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There's no unified national view on First Amendment protections for filming police, but a few recent cases have established this right in some judicial circuits. Until a case makes its way to the US Supreme Court, cops who don't like being recorded in public can still roll the dice on immunity when arresting people for operating cameras.Via the Volokh Conspiracy (at its new, paywall-free home at Reason) comes another decision in favor of a First Amendment right to record. This one was delivered by the Hawaiian state supreme court, which at least ensures residents can't be hassled for recording officers… or at least ensures success in the pursuant lawsuit.In this case, journalist Thomas Russo happened upon a police checkpoint and decided to film it. During his filming of a traffic stop, he was instructed to do several things -- like back up and turn his vehicle's hazard lights on. Every instruction given by officers appeared to be followed in Russo's recording but officers still arrested him and took his phone. The charges -- failing to comply with a lawful order and disorderly conduct -- were ultimately dismissed. The court examined the footage of the stop and found it did not show Russo disobeying orders. Anything that appeared as noncompliance on Russo's part was due to the vagueness of the officer's orders, rather than direct disobedience.More importantly, the court takes a stand on the First Amendment issue.

Touted as police accountability tools, body cameras haven't lived up to that reputation. Camera roll outs have had mixed results. In some places, departments have experienced declines in complaints. In others, the data shows nothing conclusive -- except, perhaps, that the cameras can be manipulated as easily as dashcams and audio recorders.The one place cameras are definitely paying off, it seems, is in courtrooms. And it has nothing to do with civil lawsuits and everything to do with locking people up. If there's an entity benefiting directly from the explosion in body camera use, it's the nation's prosecutors. The stated fears about body-worn cameras being used by department brass to play "gotcha" with the rank-and-file haven't materialized. More often than not, footage is being used to put people behind bars.A George Mason University survey [PDF] of prosecutors shows a majority of them have used body-worn camera footage as evidence.

In all of our coverage of the actions of the Turkish government under President Recep Tayyip Erdogan, quite a picture of the man, who now has a stranglehold on his country, has emerged. We can be sure of many things with all of this coverage. For instance, Erdogan has an ego the size of an oil rig, yet the intellectual armor of a flea. We also know that His Honor is perfectly happy to brutally wield the power of a sovereign nation for the petty benefit of his reputation. And, when all else fails, detractors and the journalists that cover him can be simply labled "terrorists" before being jailed, tortured, or otherwise harmed.Still, for those of us in America, the dealings of a dictator can be beyond the horizon, both literally and figuratively. There are many places in the world ruled by goons, after all, and we have a proud tradition in America of simply not giving a shit if it doesn't effect the homeland in some conceivable way. Well, in the case of Erdogan, there is at least a touch-point for his brutality in New York Knicks big-man Enes Kantor who, after having members of his family arrested for the crime of being related to him, is now facing a trial in his absence on charges of insulting Erdogan and, you guessed it, being a terrorist.

Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying "Good luck in the race!" or "Have fun in New York!" Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That's not a good invention, it's our latest Stupid Patent of the Month.U.S. Patent No. 9,069,648 is titled "Systems and methods for delivering activity based suggestive (ABS) messages." The patent describes sending "motivational messages," based "on the current or anticipated activity of the user," to a "personal electronic device." The patent provides examples such as sending the message "don't give up" when the user is running up a hill. The examples aren't limited to health or exercise. For example, the patent suggests sending messages like "do not fear" and "God is with you" when a "user enters a dangerous neighborhood."The patent's description of its invention is filled with silly, non-standard acronyms like ABS for "activity based suggestive" messages or EBIF for "electronic based intelligence function." These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.The '648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of the people behind it has been involved in massive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the '648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.We believe that the claims of the '648 patent are clearly invalid under the Supreme Court's decision in Alice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:

It appears we won't be seeing any action on Section 702 until next year. The authority was supposed to sunset at the end of 2017, but legislators have yet to reach an agreement on any modifications or reforms.

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Now that the FCC has done as it said it was going to do and declared that broadband internet is properly classified under Title I of the Communications Act, rather than Title II, I'm left wondering if taxpayers will be getting back all the subsidies that we provided Verizon, AT&T and others when they claimed that their broadband networks should be classified under Title II in order to qualify for those subsidies. You may recall that we wrote about this three years ago, highlighting multiple examples where Verizon specifically begged for Title II classification of its fiber-to-the-premise networks in multiple cities to guarantee that it would get these subsidies.See, for example, Verizon begging to be classified under Title II in New Jersey.Or how about something similar in Washington DC: in DC.Somehow, I imagine that Verizon has no intention of paying back taxpayers for those benefits. I mean, why would it? This is the very same company that has repeatedly promised massive broadband deployment in exchange for subsidies, and then repeatedly failed to deliver and, when called on it, gets local politicians to drop the promises (but not the subsidies).The Title II shell game appears to be more of the same. Make sure that its networks get declared as Title II to get the subsidies and tax breaks, then avoid any of the requirements/regulations of Title II, but keep all the benefits. Somehow I don't see FCC chair Ajit Pai being too concerned about all of this.

Numerous states say they'll be crafting their own net neutrality protections in the wake of the FCC's recent vote to dismantle the rules. ISPs of course predicted this, which is why Comcast and Verizon successfully lobbied the FCC to include provisions in its "Restoring Internet Freedom" order that bans states from protecting consumers from privacy and net neutrality violations, or other bad behavior by incumbent ISPs. In ISP lobbying land, stopping states from writing protectionist law is an assault on "states rights," but when states actually try to help consumers you'll note the concern for states rights magically disappears.Regardless, New York State, California and Washington have all indicated that they will attempt to test the FCC's state preemption authority on this front in the new year by crafting their own net neutrality legislation. You'll recall that the FCC already had its wrist slapped by the courts for over-reach when it tried to preempt states from passing anti-community broadband laws, quite literally written by large ISPs, intended to hamstring creative solutions (including public/private partnerships) for the telecom industry's broadband competition logjam.But even if the FCC wins this new legal fight over state authority, folks like New York Assemblymember Patricia Fahy argue there's numerous steps states and cities can take to protect consumers on the net neutrality front without running afoul of the FCC's order. The text of her proposal (pdf) includes numerous proposals, including refusing to do business with companies that repeatedly violate net neutrality:

We, the people, are going to shell out $1 billion for the DHS to scan our faces into possibly illegal biometric systems. Those are the conclusions reached by the Georgetown Law Center on Privacy and Technology. A close examination the face scanning system the DHS plans to shove in front of passengers of international flights shows it to be a waste of money with limited utility.

It has certainly been a turbulent year for the NFL. The league is reeling from ratings declines, accusations of political bias, its own versions of the #MeToo wave that has collided with our larger culture, and a seemingly never ending controversy over how players comport themselves during the National Anthem that essentially works as a feedback loop of outrage on every side helped along by the man holding the highest public office in our union. With that in mind, relatively small intellectual property dust-ups may seem low on the eyeball list for those following the league, but it's still worth pointing out when the league gets IP questions wrong, as it often does.Yet not every accusation lobbed in its direction is valid and the rather over the top response from one online outlet over the branding of some t-shirts is one that is not. The background on this is that Barstool Sports is a part humor, part satire, part sports blog with a turbulent relationship with Roger Goodell and the NFL. The Boston iteration of the site has been a particularly virulent thorn in the NFL's side and made much of its name when the league suspended Tom Brady for deflating some footballs. The site also pitches a line of t-shirts with the phrase "Saturdays are for the boys" on them, which I suppose is some kind of a nod to college football. Well, the NFL recently came out with a line of "Sundays are for the [blank]" line of shirts, with the blank being each of the 32 NFL teams that famously play games on Sundays. This did not escape Barstool Sports' attention.

The FCC has done away with Net Neutrality. In its place, we get videos of Ajit Pai mocking his opponents, served up in a melange of mishandled memes. We also, apparently, get this: a future where our lives are interrupted by push notifications that treat grown-ass police officers like kidnapped children. (h/t That Anonymous Coward)

In 2011, Colombian graduate student Diego Gómez did something that hundreds of people do every day: he shared another student's Master's thesis with colleagues over the Internet. He didn't know that that simple, common act could put him in prison for years on a charge of criminal copyright infringement.After a very long ordeal, we can breathe a sigh of relief: a Colombian appeals court has affirmed the lower court's acquittal of Diego.How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet?Diego's case is a reminder of the dangers of overly restrictive copyright laws. While Diego is finally in the clear, extreme criminal penalties for copyright infringement continue to chill research, innovation, and creativity all over the world, especially in countries that don't have broad exemptions and limitations to copyright, or the same protections for fair use that we have in the United States.In another sense, though, the case is a sad indictment of copyright law and policy decisions in the U.S. Diego's story is a reminder of the far-reaching, worldwide implications of the United States government's copyright law and policy. We failed Diego.How did we get to the point where a student can go to prison for eight years for sharing a paper on the Internet? The answer is pretty simple: Colombia has severe copyright penalties because the United States told its government to introduce them. The law Diego was tried under came with a sentencing requirement that was set in order to comply with a trade agreement with the U.S.International trade agreements are almost never good news for people who think that copyright's scope and duration should be limited. By establishing minimum requirements that all countries must meet in protecting copyrighted works, they effectively create a floor for copyright law. It's easy for signing countries to enact more restrictive laws than the agreement prescribes, but difficult to create less restrictive law.Those agreements almost never carry requirements that participating nations honor limitations on copyright like fair use or fair dealing rights. Just this week, a coalition of 25 conservative groups sent a letter to the U.S. Trade Representative (USTR) arguing against the inclusion of any provision in the North American Free Trade Agreement (NAFTA) that would require countries to include balanced copyright limitations and exceptions such as fair use, as EFF and other groups have suggested. Countries like Colombia essentially get the worst of both worlds: strong protection for large rights-holders and weak protection for their citizens' rights.As we've pointed out before, it's depressing that someone can risk prison time for sharing academic research anywhere in the world. If open access were the standard for scientific research, Diego would not have gotten in trouble at all. And once again, it's the actions of countries like the United States that are to blame. The U.S. government is one of the largest funders of scientific research in the world. If the United States were to adopt a gold open access standard for all of the research it funds—that is, if it required that research outputs be made available to the public immediately upon publication, with no embargo period—then academic publishers would be forced to adapt immediately, essentially setting open access as the worldwide default.EFF is delighted that Diego can rest easy and focus on his research, but unfortunately, the global conditions exist to put researchers all over the world in similar situations. No one should face years in prison for the act of sharing academic research. Making the changes in law and policy to prevent stories like Diego's from happening again is a goal we should all share.Republished from EFF's Deeplinks blog.

Child porn laws continue to be used stupidly by state prosecutors to punish teens for consensual behavior. The ACLU has entered a case on behalf of a 14-year-old who sent explicit photos of herself to another teen. This teen then sent the photos to others. At some point, the state decided to step in. What the teen did was demonstrably stupid, but should it be criminal?

A common lobbying tactic in the telecom sector is to take something you were already planning to do anyway, then when it happens claim it only could have occurred thanks to "X" policy or lobbying favor. For example you'll recall that every time AT&T wants a merger approved, the company will promise to "expand" broadband into areas it already planned to service. Regulators are frequently all-too-happy to let this disingenuous nonsense slide because (thanks to an unskeptical media) it helps portray them as having held a company's feet to the fire -- even if nothing is actually changing.Fast forward to last week, when Comcast posted a missive to its website claiming that thanks to the GOP Tax plan and the Trump administration's attack on net neutrality, the company would be doling out $1,000 bonuses to some employees, and spending fifty billion dollars on network investment over the next five years:

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For many years we've criticized copyright policymakers who rely on "faith-based" policymaking. That is, they believe that copyright is inherently "good" and refuse to consider any evidence showing harms from copyright that is too strong, or refuse to concede that there may be better ways to create incentives or to remunerate creators beyond copyright. The idea of actually having evidence-based copyright has long seemed like a pipedream -- and apparently the EU Commission would like to keep it that way. Back in September, we wrote about how the EU Commission spent $400,000 on a study that showed unauthorized downloads had little impact on sales -- and then refused to release the report, recognizing that it would undermine the narrative they were pushing in trying to expand anti-piracy laws.And, now, another such "buried" report has been discovered. As with the last one, this new report was discovered by Pirate Party EU Parliament Member Julia Reda, though she used the standard EU Freedom of Information process that anyone else could have used. After discovering that last report, she made a request for all copyright related studies that the EU Commission had requested since 2013, even if they were unpublished. That initial request listed out some papers that were still in progress -- including the one that Reda has now released. This study is one that a lot of news publishers almost certainly wished would have never seen the light of day -- which might explain why the EU Commission kept it buried.The report focuses on the question of news aggregators and what impact they're having on news publishers. As you may recall, publishers around the globe -- but especially in Europe -- have been insisting that aggregators like Google News are somehow responsible for their own business failures, and are demanding that Google pay them for the awful crime of sending them traffic. The fact that these publishers could easily block Google from sending them traffic -- but refuse to do so -- reveals that they really do find that traffic valuable. But they still want payments on top of it, and will continue to demonize Google News and other aggregators until they get it. And, indeed, the EU Commission continues to suggest that forcing aggregators to pay publishers would be a good idea.But, perhaps not surprisingly, the study that the Commission requested shows the exact opposite of what the publishers claim. Looking at situations in Spain and Germany -- both countries that tried to force Google to pay -- gives some real world evidence that is inconvenient for publishers and those pushing for these kinds of laws:

Earlier this year Washington State sued Comcast for routinely ripping off its customers. The original complaint (pdf) argued that Comcast violated Washington state’s Consumer Protection Act (CPA) by misrepresenting its "Service Protection Plan," which lets users pay a $5 per month additional fee to cover "all" service calls. But the investigation found that Comcast not only over-stated what the plan covered, but routinely signed customers up for the plan who never asked for it, resulting in an additional $73 million in subscription fees over the last five years for what the State AG called a "near-worthless" plan.The original complaint found that Comcast reps repeatedly sold the plan as being "comprehensive," covering all service calls, including those related to inside wiring, customer-owned equipment connected to Comcast services and "on-site education about products." But when customers subscribed to the plan called up thinking they'd then get a break from Comcast on service charges, the company would routinely bill customers anyway for all manner of services and repairs that should have been covered under the plan.Amusingly, last week while Comcast was busy celebrating the vote to kill net neutrality, Washington Attorney General Bob Ferguson announced that his office would be amending and expanding its original complaint. According to investigators, the width and breadth of Comcast's protection plan scam went far deeper than investigators originally realized. After reviewing company interactions with subscribers, the AG found that "Comcast may have signed up more than half of all SPP subscribers without their consent," and in numerous instances charged customers for the SPP plan after telling them it was "free."Ferguson's office claims they were "shocked" by the level of deception that occurred at Comcast:

The American Dream: own your own business... be your own boss... run your reputation into the ground... charge people's credit cards $350 for negative reviews... get sued by the government. Welcome to Nashville, Indiana, home of the Abbey Inn, whose absentee ownership, lack of on-duty staff, and hidden clauses have led to a precipitous decline in brand health, along with the opportunity to defend itself against a lawsuit brought by the state's attorney general.It all started with hotel guest Katrina Walker's disastrous stay at the Abbey Inn.

Over the last year, the scale of Russia's disinformation activities has become clearer. Its Internet Research Agency has deployed an astonishing range of sophisticated techniques, included accounts on Twitter and Facebook, and hiring activists within the US without the latter being aware they were working for the Russian government. We also now know that the same organization has been buying Facebook ads on a large scale that were seen by over a hundred million US citizens. But it would be naïve to think that Russia is the only foreign power engaged in this kind of activity. In fact, it would be surprising if any intelligence agency worth its salt were not carrying out similar activities around the globe. The first detailed information about China's use of fake social media accounts to recruit informants and extract sensitive information has just been published by the Bundesamt für Verfassungsschutz (BfV), Germany's domestic intelligence service. As Reuters reports:

Facebook, which was a bit late to the party, recently released its latest transparency report. In a break from earlier versions of the report, the social media giant has finally moved beyond only detailing requests for information by the government and its alphabet agencies and is now including intellectual property requests and statistics as well. There is a decent amount of information in both sections of the report, but on matters of both intellectual property requests and government information requests, an analysis of the numbers leads to some troubling conclusions.Let's deal with the IP section first. The headline of much of the media reporting on this has been about the 377,000 or so requests Facebook got to take down content based on IP issues, with well over half of those specifically being about copyright. It's not a small number and some are using it to make the case that Facebook is Mos Eisley when it comes to copyright infringement: a hive of scum and villainy. Tragically for those arguments, the validity of those requests makes this all seem far less impactful.

There was a bit of controversy last week concerning Apple slowing down older devices. It started, as so many things do, with a Reddit post, noting that Apple appeared to be slowing down the processor on phones with older batteries. Geekbench's John Poole then ran some tests confirming this. Apple then confirmed that it was doing so. All three of those links above also present the reason for this -- which is not necessarily a nefarious one -- though that doesn't necessarily mean it's a good explanation either. In short, it was a solution to a problem of older batteries causing "spontaneous" or "unexpected shutdowns."But, of course, slowing down the phone to avoid those kinds of shutdowns still has the impact of reduced performance on older phones -- which ultimately angers users or makes them feel like they need to upgrade before they really do. This wouldn't necessarily be a huge issue if two things were true: (1) it was easy to replace the batteries and (2) Apple was clear and upfront about this -- telling people they could avoid this issue by replacing the battery. Neither of those things are true. Apple makes it quite difficult to replace the batteries (though, not impossible) and only now is explaining this "hack."And, because this is America, lawsuits are already being filed. Multiple lawsuits. I imagine that they'll all be combined at some point into a giant class action, though I'm not sure how much of a chance this case has of going very far. Either way, I'd post the lawsuits, but as I type this PACER appears to not be working properly, and I really doubt there's much that's interesting in the complaints anyway.What's more interesting here is the troubling nature of just how much control over our devices we've given to the companies who sell us stuff. This all goes back to the theme that we've discussed many times around here, of how we no longer seem to own what we've ostensibly purchased. The fact that a company such as Apple can sneak in and change our settings in a way that harms overall performance -- even if it claims it has a good reason to -- is something that concern us all. And that's especially true as more and more of our devices have such connectivity... and our own ability to get in and fix stuff is more and more limited.

The FBI has proudly announced its kicking of another goal into the unguarded War on Terrorism net. And the press rejoices:The enthusiastic republishing of the FBI's narrative does little more than rewrite the DOJ's press release. Very few have dug into the charging documents. If they had, they might not have depicted a terrorist attack that was never going to happen as somehow being "thwarted" by the arrest of a 26-year-old man reeling from the recent loss of his children in a custody battle.According to the criminal complaint [PDF], Everitt Jameson was planning to detonate explosives at Pier 39 in San Francisco, a popular destination for tourists. The lead-up to Jameson's arrest (and supposed "thwarting") was filled with FBI informants and undercover agents, but not a single actual member of a terrorist group.The investigation began with a paid informant passing on Jameson's Facebook activity to the FBI.

David Kaye, a law professor who has also been the UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (quite the title!) has penned a very interesting article for Foreign Affairs (possibly behind a paywall or registration wall) about how Europe's recent attempts to regulate the internet are now a major threat to free speech. It talks about many issues we've written about, from the awful Right to be Forgotten cases to efforts to fine internet platforms if they don't magically disappear hate speech. While telling internet platforms to "fix it' may feel good, the reality is that it doesn't work, creates more problems, and gives those platforms even more power as the de facto speech police (something we should all be worried about). As Kaye writes:

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The Intelligence Community -- sixteen government agencies engaged in intelligence work under the ODNI's direction -- doesn't have much in the way of effective oversight. It's also not fond of whistleblowers, despite several legislative efforts to force the IC to play nice with those who report wrongdoing. Because of this, it's been repeatedly rocked by leaks. That's the sort of thing that happens when someone clamps down on the official whistleblowing routes: the pressure has to escape somewhere.Things will get worse in the IC, especially for whistleblowers, before it gets any better… or if it gets any better. A few months ago, the IC began ousting its in-house oversight. Dan Meyers, the Inspector General for the IC, is slowly and steadily being stripped of his power. Not only is Meyers barred from communicating with whistleblowers, but he's forbidden from briefing Congress or IC agencies about his office's tasks. He's also been stripped of his staff.Things have gone from bad to worse, Jenna McLaughlin reports:

By now we've well-established that the FCC's attempt to repeal net neutrality rules has been rife with fraud. From fake DDOS attacks to bogus comments during the open comment period, there was a fairly obvious effort made by the FCC and a mysterious ally (gosh, who benefits?) to downplay massive public opposition to the plan. And while the FCC has completely blocked law enforcement investigations into which group was behind these efforts, you can expect significantly more details to emerge during the court battles in the new year.That said, nearly four months have passed since the FCC closed its public comment period, and we're still finding new instances of identity theft, or cases where a dead loved one's identity was used to justify the FCC's blatant handout to telecom duopolies. For example, the brother of Stranger Things star Sean Astin posted on Twitter that their dead mother's identity had been used to help kill net neutrality:

We recently wrote about an interesting comment from Vladimir Putin's Press Secretary that Russia had no intention of cutting itself off from the rest of the Internet. But there's another side to the disconnection story, as this Guardian news item reveals:

This week, we wrote (as we have many times) about the huge challenge of moderating online content and how it's unrealistic to expect social media companies to be magically perfect at it. One commenter insisted we were wrong, making the strange comparison to a bouncer at a bar, and an anonymous response won first place for insightful:

Five Years AgoThis week in 2012, the MPAA was claiming that millions of DMCA takedowns are proof that Google needs to magically stop piracy, while the RIAA was trying to rewrite the history of copyright, and the BPI was threatening to personally sue the leaders of the UK pirate party. But the intellectual property diplomats at the US State Department were moaning about how they can't export strict copyright laws as easily as they'd like to, since for every country like the UK (where London police were setting up a special force of copyright cops), there was one like Australia (which was refusing to play Hollywood's game). Then, of course, at the end of that same week, the administration's shortlist for new ambassador appointments included a bunch of big Hollywood donors.Ten Years AgoThis week in 2007, it was sports organizations taking the lead in the copyright fight, realizing they could (ab)use it to try to stifle press coverage, and clamp down on those dastardly live-bloggers. The IFPI went after Alibaba for linking to downloadable music, while the Korean government was paying out $170 million to publishers to mollify them after copyright extensions hurt their businesses. Amidst all this, we were pointing out that "balance" in copyright is a myth and a red herring, and it's time to get off of our unhealthy addiction to intellectual property.Fifteen Years AgoNot much different this week in 2002, with the RIAA amping up its extremely dubious claims with extremely dubious math and Hollywood fighting to ban DVD-copying software — while more and more people began to realize that copyright was enabling widespread censorship (not to mention undermining cybersecurity). But, there was a noteworthy light in the darkness! It was this week, about a year after the initial announcement, that Creative Commons was officially launched and began its ongoing project to change the way we think about copyright, content and sharing.

Canada has its own PATRIOT Act -- one that was supposed to be fixed by its new heartthrob PM, Justin Trudeau. As Cory Doctorow points out at Boing Boing, Trudeau promised to fix it in post, but that's not what's happening.

Uber is a company that provokes strong emotions, as numerous stories on Techdirt indicate. Uber has been involved in some pretty bad situations, including inappropriate behavior, special apps to hide from regulators, and massive leaks of customer information. Despite this, it is undeniable that millions of people around the world love the convenience and competitive pricing of its service.Equally, traditional taxi services dislike it for the way Uber flouts transports regulations that they obey, which is fair enough, and hate it for the way Uber challenges their often lazy monopolies, which is not. This has led to some appalling violence in some countries, as well as numerous legal actions. One of those, instituted by a professional taxi drivers' association in Spain, has resulted in a case before the EU's highest court (pdf), the Court of Justice of the European Union (CJEU), which has just ruled as follows:

'Twas last year before Christmas, just about one year past,We wrote of "Fashion Santa," who disputed his task.Hired by Yorkdale Mall, a Toronoto affair,As a good looking Santa, to attract shoppers thereBut in 2016, a year already weirdFashion Santa retired, or so it appeared.When the mall chose to hire a new sexy St. NickFashion Santa said, "No!" for this was his shtickHe claimed that the character, whom ladies did like,Was creative and thus covered by copyrightBut Santa soon learned a basic IP lessonYou can't copyright ideas, only expression,And Yorkdale Mall had for a trademark applied,Should he go the same route, he'd be likely denied.For that reason this writer assumed in his post,That the mall would win... and Hot Santa would roast.But even this writer can be wrong, on occasionAs it seems Fashion Santa prevailed -- (yes, amazin'!)

Last week we wrote about the insanity of the DOJ's argument in trying to convict a group of protestors at Trump's inauguration. As we noted, the DOJ didn't even try to connect the defendants with any violence or property damage, but merely said that by being near the property damage they were accomplices, because they made the actual perpetrators harder to catch. When talking about the First Amendment and the right to assemble, Assistant US Attorney Rizwan Quereshi, incredibly, claimed that the defendants were "hiding behind the First Amendment." Even more incredibly, on Monday of this week another Assistant US Attorney, Jennifer Kerkhoff, tried to tell the jury that the judge's instruction about reasonable doubt "doesn't mean a whole lot", leading the judge to jump in and say that Kerkhoff clearly didn't mean to say that:

You'll probably recall that a few years ago, Netflix streams began mysteriously slowing down for users nationwide. Eventually, Netflix, Level3 and Cogent stated that the problem wasn't on Netflix's end, but was occurring at peering points, where they claimed incumbent ISPs had begun intentionally letting their networks congest by refusing to upgrade capacity. Why? The goal was to kill settlement-free peering and extract steep new troll tolls from content companies that wanted their traffic to reach incumbent ISP customers without, you know, being kneecapped.These interconnection issues were just a creative evolution of a longstanding efforts by ISPs to abuse their monopoly over the last mile. Level3 made a pretty compelling case that this was little more than glorified extortion. So too did New York Attorney General Eric Schneiderman, whose lawsuit against Charter/Spectrum (pdf) argued that ISPs were not only using manufactured congestion to drive up rates for transit and content companies, but had admitted to manipulating this congestion to trick regulatory efforts to measure real-world speeds (starting on page 62, if you're interested).Regardless, in 2015 the FCC's net neutrality rules gave the FCC the authority to police these interconnection points for anti-competitive behavior, and act if necessary. With the passage of the rules, all of this interconnection shenanigans magically and coincidentally stopped without the FCC having to lift a finger.Fast forward to last week, when the FCC voted to kill net neutrality rules -- including these interconnection protections. Ironically CenturyLink, one of the ISPs that lobbied for net neutrality repeal, had been urging the FCC to police interconnection squabbles anyway. Why? As the new owner of Level3, the company now has a vested interest in its traffic actually arriving at its destination. In a recent filing with the FCC (pdf), CenturyLink argued that the FCC should try and use its Title I authority to police interconnection:

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If you're a security software company and you want to know the best way to make sure that no security professional ever recommends your software ever again, you should do what Keeper Security did and sue a respected security journalist for reporting on your security flaws. As first reported by Zack Whittaker (link above), Keeper Security has filed a totally bullshit SLAPP lawsuit against Ars Technica and its widely respected security reporter Dan Goodin. Last week Goodin published a story about a major flaw in the browser extension for Keeper's password manager, that was bundled with Windows.The flaw was actually discovered by Google's Tavis Ormandy, who has a long history of discovering fairly high profile bugs -- especially in password managers (he famously found a big flaw in LastPass, earlier this year). Notice how LastPass responded, though. It worked with Tavis on fixing the problem and rushing out a solution. Compare that to how Keeper responded. It fixed the bug... but it's also filed a lawsuit -- but not against Ormandy. Instead, it's suing Ars and Goodin. And, let's be clear: the lawsuit is bullshit.The crux of the complaint from Keeper is that it wasn't Keeper's main software that had the vulnerability, but rather its browser extension plugin. This is a meaningless and silly distinction. Almost anyone using a software password manager (as you should) will install the browser plugins to go with the software. The software without the browser plugins is almost useless. The fact that Goodin didn't initially note the very trivial detail that the browser plugin wasn't included in the initial bundle, but would only be installed later once someone started using Keeper is meaningless, and not even close to defamatory.Here's how Keeper describes it in their own lawsuit:

For years now Netflix and HBO CEOs have stated that they see streaming service password sharing as little more than glorified advertising. These execs have long argued that once users realize they enjoy the product, they'll usually sign up for their own account (something particularly true of kids once they leave home and get a job). Even then, these companies already impose a limit on the number of simultaneous streams their services offer, and already charge more for a greater number of streams -- so it's not like these companies are giving away the farm for free anyway.But for the last several years incumbent broadcast and cable executives have been engaging in breathless hysteria regarding such password sharing. Charter CEO Tom Rutledge has grown increasingly agitated over the practice, arguing that HBO and Netflix's tolerance of password sharing shows a "complete lack of control and understanding in the space," while going so far as to argue that a "lack of control over the content by content companies and authentication processes has reduced the demand for video because you don’t have to pay for it."Of course you may have noticed that the "demand for video" is higher than ever before, based on Netflix's now 50 million monthly streaming subscribers and the massive rise in all manner of viewing options. And Netflix CEO Reed Hastings (who understands his own business pretty well at this point) has gone so far as to state he "loves" the practice:

As Techdirt has reported previously, Facebook is having various problems in the European Union because of the region's privacy laws. It turns out that data protection is not the only area where it is coming under scrutiny. Germany's competition authority, the Bundeskartellamt, has just made a preliminary assessment that Facebook's data collection is "abusive":

For roughly as long as Apple went through business-puberty and grew up into a big-boy company, it has held the somewhat strange belief that only it is allowed to use anything resembling an image of an apple as part of any kind of corporate branding. This has resulted in all kinds of bullying episodes and disputes over the logos of other companies that have little to no resemblance to Apple's iconic logo and typically involve companies that don't remotely compete with it either.But if Apple was hoping for some kind of chilling effect to be the result of these bullying efforts, it's only logical that this chilling effect would need to be renewed now and again. Fortunately, some silly pharmacy called Red Apple Interactive Pharmacy had the audacity to file a trademark application for the following logo.

Just this morning we wrote about a last minute plan by surveillance hawks in Congress to rush through a really bad bill to extend Section 702, which enables widespread domestic surveillance by the NSA. We recommended letting your elected officials know what a bad bill it was (leading at least one of our commenters to mock us, saying contacting your elected officials is useless). Turns out: it worked (for now). The bill has been taken off the table and won't be voted on today. Senators Rand Paul and Ron Wyden had promised to filibuster such a bill on the Senate side to stop it, and it appears that widespread criticism caused the House to kill the bill for now.

With politically-expeditious timing, Homeland Security Advisor Tom Bossert has pinned the Wannacry attacks on North Korea. The delivery method for the news was odd as well: a "commentary" piece in the Wall Street Journal's op-ed pages.

It's not clear how many times we're going to need to repeat this, but when people call for internet platforms to wave magic wands and get rid of the "bad" people, they may not like how things actually turn out. As you may have heard, last month Twitter rewrote its guidelines, and promised that it would be using those updated guidelines to kick off more "bad" people. Twitter, as a private company can set up its service however it likes, but it was striking how many people were giddily awaiting yesterday when the new rules were set to take effect. There was talk of how Twitter was magically about to become fun and nice again. The reality was a little bit more mundane.A few extremists, like the leaders of the nutty Britain First party in the UK were barred, but lots of others, including "famous" white nationalists were allowed to remain:

As we just got done saying, giant ISPs are well aware that last week's unpopular FCC vote to repeal net neutrality rests on very shaky legal ground. The agency will be facing all manner of lawsuits in the new year from competitors and consumer groups that quite correctly highlight the blatant fraud and bizarre missteps that occurred during the proceeding. Those lawsuits will also argue that the FCC is violating the Administrative Procedure Act by passing a law without proving that the broadband market had changed enough in just two years to warrant such a severe, unpopular reversal (tip: it didn't).As such, ISPs are already pushing hard to codify the FCC's idiotic and unpopular repeal into law. ISPs like Comcast are claiming they're just so interested in protecting the open internet (after spending millions to dismantle real net neutrality rules) that a law their lobbyists likely wrote is the only path forward now. But these bills have one purpose: to prevent any future FCCs or Congressional lawmakers from passing meaningful rules down the road.Enter Tennessee Representative Marsha Blackburn, who has for years been a glorified rubber stamp for AT&T and Comcast, going so far as to support state-level laws that hamstring competition and erode local rights. Today Blackburn unveiled the "Open Internet Preservation Act" (pdf), which, as we predicted, bans things like outright throttling, but ignores numerous other possible avenues of abuse by ISPs, including zero rating, paid prioritzation, and interconnection shenanigans. The bill also tries to ban states from trying to protect net neutrality in the wake of federal apathy, another gem ISPs like Comcast have been coincidentally lobbying for the last few months.Blackburn made sure to leak first looks at her bill to news outlets she knew would be sure to parrot any number of net neutrality falsehoods that were debunked years ago:

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This is, unfortunately, no surprise at all. It happens every time that a key surveillance provision is set to sunset. Rather than have any real public debate about it, the "surveillance hawks" in Congress refuse to do anything until there are just weeks left until the provision would expire... and then try to ram through a renewal. And, indeed, that's exactly what's happening. While people who are concerned about these surveillance powers have been urging debate on possible reform for basically two years, Congress has mostly ignored all such requests. Instead, they pushed for a very weak "reform" bill... and then did nothing about it for months. And now, they apparently announced just last week a plan to vote on a toothless bill today. No debate, no notice, no discussion. As EFF notes, this bill is bad:

We've pretty well established by now that the FCC's repeal of net neutrality is being justified by a lot of fluff and nonsense with no factual basis in reality. Like claims that net neutrality killed sector investment, which are easily debunked by SEC filings, earnings reports, and numerous public CEO comments to investors (who, unlike you, they're legally not allowed to lie to). From Ajit Pai's claims that net neutrality emboldens fascists in North Korea and Iran, to his most recent claim that net neutrality fears were overhyped because Twitter still somehow works, blatant bullshit is the foundation of this entire repeal effort.For years now, one constant bit of bullshit spread by ISPs was the claim that the Obama-era White House somehow "illegally pressured" Tom Wheeler's FCC into passing tougher net neutrality rules. As we noted at the time that claim was nonsensical,since there's no law stopping the White House from expressing its opinion on what policy should be. From Bill Clinton urging then FCC boss Reed Hundt to ban alcohol ads on TV, to George W Bush telling then FCC boss Michael Powell to deregulate media ownership, such behavior is historically perfectly normal.Again, this fact didn't stop ISPs and their water carriers in Congress and key media outlets from repeatedly trying to claim that Obama engaged in all manner of shifty behavior to force the FCC to create the rules. The Wall Street Journal in 2014, for example, professed that "unusual, secretive efforts inside the White House" caused FCC boss Tom Wheeler to shift his position from weaker, Title I based rules, to tougher Title II based rules. The idea that Obama's White House had undertaken a covert "federal takeover of the internet" quickly became gospel across countless partisan echoverses.The criticism was enough to drive investigations in both the Senate and by the FCC’s Inspector General. And while nobody from either government body could be bothered to tell the public the outcome of these investigations, Motherboard recently filed several FOIA requests that now show the outcome of these investigations wound up being a giant bupkis:

Going Brexit is to swear off logic, apparently. TorrentFreak reports that, in addition to everything else the UK's newfound independence will muck up, it's going to start doing an even more horrendous job policing the internet.

We're nowhere closer to reaching a Unified Theory of Police Body Cameras, but at least we're still compiling data. So far, there's no definitive proof body cameras reduce police misconduct, but there's at least some evidence they're better than nothing at all.Early adopters showed a surprising amount of reduction in use of force by officers. A 2012 study in Rialto, California showed a 67% drop in force usage by officers wearing cameras. Since then, results have been all over the map. The largest study conducted to date -- covering the Washington DC PD's rollout of its body camera pilot program -- suggested cameras weren't reducing force usage or lowering the number of citizen complaints. A second study of the same group seemed to indicate the problem wasn't that cameras had no deterrent effect, but that officers were still very selective about camera activation -- hence the lack of improvement.Another study has been released -- this one compiled by UNLV and the Center for Naval Analyses. It shows mainly positive results from the Las Vegas PD's body camera program. (via Grits for Breakfast)

A two-year legal battle of German intelligence agency metadata collections has ended. And the German Federal Intelligence (BND) agency has lost.

Even those of us who believe that the internet is overall a tremendous positive force when it comes to discourse and culture can admit that, in many parts of the online world (and really the world in general), having constructive and substantive conversations is... difficult. And that issue has most certainly come to the fore in the last couple of years. So this week, we're joined by author Barry Eisler (one of our first and most frequent podcast guests) to tackle the challenge of framing important debates in productive ways, and actually getting somewhere with them.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.