting privacy," Europe was about to create a tool for massive censorship by encapsulating a massive "right to be forgotten." As we noted at the time, a big part of the problem was that the GDPR was written by privacy and data protection experts, with little to no consideration given to free speech experts, who could have told the drafters how "right to be forgotten" rules would likely be abused. The basic idea behind them seems sound -- allowing people to delete data from services they no longer use -- but the ability to turn that into a tool to take down public information is a real problem.And, now that the GDPR is official, we're already seeing it in practice. Aaron Greenspan, from Plainsite -- a site that hosts court dockets -- recently noted that he had received a RTBF demand from a guy named Michael Francois Bujaldon, who was seeking to disappear a docket involving a case in which Bujualdon was sued for real estate and securities fraud. The complaint against Bujaldon is fairly damning, and while Bujaldon tried to get the case dismissed, the court was not at all impressed. The current docket suggests that the parties are attempting to work out a settlement, but having yourself be a defendant accused of real estate and securities fraud can't be good for the old reputation.Never fear, however, for the GDPR has a Right to be Forgotten in it, and Bujaldon is apparently using it to delete his own name from the dockets for which he is a defendant:

Will we ever see a complete postmortem of the damage done by leaked NSA software exploits? All signs point to "no."

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Well, here's yet another crazy story of copyright interfering with art (ht to Jean for sending this over). Buckle in, because there's a lot to explain, starting with some truly astounding art, followed by more truly astounding art, with an extra helping of even more astounding art... and then an apparent claim of copyright infringement. What follows is truly amazing work by artist CJ Hendry. Most of this is taken from a long Instagram story in which she documented this entire process, so forgive the image heavy explanation here, but it helps to explain what happened -- so I'll include some explanatory screenshots.She started with a bunch of Andy Warhol's famous Polaroids, cutting them out of the book of such photographs, and then sketched amazingly accurate renditions of them.That, alone was incredibly impressive, but then she took it much further. She took her own drawings and crumpled up the papers:... and then drew new images of her crumpled up drawings of the original polaroids:Then, she made t-shirts featuring her drawings of the crumpled up drawings that she made replicating Andy Warhol's Polaroids:If you're not in awe already, you should be. But Hendry kept going. Since this was all an homage to Andy Warhol, she took the homage even further and made up her own Campbell's style soup labels, put them on cans and put the t-shirts into the cans.She was intending to sell each of the t-shirts in the cans, which would have been amazing... but then, copyright (maybe?) apparently got in the way.It's not entirely clear who stepped in -- Hendry insists it was not the Warhol Foundation -- but suddenly that the sale has been cancelled:If you can't read that, it says:

We've made it pretty clear by now that U.S. broadband policy generally stinks because the nation's biggest broadband providers (and the politicians who adore their campaign contributions) want to keep the U.S. broadband market as it is: uncompetitive, expensive, and broken. There are myriad ways they accomplish this, from quite literally writing and lobbying for the passage of protectionist state laws, to convincing regulators like Ajit Pai to turn a blind eye to pretty much all of the worst habits of entrenched telecom mono/duopolies.But at the heart of the problem sits the flawed form 477 broadband mapping data the FCC collects from broadband providers. With a vested interest in portraying a healthy market, ISPs have long submitted data that over-states broadband speed and availability. And, like a loyal servant to the industry it's supposed to hold accountable, the FCC (under both parties) rarely does much to actually verify that this data is accurate. This bad data then goes on to inform bad FCC policy.Case in point: the GAO released a study last week noting that the FCC routinely overstates broadband availability in tribal areas, which in turn results in policy that doesn't do a good job fixing the problem. As the report (pdf) notes, the flimsy, unverified data the FCC collects is only compounded by odd FCC methodology decisions, like declaring an entire area "served" with broadband if just one home in a census tract has service:

Ron Wyden is writing letters again. This time he wants to know why the federal government isn't protecting the personal devices and email accounts used by federal officials. Attacks by state-sponsored hackers are never going to go away, and Wyden feels this lack of protection will make personal devices easy targets. From Wyden's letter [PDF] to Senate majority leaders:

Remember that quaint mantra from a few years back, "You can't compete with free!" The misguided idea behind the quip was that if the public could get your product for free, typically in digital form via the internet, then you were sunk. Dunzo. Kaput. The problem with this thinking is that selling a product has always had to be about more than an infinitely reproducable digital file, making any claim that "you can't compete with free" exactly two words too long. And, of course, we've seen so many counterexamples in which people and companies very much compete with free, and in fact make a killing at it, so as to make this theory essentially dead. We recently touted the fact that Nintendo is barely able to keep its Nintendo NES Mini in stock as perhaps the ultimate example of this, given how pretty much every computer and smartphone can get all those same games and functions via emulators.Well, it looks like others noticed this success Nintendo has had competing with free and have decided that they can do so as well. Sony has decided to jump into the retro console market with its Playstation Classic console, despite that it too has emulators available roughly everywhere.

If there's something our nation's courts do well, it's make life as difficult as possible for anyone caught in its gears. The premise of "innocent until proven guilty" has been made a mockery by prosecutors who stack charges until defendants give up and give in. Plea deals end more than 90% of criminal cases before they ever go to trial.Criminal infractions subject only to tickets and fines become jailable offenses as well, once the courts are finished piling on. A $50 parking ticket can balloon into hundreds or thousands of dollars in fees and the routine issuance of bench warrants assures some who have committed moving violations spend a few hours or days in jail as part of the process.The New Jersey Judicial Commission recognizes the problem. It's having trouble working towards a solution, but at least it's trying. Much like anywhere else in the country, depriving drivers of their licenses in lieu of collected fees doesn't do anything to help the state collect fines. People with suspended licenses either can't get to work or take a calculated risk to ensure their income flow doesn't come to a halt. With automatic license plate readers flagging drivers with suspended licenses, cops are finding it easier to turn small driving infractions into life-crippling situations.The Judicial Commission's report [PDF] makes it clear how devastating this can be for drivers unable to pay steadily-increasing fees. (h/t The Newspaper)

For those not familiar with the Star Trek: the Next Generation canon, in the episode "Hero Worship" the Enterprise receives a distress call from somewhere deep in space, and in responding discovers a heavily-damaged ship with just one survivor. While the Enterprise crew is investigating what happened to the ship, they soon realize that they are being pounded by energy waves, and eventually it dawns on them that these waves could eventually destroy their ship like they apparently did the other. As the Enterprise tries to channel more and more power to its shields to protect itself from the battering, the waves hitting the ship become more and more violent. Until finally – spoiler alert! (although let's be honest: the episode basically telegraphs that this will be the solution) – Commander Data realizes that the waves are reflecting back the energy the Enterprise is expending, and that the solution is to cut the power or else be destroyed by the slapback.This is a sci fi story illustrating a phenomenon with which we're all familiar. It's that basic principle: to every action there is an equal and opposite reaction. And that's what's happening as people demand more censorship from platforms like Twitter, and then get more outraged when platforms have inevitably censored things they like. Of course increased calls to remove content will inevitably result in increased calls not to. And of course platforms' efforts to comply with all these competing demands will just make the platform more unusable until, like the wrecked ship, it will have torn itself apart to the point that it's hardly recognizable.As the Enterprise crew learned, solutions don't always require figuring out ways to expend more energy. Sometimes they involve disengaging from a struggle that can never be won and finding new ways to view the problem. And when it comes to platform moderation, that same lesson seems relevant here.Because just as the challenge facing the Enterprise was not actually to overpower the energy rocking it, that is not really the platforms' challenge either. The essential, and much less pugilistic, challenge they face is to figure out how to successfully facilitate the exchange of staggering amounts of expression between an unprecedented number of people. Content moderation is but one tool, but it's not the only one available, nor is it the best one for achieving that ultimate goal. Platforms shouldn't need to completely control the user experience; instead they need to deliver the control users need to optimize it for themselves. Being fixated only on the former at the expense of the latter is doomed to be no more successful than when the Enterprise was focused on doing nothing but feeding more power to the shields. In the end it wouldn't have saved the ship, because ultimately the solution it needed was something far less antagonistic. And the same is just as true for platforms.Internet platforms of course are not fictional starships. And unlike fictional starships they can't depend on artificial intelligence to set them on the right path. Theirs is a very human exercise, that first requires understanding the human beings who use their systems and then ensuring that the interfaces of these systems are built in accordance with how those users expect to use them, and need to.Which itself is a lesson the story teaches. The survivor of that wrecked ship happened to have been a child, who was worried that it was he who had accidentally destroyed his ship when he stumbled during a wave attack and hit a computer console during his fall. The Enterprise crew assured him there was nothing he could have done to hurt anything. The engineers who had designed those consoles understood what their users needed from their interfaces, including the protection the interfaces needed to afford, and the enormous stakes if users didn't get it. And that's what the people building computer systems always need to do, no matter what the century.

Back in the spring of 2013, just a month or so before Ed Snowden started revealing all sorts of surveillance shenanigans, there was another important revelation: the Obama DOJ had gone way overboard in spying on journalists, including grabbing the phone records of some AP reporters (without letting them know) and, even worse, telling a court that a Fox News reporter was a "co-conspirator" with a leaker in order to get his phone and email records.The Obama administration's war on the press has been well documented on this site, with many in the press highlighting how he was the most secretive -- not to mention the most aggressive in abusing the Espionage Act to target leakers and journalists more times than every other President combined prior to him. Once those two stories above came out, the DOJ initially promised to create new guidelines, though, when those guidelines came out, they seemed pretty limited and left a lot of avenues open for the government to spy on journalists, including using National Security Letters -- the meaningless "letters" the FBI/DOJ often hands out like post-it notes, demanding all sorts of info with zero due process, and frequently with an indefinite gag order.Back in 2015, we noted that the Freedom of the Press Foundation was suing the DOJ demanding the details of the rules used around those national security letters, given that the DOJ didn't want to release them. Earlier this week, the Freedom of the Press Foundation stated that (thanks to the lawsuit), the DOJ has now revealed its rules for seeking FISA Court orders spying on journalists, which are different than its rules for collecting general information from journalists (and different than the rules for the FBI to use NSLs, which is still secret).As Trevor Timm, Freedom of the Press's executive director, points out, the rules revealed here are "much less stringent" than the (already not that stringent) rules the DOJ came out with in 2015. Basically, the rules state that if the DOJ wants to get a FISC order on a journalist... it has to get approval from the Attorney General or Deputy Attorney General. That's much less than the regular DOJ guidelines that involve a multi-part test to make sure that surveillance of the journalist is actually critical to the investigation and not simply a shortcut to info (or, worse, a way to harm journalistic sources).If you can't read that, it just says:

Jeff Sessions is still quoting a bad study to score points with law enforcement officials. Earlier this year -- while speaking to the National Association of Police Organizations -- he cited a study by two Chicago lawprofs that supposedly drew a connection between violent crime spikes in Chicago and a settlement with the ACLU, reached after years of police misconduct and abuse.The Attorney General's point was clear: misconduct and abuse are what's keeping criminal activity at bay. Constitutionally-sound police work lets the criminals win. The problem with Sessions' assertions -- and the law profs' conclusions -- is several cities with consent decrees or settlements in place have seen violent crime rates continue to go down, indicating there's really no provable connection between violent crime rates and so-called "limitations" on police activity.Nevertheless, he persists. Speaking to the VALOR Survive and Thrive Conference, Sessions chose to quote the same faulty study again. (Quick sidebar: VALOR stands for "Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability."Really.) [h/t Ryan Reilly]

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So many defamation lawsuits that we see are so obviously bogus on their face that often it feels like we should reconsider the rules for defamation in the first place. Over and over again we see defamation lawsuits that are obviously SLAPP suits, in which the powerful seek to silence those who criticize them. This lawsuit is one of the rare cases where it does not appear to be a SLAPP suit at all -- and, Elon Musk almost seemed to force the hand of Vern Unsworth into suing him for defamation. Musk, who is a visionary innovator, but who has been involved in increasingly bizarre behavior of late, kicked a bunch of this off with a tweet back in July calling Vern Unsworth a "pedo guy" after Unsworth criticized his submarine plan.If you somehow missed all of this, there were 12 children trapped in a cave in Thailand, and Musk got intrigued by the rescue attempts and very quickly worked with his own engineers to design and prototype a small submarine that might be used to help rescue the kids. There were a lot of mixed reports on all of this, from some thanking and appreciating Musk making such an effort (he even flew to Thailand with the sub) to others mocking him for shoving himself into the rescue efforts. Wherever you stand on that debate, it really makes no difference for what came next. While some of those involved in the rescue thanked Musk for trying (even though his sub wasn't needed), Unsworth, who had spent years mapping the caves and was widely credited for both bringing in the more experienced divers and for helping the rescuers find the kids in the first place, was unimpressed by Musk's sub and said so. Specifically, he called it a PR stunt, said it had no chance of working, and said "he can stick his submarine where it hurts."

You might recall that when the Trump FCC killed net neutrality, the public comment period (the only chance consumers had to actually offer their opinion) was plagued with all manner of identity theft and bogus comments. Oddly, the FCC didn't seem too concerned that dead people were filing comments to the FCC website supporting their extremely unpopular decision, and even actively blocked law enforcement investigations into what happened. It's worth noting that similar campaigns to generate bogus support for unpopular policies have plagued other government agencies in the post-truth era.Annoyed by the FCC's lack of transparency and its refusal to respond to FOIA requests for additional data, journalist Jason Prechtel sued the FCC in late 2017. This week, a ruling (pdf) by Christopher Cooper of US District Court for the District of Columbia ordered the FCC to hand over at least some of the data. The ruling requires that the FCC hand over email addresses that were used to submit .CSV files, which in turn contained the bulk comments. The order did not, however, grant Prechtel's request for server logs, which could help detail who used specific APIs.In his ruling, Cooper stated that understanding what went wrong would help prevent fraud in other proceedings moving forward (something, again, the FCC has shown it's really not too concerned about):

The Ninth Circuit Appeals Court has upheld the stripping of immunity from a school resource officer who clearly violated the rights of multiple students, but still felt the need to be told twice by consecutive federal courts.School is school and kids will get in fights. Some accusations about bullying brought several seventh grade students to the school's office, along with Deputy Luis Ortiz. Ortiz reached the limits of his training and experience extremely quickly when he was unable to determine who was bullying who or why these seventh grade students wouldn't give him the respect he so clearly felt he was owed. So, here's how he made the most (constitutional violations) of a bad situation. From the decision [PDF]:

We have been tracking milestones in the maturity of eSports as a real cultural pastime for several years now, given how eSports almost perfectly intersects two main topics here at Techdirt: technology and digital economies. While those that claimed eSports would become a real thing have long been the recipients of skeptical narrow eyes, pro gaming has already zoomed past a number of important checkpoints on its way to legitimacy. Tournaments were heavily viewed overseas at first, but pro gaming then became recognized by universities for athletic scholarships. Next came coverage of tournaments on ESPN, followed eSports leagues being created by some of the major professional sports leagues in America and abroad. Even the IOC kicked around the idea of including eSports in future Olympic Games.While the latest milestone perhaps isn't as grand as the opening of leagues and new broadcast channels, it is still a notable development that the very first pro gamer will be featured on the cover of ESPN The Magazine this week. That honor will go to Tyler "Ninja" Blevins, who has amassed an enormous following on Twitch and elsewhere.

A little opsec goes a long way. The Massachusetts State Police -- one of the most secretive law enforcement agencies in the nation -- gave readers of its Twitter feed a free look at the First Amendment-protected activities it keeps tabs on… by uploading a screenshot showing its browser bookmarks.Alex Press of Jacobin Magazine was one of the Twitter users to catch the inadvertent exposure of MSP operations.

The Hollywood Chamber of Commerce is somewhat infamous for its constant trademark bullying over the famed Hollywood sign (you know the one). Its latest target is apparently the Hollywood Babble-On podcast that is done as a live show each week by radio/podcast guy Ralph Garman and filmmaker/entertainer Kevin Smith. Before the show this past weekend, Garman had tweeted out that it might be the last Hollywood Babble-On ever. In the opening minutes of their latest episode, Garman explains that they've received a cease and desist letter from the Hollywood Chamber of Commerce "re: unauthorized use of Hollywood stylized mark and Hollywood Walk of Fame mark."While I haven't seen the full cease-and-desist letter, from what Garman said on the podcast, the issue is so ridiculous that the Hollywood Chamber of Commerce should be called out for blatant trademark bullying. You see, while this is the normal logo/image promoting the podcast:At times, they've used other images, such as this one:It's that image that is apparently part of the problem (even though it's not clear how often it was used). The Chamber of Commerce is using the Hollywood style lettering, which is an approximation of the famous Hollywood sign, and the star behind their heads (which it apparently believes is an implied reference to the stars on Hollywood's walk of fame), to argue that this is unauthorized use of their marks. Some trademark lawyers will likely disagree, but this seems like classic trademark bullying.If you're unfamiliar with the podcast (and I'll confess to being a loyal listener from Episode 1 through the latest, and got to see the show once live at Kevin's invitation after he was on our podcast a few years ago), it's a fun (frequently not safe for work) show looking at some highlights from the week's entertainment news, mixed in with a series of re-occurring bits, frequently involving Garman's rotating cast of impressions. In short, it's two funny guys, who are both in show business and have been for many years, goofing off talking about show business, frequently mocking some of the crazier news stories coming out of that business.In other words, there's no way in hell that anyone in their right mind thinks that this podcast is officially sanctioned by "Hollywood" as some sort of official Hollywood product. The whole thing is kind of gently mocking some of Hollywood's sillier foibles. Indeed, this seems like a perfect use case for the old standby in trademark law: the "moron in a hurry" test. And, to make it more relevant to the hobbies of choice of Ralph and Kevin, I think it could be argued that neither a drunk, nor a stoned "moron in a hurry" would ever face even the slightest "likelihood of confusion" that Hollywood somehow had endorsed the podcast, just because it briefly had images showing slightly askew letters and a star.It remains one of the more frustrating aspects of trademark law that so many people believe that it means you get total control over the marks in question. That's not how it's supposed to work. It's only in cases where there is a likelihood of confusion that people would be confused and believe that the mark holder is behind (or otherwise endorses) the products and services in question. And here, that seems pretty difficult to believe. Of course, rather than fight these kinds of things out, it's frequently much easier to just pay up, which may be what the lawyers for the Hollywood Chamber of Commerce are banking on.

Back in April, Techdirt wrote about a set of regulations brought in by the Tanzanian government that required people there to pay around $900 per year for a license to blog. Despite the very high costs it imposes on people -- Tanzania's GDP per capita was under $900 in 2016 -- it seems the authorities are serious about enforcing the law. The iAfrikan site reported in June:

As the U.S. ponders what meaningful privacy protections should look like in the Comcast & Cambridge Analytica era, it should probably go without saying that consumers should be part of that conversation. Unsurprisingly, that hasn't really been the case so far. That was exemplified, in part, by the GOP's decision to neuter FCC broadband privacy rules much the same way they dismantled net neutrality: by ignoring any consumer-oriented input that didn't gel with their pre-existing beliefs: namely that all regulation is always bad and a nuanced conversation on the merits of each instance of regulation simply isn't necessary.When a "conversation" does occur, it tends to be superficial at best, and consumers pretty consistently aren't invited to the table. Case in point: on September 26, the Senate Commerce Committee will be holding a hearing entitled "Examining Safeguards for Consumer Data Privacy." One of the motivating reasons for this hearing, at least according to Senator John Thune, was because "consumers deserve clear answers" on privacy:

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Our President promised to get busy on The Cyber. So did the last president. It's a very presidential thing to do. Something in the government gets hacked, exposing millions of people's personal info, and everyone in the government agrees Something Should Be Done. Committees are formed. Plans are drawn up. Directives are issued. Laws are passed. Then the whole thing is turned over to government agencies and nothing happens.

We've mentioned several times how Google Fiber's promise to revolutionize the broadband sector never really materialized. There's a long list of reasons for that, from incumbent ISPs suing to stop Google's access to utility poles, to Alphabet executives suddenly getting bored with the high cost and slow pace of deploying fiber and battling entrenched monopolies.As it stands, Google Fiber's expansions are largely on pause as company executives figure out how much money they're willing to spend, what the wireless future looks like, and whether Alphabet really wants to participate. That said, while Google Fiber's actual footprint pales in comparison to the hype, the service was a success in that it generated a quality, nationwide conversation about the sorry state of U.S. broadband competition, and spurred some otherwise apathetic incumbent ISPs to actually up their game, as countless cities nationwide decried the terrible state of existing service.That point was driven home this week in this piece by Blair Levin and Larry Downes. In it, the two quite correctly note that Google Fiber not only pushed incumbents to expand more fiber, but also resulted in incumbent ISPs offering dramatically lower rates in markets where Google Fiber was deployed. This is, as you may already know, how real competition is supposed to work:

Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

If you feel like you're about to get a silly trademark story, your spidey-sense is working. We'll keep this short and sweet, but this whole thing centers around Gwen Stacy, otherwise known as Spider-Woman. But because this is Marvel we're talking about, there is also something of an alternate universe version of Gwen Stacy, in which she went by the name Spider-Gwen, but has more recently had that character rebooted as Ghost-Spider.Confused yet? Well, it's about to get worse.When Marvel applied for a trademark on the Ghost-Spider name, two different companies asked for more time to oppose the marks. One opposition likely makes some sense and might be rather limited to the sports equipment and apparel markets that Marvel asked for in addition to comic books. That one comes from golf club manufacturer Taylor Made, which happens to make a putter line called Ghost Spider, with the apparel to match it.

For many, many years we've been writing about the ridiculousness of the Congressional Research Service's reports being kept secret. If you don't know, CRS is a sort of in-house think tank for Congress, that does, careful, thoughtful, non-partisan research on a variety of topics (sometimes tasked by members of Congress, sometimes of its own volition). The reports are usually quite thorough and free of political nonsense. Since the reports are created by the federal government, they are technically in the public domain, but many in Congress (including many who work at CRS itself) have long resisted requests to make those works public. Instead, we were left with relying on members of Congress themselves to occasionally (and selectively) share reports with the public, rather than giving everyone access to the reports.Every year or so, there were efforts made to make all of that research available to the public, and it kept getting rejected. Two years ago, two members of Congress agreed to share all of the reports they had access to with a private site put together by some activists and think tanks, creating EveryCRSReport.com, which was a useful step forward. At the very least, we've now had two years to show that, when these reports are made public, the world does not collapse (many people within CRS feared that making the reports public would lead to more political pressure).Earlier this year, in the Consolidated Appropriations Act of 2018, there was a nice little line item to officially make CRS reports publicly available.And, this week, it has come to pass. As announced by Librarian of Congress Carla Hayden, there is now an official site to find CRS reports at crsreports.congress.gov. It appears that the available catalog is still limited, but they're hoping to expand backwards to add older reports to the system (a few quick test searches only shows fairly recent reports). But all new reports will be added to the database.

We've done it — we've solved the challenge of content moderation! (Checks notes). No, wait, sorry: we haven't. But what we have done is invited Kate Klonick, law professor and author of the excellent paper The New Governors: The People, Rules, and Processes Governing Online Speech, to join us for an in-depth discussion about how we got here and why there are no easy or simple answers for content moderation.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.

TODAY IN GARBAGE HUMAN BEINGS:

Imagine a scenario:You have a Facebook page, on which you've posted some sort of status update. Maybe an update from your vacation. Maybe a political idea. Maybe a picture of your kids. And someone comes along and adds a really awful comment on your post. Maybe they insult you. Maybe they insult your politics. Maybe they insult your kids.Would you want to be legally obligated to keep their ugly comments on your post? Of course not. You'd probably be keen to delete them, and why shouldn't you be able to?Meanwhile, what if it was the other way around: what if someone had actually posted a great comment, maybe with travel tips, support for your political views, or compliments on how cute your kids are. Would you ever want to be legally obligated to delete these comments? Of course not. If you like these comments, why shouldn't you be able to keep sharing them with readers?Now let's expand this scenario. Instead of a Facebook page, you've published your own blog. And on your blog you allow comments. One day you get a really awful comment. Would you want to be legally obligated to keep that comment up for all to see? Of course not. Nor would you want to be legally obligated to delete one that was really good. Think about how violated you would feel, though, if the law could force you to make these sorts of expressive decisions you didn't want to make and require you to either host speech you hated or force you to remove speech that you liked.And now let's say that your website is not just a blog with comments but a larger site with a message board. And let's say the message board is so popular that you've figured out a way to monetize it to pay for the time and resources it takes to maintain it. Maybe you charge users, maybe you run ads, or maybe you take a cut from some of the transactions users are able to make with each other through your site.And let's say that this website is so popular that you can't possibly run it all by yourself, so you run it with your friend. And now that there are multiple people and money involved, you and your friend decide to form a company to run it, which both gives you some protection and makes it easier to raise money to invest in better equipment and more staff. Soon the site is so popular that you've got dozens, hundreds, or even thousands of people employed to help you run it. And maybe now you've even been able to IPO.And then someone comes along and posts something really awful on your site.And someone else comes along and posts something you really like.Which gets to the point on this post: if it was not OK for the law to be able to force you to maintain the bad comments, or to delete the good ones, when you were small, at what point did it become OK when you got big – if ever?There is a very strong legal argument that it never became OK, and that the First Amendment interest you had in being able to exercise the expressive choices about what content to keep or delete on your website never went away – it's just that it's easier to see how the First Amendment prevents being forced to make those choices when the choices are so obviously personal (as in the original Facebook post example). But regardless of whether you host a small personal web presence, or are the CEO of a big commercial Internet platform, the principle is the same. There's nothing in the language of the First Amendment that says it only protects editorial discretion of small websites and not big ones. They all are entitled to its protection against compelled speech.Which is not to say that as small websites grow into big platforms there aren't issues that can arise due to their size. But it does mean that we have to be careful in how we respond to these challenges. Because in addition to the strong legal argument that it's not OK to regulate websites based on their expressive choices, there's also a strong practical argument.Ultimately large platforms are still just websites out on the Internet, and ordinarily the Internet allows for an unlimited amount of websites to come into being. Which is good, because, regardless of the business, we always want to ensure that it's possible to get new entrants who could provide the same services on terms the market might prefer. In the case of platform businesses, those may be editorial terms. Naturally we wouldn't want larger companies to be able to throw up obstacles that prevent competitors from becoming commercially viable, and to the extent that a large company's general business practices might unfairly prevent competition then targeted regulation of those specific practices may be appropriate. But editorial policies are not what may prevent another web-based platform from taking root. Indeed, the greater the discontent with the incumbent's editorial policies, the more it increases the public's appetite for other choices.The problem is, if we regulate big platforms by targeting their editorial policies, then all of a sudden that loss of editorial freedom itself becomes a barrier to having those other choices come into being, because there's no way to make rules that would only apply to bigger websites and not also smaller or more personal ones, including all the nascent ones we're trying to encourage. After all, how could we? Even if we believed that only big websites should be regulated, how would we decide at what stage of the growth process website operators should lose their right to exercise editorial discretion over the speech appearing on their sites? Is it when they started running their websites with their friends? Incorporated? Hired? (And, if so, how many people?) Is it when they IPO'd? And what about large websites that are non-profits or remain privately run?Think also about how chilling it would be if law could make this sort of distinction. Would anyone have the incentive to grow their web presence if its success meant they would lose the right to control it? Who would want to risk building a web-based business, run a blog with comments, or even have a personal Facebook post that might go viral, if, as a consequence of its popularity, it meant that you no longer could control what other expression appeared on it? Far from actually helping level the playing field to foster new websites seeking to be better platforms than the ones that came before, in targeting editorial policies with regulation we would instead only be deterring people from building them.

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Pre-order your copy of CIA: Collect It All today »It's been a while since we've mentioned our version of the CIA's internal training card game, that we Kickstarted back in April. For those who backed it, you've been receiving all the various updates on it -- including allowing everyone to download the rulebook. And now the game is officially in production -- which also means this may be your last chance to purchase a physical copy. While we're printing up some extra copies beyond what's already been ordered, at this point we're only doing this one printing of the game, and that'll be it. You can still pre-order the game here, and as we get closer to selling out the initial run we'll turn it off.If you don't recall, this project grew out of the CIA telling the world about some of the internal training card and board games it had developed, leading to some FOIA requests that revealed the heavily redacted details of some of these games. We picked one of them -- which the CIA calls Collection Deck -- and turned it into our own game, entitled: CIA: Collect It All. It's a fast paced card game, in which players take on the role of CIA analysts, trying to collect enough information, using a variety of different spycraft techniques, to deal with various crises. Of course, as with the real world, other forces seek to get in the way and block the analysts from collecting all of the information they need.For our version of the game, we had to fill in a whole bunch of redacted cards, completely redo the design, and add in some other fun aspects to the game -- including an entirely different "storytelling" variant which allows you to use the same cards for a very different kind of game (still based on the CIA).After completing the redesign, filling in all of the redacted bits, adding new rules, rewriting the entire rulebook from scratch and more, we finally received our first prototype, and have approved it going into full production. We've initially ordered more than we sold via Kickstarter, but not a huge amount, so if you want a physical copy, it makes sense to put your order in soon.

Much like the giant ISPs he's clearly beholden to, Ajit Pai isn't particularly happy about California's efforts to pass meaningful net neutrality rules. The state's shiny new law recently passed the state assembly and senate, and is awaiting the signature of California Governor Jerry Brown. ISPs recently met with Brown in a last-minute bid to get him to veto the bill (a very real possibility) despite widespread, majority public support.Pai last week took some time to whine about California's bill at the Maine Heritage Policy Center, a "free market" think tank supported by (shockingly) major ISPs. In his speech, Pai insisted that California's attempt to protect consumers is somehow both "extreme" and "illegal":

The Sixth Circuit Appeals Court has taken a look at some of President Trump's campaign trail trash talk and decided urging fans to remove protesters wasn't incitement, even if the phrasing was a bit graceless. (h/t Elizabeth Joh)The plaintiffs -- Kashiya Nwanguma, Molly Shah, and Henry Brosseau -- attended a Trump campaign rally for the express purpose of protesting it. There's nothing wrong with that. It's the sort of thing that happens all the time, even if Trump tends to draw more detractors than most. During his speech, Trump had his critics ejected, telling attendees to "get 'em out of here."The plaintiffs, having been unceremoniously ejected (with some extra jostling from Trump supporters), sued, claiming Trump's "get 'em out of here" directly caused them harm and violated the state of Kentucky's riot incitement law.The Appeals Court disagrees [PDF] with this assessment, using the plaintiffs' own statements to undo their assertions. But it's not happy with the lower court's decision to apply a less strict standard to Trump's wording to give the plaintiffs a better shot at hitting the mark with their state claims ("incitement to riot"). Applying the plausibility standard -- that Trump's "get 'em out of here" could have conceivably incited a riot -- makes no sense if the lower court wasn't willing to apply that same standard to words Trump said directly after that.

Earlier this year, we wrote about what seemed to be a fairly serious breach of security at the world's largest biometric database, India's Aadhaar. The Indian edition of Huffington Post now reports on what looks like an even more grave problem:

For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

For some time, Swedish ISP Bahnhof has been sounding the alarm over copyright trolling practices in its home country. While cynics will note that Bahnhof has absolutely made its refusal to hand over customer data a central part of its marketing messaging, the ISP has also made a point to publicly track copyright trolling court cases, threat letters, and pretty much everything else related to copyright trolling in Sweden. And, frankly, it's due pretty much solely to Bahnhof's tracking efforts that we now know just how insanely worse copyright trolling in Sweden has gotten in just the last year or so.

So this is somewhat unexpected, but Rep. Doug Collins has introduced HR 6714, a bill to make federal court records free to the public.

Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds -- many of which weren't possible before the Snowden leaks exposed the breadth and depth of the NSA's domestic surveillance.The federal judge presiding over the case -- which involved material support for terrorism charges -- has declared there's nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

Last week we, like many others, wrote about the story of Anders G da Silva, who had complained on Twitter about how Apple had disappeared three movies he had purchased, and its customer service seemed to do little more than offer him some rental credits. There was lots of discussion about the ridiculousness -- and potential deceptive practices -- of offering a "buy" button if you couldn't actually back up the "purchase" promise.Some more details are coming out about the situation with da Silva, and some are arguing that everyone got the original story wrong and it was incorrect to blame Apple here. However, looking over the details, what actually happened may be slightly different, but it's still totally messed up. Apple didn't just stop offering the films. What happened was that da Silva moved from Australia to Canada, and apparently then wished to redownload the movies he had purchased. It was that region change that evidently caused the problem. Because copyright holders get ridiculously overprotective of regional licenses, Apple can only offer some content in some regions -- and it warns you that if you move you may not be able to re-download films that you "purchased" in another region (even though it promises you can hang onto anything you've already downloaded).And, here the situation is slightly more confusing because Apple actually does offer the same three movies -- Cars, Cars 2 and The Grand Budapest Hotel -- in both Australia and Canada, but apparently they may not be the identical "versions" of the film, as they may be slightly altered depending on the region.And while this may be marginally better than completely removing his "purchased" films, it's still absolutely ridiculous. The CNET article linked above is sympathetic to the idea that Apple has to go to extreme lengths such as these to prevent "region hopping," and says that da Silva is just an "edge case" that "fell into a licensing crack." But, again, that's nonsense. This is digital content that he "purchased" using a "buy" button. It shouldn't matter where he is at some later date. He should still get access to those original files. That's what a purchase means. The fact that this might possibly in some cases mean that (OH MY GOSH!) someone in Canada can access a movie released in Australia when they're actually in Canada, well, uh, that seems like an "edge case" that a movie studio and Apple should deal with, rather than screwing over legitimate purchasers.But, alas, we're left with yet another example of the insanity driven by excessive copyright, in which copyright holders get so overly focused on the notion of "control" that they feel the need to control absolutely everything -- including making sure that no wayward Canadians might (GASP!) purchase and download a movie meant for Australians. It's this overwhelming, obsessive desire to "control" each and every use that messes with so many people's lives -- including da Silva's -- and makes sure that the public has almost no respect at all for copyright. Give up a little control, and let the edge cases go, and maybe people wouldn't be so quick to condemn copyright for removing their own rights so frequently.

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More bad news is surfacing from Google's Chinese government-ordained search engine. The project, known as "Dragonfly," has proven unpopular with some Google employees and many, many Google critics. The Intercept obtained leaked documents from a unhappy Google employee back in early August. More information has surfaced, thanks to additional documents leaked to the site. Whatever surveillance/censorship concerns Dragonfly posed are far more pronounced in the wake of these new leaks.