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This month's Stupid Patent shows what happens when the patent system strays outside its proper boundaries. US Patent No. 8,706,513 describes a "fungible basket of investment grade gems" for use in "financial instruments." In other words, it's a rating and trading system that attempts to turn diamonds into a tradeable commodity like oil, gold, or corn.Of course, creating new types of investment vehicles isn't really an invention. And patents on newfangled financial techniques like this were generally barred following Bilski v. Kappos, a 2008 Supreme Court case that prevents the patenting of purely financial instruments. Since then, the law has become even less favorable to abstract business method patents like this one. In our view, the '513 patent would not survive a challenge under Bilski or the Supreme Court's 2014 decision in Alice v. CLS Bank.Despite its clear problems, the '513 patent is being asserted in court—and one of the people best placed to testify against the patent may not be allowed to.The public's right to challenge a patent in court is a critical part of the US patent system, that has always balanced the exclusive power of a patent. It's especially important since patents are often granted by overworked examiners who get an average of 18 hours to review applications.But there are two types of persons that, increasingly, aren't allowed to challenge problematic patents: inventors of patents, and even partial owners of patents. Under a doctrine known as "assignor estoppel," the Federal Circuit has barred inventors from challenging patents that they acquired for a former employer. Assignor estoppel was originally meant to cover a narrow set of circumstances—inventors who engaged in fraud or bad dealing, for instance—but the nation's top patent court now routinely applies it to prevent inventors from challenging patents.Patent scholar Mark Lemley flagged this problem in a 2016 paper, noting assignor estoppel could be used to control the free movement of employees or quash a legitimate competitor. "Inventors as a class are put under burdens that we apply to no other employee," he wrote. "If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer."In this case, the Federal Circuit's expansive view of assignor estoppel may prevent a person who owned just a fraction of a patent from fighting back when that patent gets used in an attempt to quash a competing business.Despite the fact that this gemological trading system should never have been granted a patent, so far, it's being successfully used by its owner to beat up on a competitor—and the competitor could be barred from even challenging the patent by assignor estoppel.Competing Diamond CompaniesGemShares was created in 2008 to market "diamond investment products." The original partners were joined in business by a man named Arthur Lipton, who bought 20% of GemShares in 2013. He struck a deal not to compete with GemShares.GemShares says [PDF] Lipton broke that deal in 2014, when he started working on his own project, a "secure diamond smart card," and filed for patents related to it. But in addition to breach of contract, GemShares sued for patent infringement. They said Lipton's new business violated the '513 patent.The litigation also involves breach of contract claims, and allegations of fraud from Lipton's former partner. Without getting into the weeds on all that, the defendant in this case may not even be allowed to argue that the "gem financial product" patent is invalid. Earlier this month, the judge overseeing the case issued an order [PDF] noting that "the Federal Circuit has upheld the doctrine of assignor estoppel, which precludes an inventor-assignor of a patent sued for infringement from arguing the patent's invalidity."The Federal Circuit has made assignor estoppel so powerful, in fact, that Lipton's 20% ownership contract with GemShares may be enough to stop him and his lawyers from mounting an invalidity defense.It's bad policy to stop the public from challenging bad patents, and assignor estoppel should only be used in narrow cases, like outright fraud. As it's been applied by the Federal Circuit, it's destined to be used in exactly the way that Lemley warned it would—as an anticompetitive cudgel.We agree with the brief signed by Lemley and more than two dozen other law professors [PDF] in EVE-USA, Inc. v. Mentor Graphics Corp., arguing that the Supreme Court should take up this issue and keep assignor estoppel within the narrow limits it originally intended.Reposted from EFF's Stupid Patent of the Month series.

You may recall that in 2014, bit-actor Frank Sivero of Goodfellas semi-fame sued Fox over a recurring character that appeared on The Simpsons. Sivero says several writers for the show were living next door to him just before Goodfellas began filming, at a time he says he was creating the character of Frankie Carbone. He then claims that the writers for The Simpsons were aware of this work and pilfered it to create the character Louie, who is one of Fat Tony's henchmen. Because of this, he claimed that the show had appropriated his likeness, the character he was creating, and decided he was owed $250 million from Fox for all of this. For its part, folks from The Simpsons claimed that Louie is an amalgam of stereotypical mobster characters and a clear parody of those characters.In response, Fox asked a Los Angeles Superior Court to strike the complaint on anti-SLAPP grounds. In 2015, the court agreed, the ruling resulting from such memorable exchanges as:

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country's government to obtain them. After all, the US government certainly doesn't want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.Or maybe it does. Or maybe the DOJ just doesn't care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986's SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn't a search. From the transcript [PDF]:

In late 2016, we wrote about the positively silly case that lawyer Harry Jordan filed on behalf of his client, Dawn Bennett, in which she sued Google because a guy she had once hired to do some search engine optimization work for her, and with whom there was a falling out, later wrote a mean blog about her and her company. As we noted, Bennett did not sue that person -- Scott Pierson. Instead, she and Harry Jordan went the Steve Dallas lawsuit way of filing against some tangential third party company, because that company is big and has lots of money. In this case, it meant suing Google, because Pierson's blog was hosted by Google.As we noted, this would be an easy CDA 230 win, because Google is not at all liable for what bloggers using its blog hosting do (we also noted that the lawsuit botched the legal meaning of "defamation" -- which is generally not a good thing to do in a defamation lawsuit). And thus it was of little surprise to see the lawsuit dismissed last summer. It was an easy ruling to make given the status of CDA 230 (which, yes, is now under threat). But, Bennett appealed. And... the results of the appeal are exactly the same as the results in the district court. Case dismissed, quick and easy (in just 10 pages), because CDA 230 makes it obvious that Google is not liable.Still, as law professor Eric Goldman notes in his post about this ruling, the DC Circuit makes some useful statements about CDA 230 and how it works.

While Verizon, Comcast and AT&T may have convinced the FCC to repeal net neutrality, they've still got a steep, uphill climb before they can be comfortable that the repeal is on solid footing, meaning we still have some time before they begin taking full anti-competitive advantage. The FCC's repeal still needs to survive a wall of legal challenges from consumer groups, Mozilla, and nearly half the states in the union. From there, ISPs need to ensure that a future FCC or Congress doesn't just pass new, tougher rules all over again.That's why Verizon, Comcast and AT&T are all now pushing for a new "net neutrality law" in name only. While the same ISPs that gutted these popular consumer protections insist they're just interested in "putting this contentious issue to bed," the reality is they want a law that pre-empts any future federal or state attempts to protect consumers. As usual, they've managed to get industry marionettes like Martha Blackburn behind the legislative push. Since they've long since demolished any credibility on this subject, there's been little traction in these legislative efforts so far.But with the power they wield over Congress, they remain dedicated to the cause all the same, and they know full well that many of these kinds of legislative efforts are won by brutal repetition. Enter AT&T, who this week penned yet another blog post insisting that they really love net neutrality just like you!:

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The UK government has rolled out an auto-flag tool for terrorist video content, presumably masterminded by people who know it when they (or their machine) see it and can apply the "necessary hashtags." The London firm behind it is giving its own product a thumbs-up, vouching for its nigh invincibility.

It can't be overstated that the broadband industry isn't just trying to kill net neutrality, it's trying to gut most meaningful federal and state oversight of entrenched telecom monopolies. While Ajit Pai dismantled consumer protections at the FCC, his "Restoring Internet Freedom" order also ironically attempts to ban states from holding ISPs accountable for privacy, net neutrality, or other anti-competitive behavior. With neither adult regulatory supervision or healthy organic competition in place to keep bad actors in line, the end result will likely be even worse behavior than the kind of Comcast shitshows we've grow used to.But there's one part of this effort that just faced a notable setback.Under Ajit Pai's (read: the broadband industry's) proposal, the FCC would take a step back from overseeing ISPs, ceding any remaining authority to the FTC. What Pai and his ISP friends didn't mention is that the FTC's authority over ISPs is severely limited, or that AT&T has spent the last four years in court trying to demolish what authority the FTC does have. That this would leave consumers almost entirely unprotected from monopoly behavior must have simply slipped Ajit Pai's mind during his endless sales pitches for his unpopular repeal.AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very absurd and Schrodinger-esque tap dance.At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America:

Could this be the answer to FBI Director Chris Wray's call for broken device encryption?

A couple of weeks ago, Techdirt wrote about Marriott International kowtowing to China because of a drop-down menu that dared to suggest that Tibet might be a country. We noted that a newly-confident and increasingly aggressive China might well start finding more of these alleged "insults" to use as pretexts for asserting itself internationally. And sure enough, that's already happened again, this time with Mercedes-Benz. As a New York Times story explains, the German car maker posted an image of a white car parked on a beach, along with a quotation popularly ascribed to the Dalai Lama -- "Look at the situations from all angles, and you will become more open. #MondayMotivation" -- to its official Instagram account.Becoming "more open" by looking at things from this particular angle didn't go down at all well in China, where the authorities regard Tibetan veneration of the Dalai Lama as a threat to political stability in the region. According to the New York Times, the post provoked an "outcry" from Chinese internet users, many of whom pledged to boycott the Mercedes brand. It's hard to gauge to what extent Chinese citizens did this spontaneously, or whether some of those protesting online were part of the authorities' well-oiled Internet surveillance and propaganda machine. In any case, what mattered was that the Chinese government was not happy at all, and Mercedes-Benz realized that if it wanted to carry on selling its cars in China, it had better start apologizing quickly and deeply. This it did by posting to its official Weibo account, translated here by the Shanghaiist:

As we've been discussing, this afternoon, the House voted both on Rep. Mimi Walters' bad amendment to attach SESTA to FOSTA, and then on the combined bill -- and both sailed through Congress. Somewhat incredibly, this happened even though the Justice Department weighed in with a last minute letter saying that the language in the combined SESTA/FOSTA is so poorly drafted that it would actually make it more difficult to prosecute sex traffickers, and also calling into question whether or not the bill was even Constitutional.You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:

When a tech company is huge and dominant, it can feel like competing with them is impossible. Worse still, it can sometimes feel like innovating is impossible, since they might just step in and take over as soon as someone executes on a good idea. Once upon a time this was how startups felt about Microsoft, while today it's more likely to be Google or Facebook. But no company, no matter how mighty, is immune to being disrupted — and figuring out how is the subject of this week's episode.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.

Lately I've been enjoying watching re-runs of Rowan & Martin's Laugh-In. It's somewhat reassuring to watch a previous generation get through a period of political angst as we go through this current one, especially as there are quite a few parallels that can be drawn.I mention this because as people call for Amazon, Apple, Roku, and YouTube to drop NRA-TV, I realize that we've seen calls for censorship like this before. What's happening today:

Back in November, we wrote about a pure SLAPP lawsuit filed by Stanford professor Mark Jacobson against another scientist, Christopher Clack, and the National Academy of Sciences. Jacobson claimed that Clack and others defamed him by publishing a rebuttal of a paper that he and some others had published earlier. In other words, this was a standard kind of academic dispute, with different scientists taking different positions. Rather than continue to debate it in academic settings, Jacobson sued the critics. We went through all of the details of the case, and why it was so ridiculous in the original article, so we won't rehash that here. However, we will note that Jacobson has now dropped the case, but in doing so published an FAQ where he still insists that it was the proper thing to do in the first place:

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Cool. Let's just throw more legislation at the problem.

The NRA last week thought it would be a good idea to give FCC boss Ajit Pai an award for killing net neutrality. More specifically, the NRA gave Pai the Charleton Heston Award for Courage at the CPAC conference for killing the popular consumer protections. The entire affair was a tone deafness supernova from beginning to end, with American Conservative Union (ACU) Executive Director Dan Schneider making it abundantly clear that he and other attendees have absolutely no coherent idea what net neutrality even is. Schneider went so far as to declare the unpopular agency boss the "most courageous, heroic person that I know":

In a time when law enforcement officials are calling Apple "evil" and demanding access to encrypted communications, it doesn't make much sense for the company to be doing this.

Two new bills have been introduced in the Kansas state legislature with the intent of forcing law enforcement agencies to turn over body camera footage in a timely manner. They appear to have been prompted by the family of a man shot and killed by police officers late last year. It took police 11 weeks to turn over footage of the incident. Even then, it wasn't as though the footage was given to the executor of Dominique White's estate. Instead, White's father was "granted access" to the the body cam footage, which means he was able to watch the video on police equipment at a police station by himself with no other surviving family members.This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE's argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

Last spring, a hacker who had illicitly obtained data from malware/spyware company FlexiSpy shared some of it with Motherboard. In the trove of customer data, it was discovered that one purchase was linked to an officer in the UK Metro Police.FlexiSpy is powerful malware, capable of gathering communications from multiple messaging services, as well as providing GPS location, emails, and phone call records. The purchase of this malware is questionable, considering it's regulated under the UK's Computer Misuse Act. The most obvious limitation of the malware is the fact that it requires physical access to targeted devices. But phones, tablets, and computers are seized all the time by law enforcement officers, and they're sometimes returned to their owners after being searched. Malware like this would allow officers to hitch a virtual ride on someone's phone or laptop, seeing everything they see.Motherboard asked the Metro Police for more details on this spyware purchase. Unsurprisingly, the Police didn't want to talk about it.

Remember Bob Murray? He's the Ohio-based coal mining CEO who threatened and then sued John Oliver and HBO over this fun episode of Oliver's show, Last Week Tonight, which discussed the ridiculousness of our President's focus on "coal jobs." However, it also spent a fair bit of time talking about Bob Murray, Murray Energy, and how his actions did not appear to support actual coal miners. A prominent part of the story features the phrase (originally written by a coal miner at Murray Energy as part of the process to void a bonus check) "Eat Shit, Bob."As we noted, this was an obvious SLAPP suit with a bunch of ridiculous claims. On top of that, Murray and Murray Energy also sought an injunction silencing Oliver and HBO, which was classic prior restraint. There was some procedural back-and-forth as HBO sought to remove the case to federal court, which failed. State courts can be more of a crap shoot, but this was such an obvious SLAPP suit that it does not appear to have mattered at all.On Friday, the judge sent a letter to the various parties which I would say is the judicial equivalent of telling Bob and his lawyers to "Eat Shit." The letter makes it clear that the judge is going to dismiss the case, and agrees entirely with the arguments HBO made in its motion to dismiss:

Longtime Techdirt readers know how important Section 230 is for the Internet to work, as well as many of the reasons why the proposed SESTA bill threatens the operation of the law, and with it the operation of the Internet. But especially for people less familiar with the ins and outs of Section 230, as the law hangs in the balance, we want to take moment to explain why it's something that everyone should want to preserve.These days a lot of people are upset with Facebook, along with many other of its fellow big Internet companies. Being upset with these companies can make it tempting to try to punish them with regulation that might hurt them. But it does no good to punish them with regulation that will end up hurting everyone – including you.Yet that’s what the bill Congress is about to vote on will do. SESTA (or sometimes SESTA-FOSTA) would make changes that reduce the effectiveness of Section 230 of the Communications Decency Act. While a change to this law would certainly hurt the Facebooks of the world, it is not just the Facebooks that should care. You should too, and here's why.Section 230 is a federal statute that says that people who use the Internet are responsible for how they use it—but only those people are, and not those who provide the services that make it possible for people to use the Internet in the first place. The reason it's important to have this law is because so many people – hundreds, thousands, millions, if not billions of people – use these services to say or do so many things on the Internet. Of course, the reality is, sometimes people use these Internet services to say or do dumb, awful, or even criminal things, and naturally we have lots of laws to punish these dumb, awful, or criminal things. But think about what it would mean for Internet service providers if all those laws that punish bad ways people use the Internet could be directed at them. Even for big companies like Facebook it would be impossibly expensive to have to defend themselves every time someone used their services in these unfortunate ways. Section 230 means that they don't have to, and that they can remain focused on providing Internet services for all the hundreds, thousands, millions, if not billions of people – including people like you – who use their services in good ways.If, however, Section 230 stops effectively protecting these service providers, then they will have to start limiting how people can use their services because it will be too expensive to risk letting anyone use their services in potentially wrongful ways. And because it’s not possible for Internet service providers to correctly and accurately filter the sheer volume of content they intermediate, they will end up having to limit too much good content in order to make sure they don’t end up in trouble for having limited too little of the bad.This inevitable censorship should matter to you even if you are not a Facebook user, because it won't just be Facebook that will be forced to censor how you use the Internet. Ever bought or sold something on line? Rented an apartment? Posted or watched a video? Found anything useful through a search engine? Your ability to speak, learn, buy, sell, complain, organize, or do anything else online depends on Internet services being able to depend on Section 230 to let you. It isn't just the big commercial services like Facebook who need Section 230, but Internet service providers of all sorts of shapes and sizes, including broadband ISPs, email providers, online marketplaces, consumer review sites, fan forums, online publications that host user comments… Section 230 even enables non-commercial sites like Wikipedia. As a giant collection of information other people have provided, if Section 230’s protection evaporates, then so will Wikipedia's ability to provide this valuable resource.Diminishing Section 230's protection also not only affects your ability to use existing Internet services, but new ones too. There’s a reason so many Internet companies are based in the United States, where Section 230 has made it safe for start-ups to develop innovative services without fear of crippling liability, and then grow into successful businesses employing thousands. Particularly if you dislike Facebook you should fear a future without Section 230: big companies can afford to take some lumps, but without Section 230's protection good luck ever getting a new service that's any better.And that's not all: weakening Section 230 not only hurts you by hurting Internet service providers; it also hurts you directly. Think about emails you forward. Comment threads you allow on Facebook posts. Tweets you retweet. These are all activities Section 230 can protect. After all, you're not the person who wrote the original emails, comments, or tweets, so why should you get in trouble if the original author said or did something dumb, awful, or even criminal in those emails, comments, or tweets? Section 230 makes many of the ordinary ways you use the Internet possible, but without it all bets are off.

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Sometime tomorrow, it's widely expected that the House will approve a terrible Frankenstein bill that merges two separate bills we've spoken about, FOSTA and SESTA. The bills are bad. They will not actually do what the passionate and vocal supporters of those bills claim they will do -- which is take on the problem of sex trafficking. Neither bill actually targets sex traffickers (which, you know, one would think would be a prime consideration in pushing a bill that you claim will take on sex trafficking). Instead, they seek to hold third parties (websites) responsible if people involved in sex trafficking use them. This has all sorts of problems that we've been discussing for months, so I won't reiterate all of them here, but suffice it to say if these bills were really about stopping sex trafficking, they sure do a horrible job of it. If you want to try to stop these bills, check out EFF's action page and please call your Congressional Rep., and let them know they're about to do a really bad thing. If you want more in-depth information, CDT has you covered as well. Finally, Professor Eric Goldman details piece by piece what this Frankenstein bill does and how bolting SESTA and FOSTA together make two bad bills... even worse, and even less clear as to what it actually does.Over the last week, I've spoken, either on background or off the record, to over a dozen different people on a variety of sides and in a variety of different positions concerning these bills, trying to understand how we got to the point that horrible bills that will undoubtedly do serious harm to the internet -- without actually doing much of anything to stop sex trafficking -- are actually likely to get passed. And the story that emerges is one of a series of blunders, misunderstandings, strategic errors and outside forces that drove things in this direction -- helped along quietly by some anti-internet industries that were all too willing (if not eager) to exploit legitimate concerns about sex trafficking to get what they wanted (without actually helping sex trafficking victims).Let's start with the blundering. There were both large scale blunders and small scale ones. The large scale blunder is that too many folks who work at the big internet companies failed to recognize how the narrative was shifting on "the internet" over the past two years or so. Despite some efforts to warn people that the tide was shifting, many in the internet world insisted it was all overblown. And, to some extent, they are right. Recent polls show that the public still views all the big internet firms very favorably. But, sometimes a narrative can trump reality and, over the past year especially, the "narrative" is that the public doesn't trust those companies anymore. Some of that is driven by the results of the 2016 election and the (exaggerated) claims of "fake news."But a narrative can be so powerful that even if it doesn't match up with reality, it can become reality as more and more people buy into it. And, right now, many in the media and in politics have both grabbed onto the "people no longer trust big internet" narrative with a chokehold and won't let go. And the big internet companies seemed wholly unprepared for this.The second blunder appears to be more specific to Facebook -- and it involves a complete misunderstanding of CDA 230. Last week, I pointed to a big Wired cover story about Facebook, where I called out the reporters for explaining CDA 230 exactly backwards -- falsely claiming that CDA 230 meant they couldn't take a more proactive role in moderating the site. Of course, that's wrong. CDA 230 is explicitly why they can take a more active role.However, since posting that article, I've heard from a few people at Facebook who told me that the view expressed in the article was actually the view within Facebook. That is, Facebook's own legal and policy team pushed the idea internally that heavy moderation may run afoul of CDA 230. This is wrong. But, incredibly, Facebook's own confusion about how the law works may now make their incorrect belief a reality, as it may have helped lead to the tech backlash, leading to things like SESTA, which would put in place a "knowledge" standard for losing CDA 230 immunity... meaning that companies will be much less proactive in monitoring.That's a huge, huge blunder.Next up were the strategic errors. Back in November, the Internet Association -- the trade group that represents the largest internet companies (but not the smaller ones) surprised many people by coming out in favor of a modestly update version of SESTA. As we pointed out at the time, this was selling out the internet way too early and way too cheaply. There are a few different explanations of how this happened making the rounds, but one that has come up repeatedly is that Facebook threw in the towel, believing two things (1) that it's getting hit so hard on so many things, it couldn't risk (falsely) being labeled as "soft on sex trafficking" and (2) it knew that it could survive whatever legal mess was created by SESTA. Some smaller internet companies believe that this second point is one that Facebook actually likes because it knows that smaller competitors will be hobbled. To say that these companies are pissed off at Facebook and the Internet Association would not accurately convey the level of anger that came across. But it wasn't just Facebook. We heard that a few other Internet Association members -- mainly those who don't rely quite as much on CDA 230 -- wanted to just "get past" the issue, and supported the Internet Association cutting whatever deal it could and moving on.This has greatly pissed off a lot of people -- including many other (smaller) Internet Association members who feel that their own trade association sold them out. And it has greatly pissed off many other groups, including other trade groups representing internet organizations and especially public interest, civil society and free speech organizations, who historically have aligned well with the Internet Association on efforts to protect an open internet. Within these groups, a feeling of trust with the Internet Association has been broken. There is plenty of support for the idea that the Internet Association, with the help of Facebook, got played and made a huge strategic mistake in settling. The Internet Association wouldn't go on record with me, but suffice it to say the organization disputes my characterization of what happened and would really, really prefer I didn't write this post. However, after talking to multiple other people who were deeply involved in negotiations over SESTA, there is a general feeling that the Internet Association caved and did so way too quickly when better, more workable solutions were still on the table. But, in caving, most of those discussions were tossed aside. Many people are mad that the Internet Association, with the help of Facebook, seemed to get desperate and got played right into a bad deal that harms the internet.And note that unlike the RIAA/MPAA, which the Internet Association was basically set up to mimic as an opposing force, the Internet Association refused to take a hard line stance on this. The RIAA and MPAA don't exactly have a history of caving on issues (even when they should). The Internet Association folded, and many people involved in protecting and building the internet are not at all happy about this. And just as the internet companies failed to recognize the power of the narrative, I'd argue that the Internet Association has failed to grasp the level of anger it has generated with its moves over the last few months as well.Speaking of the MPAA, its fingerprints are all over SESTA, even as it's tried to keep them mostly out of sight. For years, part of the MPAA's "strategy" against the internet disrupting its business was to tar and feather internet companies for enabling illegal activity totally unrelated to copyright infringement (after realizing that whining about piracy wasn't winning them any sympathy). They tried to focus on drug sales for a while. And terrorism. But it appears that sex trafficking was finally the one that caught on in Congress.And that leads to the final point: the convenient exploitation of all of the above by "foes" of the open internet and free speech. The MPAA, officially, has been pretty quiet about SESTA, though some of its studios officially endorsed the bill. Going through lobbying records, Disney appears to be the only major studio that officially lobbied on behalf of SESTA, but multiple people suggested that former top 20th Century Fox lobbyist Rick Lane was heavily involved as well. While I don't see his name in any official lobbying disclosure forms, a group pushing for SESTA officially thanked Lane for helping them go around Capitol Hill to stump for SESTA, calling him an "extraordinary partner." And, not surprisingly, Lane recently posted a giddy LinkedIn post, excited about tomorrow's vote, while totally misrepresnting both what SESTA does and the reasons many are concerned about it. Oh, and let's not forget Oracle. The company that has seemingly decided that attacking internet companies is more important than actually innovating has been one of the most vocal supporters of SESTA, and also lobbied heavily in favor of it in Congress.Thus, a key aspect of how the internet works -- which many of this bill's supporters don't actually understand -- is at serious risk. The internet companies probably should have realized sooner how the narrative was shifting. They probably should have better understood -- and explained -- how CDA 230 actually enables more monitoring and filtering, not less. But, that's not what happened. The Internet Association could have continued to fight, rather than giving in. But none of that happened, creating an unfortunate perfect storm to do serious harm to the internet. And, again, perhaps that would all be worth it if SESTA would actually help stop sex trafficking. But it will almost certainly make the problem worse.And, that doesn't even get into the fact that the company almost always cited as an example of why we need SESTA, Backpage.com, is almost certainly about to face a ruling in a case saying that Backpage is not protected by CDA 230. The fact that Congress is unwilling to even wait and see how that case turns out (or what a grand jury that is supposedly investigating Backpage decides) suggests that this bill has never actually been about stopping sites like Backpage, but about punching a huge hole in CDA 230 and creating havoc for tons of internet platforms -- especially smaller ones.This situation is a pretty big mess, and it wasn't helped by misjudgments and strategic errors by various internet companies and the Internet Association. But the effort to undermine aspects of the internet also has some "help" from those who are gleeful about how this is all working out. And it's not because they think this will do a damn thing to stop sex trafficking. And it's really too bad, as the end result of this bill may make it that much harder to actually deal with sex trafficking online.

Early last year, Charter Spectrum was sued by New York Attorney Eric Schneiderman for selling broadband speeds the company knew it couldn't deliver. According to the original complaint (pdf), Charter routinely advertised broadband speeds executives knew weren't attainable -- while simultaneously refusing to upgrade their network to handle added consumer demand (a problem that only got worse in the wake of its merger with Time Warner Cable and Bright House Networks despite promises of ample "synergies"):

The CBP's habit of moving further and further inland in their search for deportees, drugs, and water to dump on the ground isn't making it any new friends. Residents of small towns near the border are getting very sick of having to assert their citizenship multiple times a day thanks to Checkpoint Charlie camping out on every road out of town.The federal government doesn't care. No sacrifice is too great to demand from citizens to keep this country safe from job seekers, victims of violence, and the occasional MS-13 gang member. Rights are optional within 100 miles of US borders and they're completely nonexistent within 25 miles of crossing points. It's this 25-mile cutoff that's key to federal lawsuit arising from trespassing CBP officers and the spy cam they placed on the property of a local who's spent years complaining about the CBP's incursions.Cyrus Farivar covers the story of Texas rancher Ricardo Palacios at Ars Technica. And it's a good one. Palacios discovered a camera on his property and took it down. Shortly thereafter, the CBP and the Texas Rangers rang him up, demanding the return of their surveillance camera. Palacios refused and was threatened with criminal charges.

This week, we've got a double winner on the insightful side, with PaulT taking both of the top spots. In first place, it's his response to the idea that school shootings can be blamed on video games:

Five Years AgoThis week in 2013, the Harlem Shake was still taking the world by storm, and serving as a great example of selective copyright enforcement. WIPO negotiations over access to copyrighted works for the disabled were, as usual, shrouded in secrecy, while an anti-piracy group was threatening the Pirate Party with criminal charges, the RIAA was moaning about Google's lack of an anti-piracy magic wand, and ISPs were gearing up to enact the Six Strikes program. On the other hand, the European Copyright Society was arguing against the idea that linking and framing are forms of infringement, a court tossed out an attempt to block CNET from offering BitTorrent downloads, and the CCIA was making the interesting argument that Germany should be on the Special 301 naughty list... for its attacks on fair use.Ten Years AgoThis week in 2008, torrent users were fighting back against Comcast's traffic shaping program by amping up their encryption efforts, while Comcast was weakly defending the practice by rolling out non-experts. Australia joined the list of countries considering the idea of kicking file sharers off the internet (even as, the same week, they declared their previous $89-million internet filtering plan a failure). Meanwhile, nobody could actually explain why stopping file sharing is an ISP's responsibility — indeed, as the US freaked out about P2P, the EU was investing in it; and as ISPs were starting to insist they can't offer unlimited access, mobile operators were pivoting to do exactly that.Fifteen Years AgoThis week in 2003, the Lexmark printer ink case was waking some people up to the DMCA's potential for abuse. The Turner Broadcasting chairman who called all TiVo users thieves was stepping down, while Hollywood was trying to recruit piracy informants, and Congress was trying to hash out a weak "compromise" on copyright. Meanwhile, the news arrived that Overture would be buying Alta Vista, in what appeared to be another nail in the erstwhile search giant's coffin — right around the same time that people were starting to seriously talk about the idea of a Google IPO (which would arrive the following year).

Another challenge of the NIT (Network Investigative Technique) warrant used by the FBI during its investigation of a dark web child porn website has hit the appellate level. A handful of district courts have found the warrant used invalid, given the fact that its reach (worldwide) exceeded its jurisdictional grasp (the state of Virginia, where it was obtained). That hasn't had much of an effect on appeals court rulings, which have all found the warrant questionable to varying degrees, but have granted the FBI "good faith" for violating the jurisdictional limits the DOJ was attempting to have rewritten (Rule 41 -- which governs warrant jurisdictional limits, among other things) to allow it to do the things it was already doing.Even though the FBI had to have known searches performed all over the world using one Virginia-based warrant violated Rule 41 limits, appellate judges have declared the FBI agent requesting the warrant wasn't enough of a legal expert to know this wasn't allowed. Two appeals courts have stated suppressing the evidence is pointless because the law changed after the jurisdiction limit violation took place. The appellate decisions have been troubling to say the least, providing further evidence that the good faith exception is the rule, rather than the outlier.The latest decision [PDF] dealing with the NIT warrant comes from the Third Circuit Appeals Court. It, too, finds the warrant questionable. And it states the government has agreed the warrant was not valid under Rule 41(b).

It's no secret that Valve's Steam platform is the dominant marketplace for PC video games. Much comes along with that status, including the strategies and metrics studios must employ to get their games noticed on Steam. One of the important metrics for recognition is Steam reviews. And it's not just the review scores themselves that are important, but actually getting reviews -- any reviews -- to begin with is a big deal.So it's no surprise that game studios strategize on how to get their games in enough customer hands to generate reviews. Still, one studio's strategy has massively backfired. Insel Games out of Malta recently released Wild Buster, it's latest title. Sadly, in the all important initial release window, the game was not generating enough reviews to result in a general review score on the game page. Those scores are often used by consumers to quickly decide whether a title deserves their attention at all and a lack of a score can indicate that the game isn't good enough to even warrant a look. Insel's CEO, Patrick Steppel, decided to address this with a strongly-worded email to his own staff insisting that they all buy the game and review it, despite having had a hand in making the game. If employees refused to do this, Steppel warned that it could mean that they would no longer have a job at the studio.

In the annals of stupid legislation, California's attempt to fight ageism at Hollywood studios by targeting third-party websites and using the First Amendment as a doormat will secure a prominent place in infamy. Rising from the ashes of a failed lawsuit brought by an actress who claimed IMDb cost her untold amounts of wealth by publishing her age, the law basically said IMDb couldn't publish facts on its website. Those pushing the legislation included the Screen Actors Guild, which apparently doesn't have the spine to stand up to studios and target them for discriminating against actors and actresses.Last year, IMDb secured a temporary injunction against the state of California, forbidding it from enforcing the law while the courts sorted out its constitutionality. That day has arrived. A federal court has declared the law unconstitutional and permanently blocked California from going after IMDb because Hollywood producers participate in discriminatory hiring. (h/t Jacob Gershman)The decision [PDF] is short. It takes only six pages for the district court to destroy the state's arguments. First, it tells the state it's not going to apply a lower First Amendment standard of scrutiny to its awful law.

Ron Wyden is at it again. Sending pesky letters to government officials who appear to be completely falling down on the job. The latest is asking Customs and Border Patrol why it's still not verifying the e-passport chips that have been in all US passports -- and in all countries on the visa waiver list -- since 2007 (hat tip to Zach Whittaker). The letter points out that the US government pushed hard for these chips... and then never bothered to check to make sure no one has tampered with them.

One of the perennial questions around here is what companies should do about unauthorized copies of physical products. As readers will know, on Techdirt we don't think automatically filing lawsuits is the way to go. This little vignette from the New York Times reveals an alternative approach that is smarter and more remunerative:

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1-800-LAWFIRM's oblique assault on Section 230 continues. This firm, along with Excolo Law, have been behind several Plantiff v. Social Media lawsuits seeking to hold Facebook, Twitter, YouTube, etc. responsible for acts of terrorism. The legal theories are as terrible as they are long-winded. In an effort to route around Section 230 immunity, these firms have tried to portray the mere existence of terrorist groups on social media platforms as active material support for terrorism by tech companies. But Section 230 itself is also targeted, just in case the plaintiffs happen to luck into a federal judge willing to punch holes in immunity.So far, none of these efforts have been successful. The Ninth Circuit Appeals Court recently rang up another loss for 1-800-LAWFIRM, finding none of its arguments credible. Unfortunately, it did not go so far as to reaffirm Section 230 immunity, limiting itself to 1-800-LAWFIRM's novel legal theories about the Anti-Terrorism Act (ATA). But, as Cathy Gellis noted in her coverage of the decision, this isn't necessarily a bad thing. By focusing on the ATA, Section 230 remains undamaged, and doesn't draw the attention of enterprising politicians who might try to "do something" (terrible) to keep terrorists from using social media platforms.Unfortunately, terrorists continue to kill and injure people, providing these law firms with clients hoping to extract payment from tech companies as compensation for death and injury caused by terrorists. As Eric Goldman notes, the Ninth Circuit loss has had no deterrent effect, apparently. But this loss possibly explains why the latest lawsuit [PDF] has been filed in Illinois, rather than in California (where the social media defendants are headquartered) like the law firm's previous attempts. Illinois is the plaintiff's home state, which gives the venue switch some legal grounding. More importantly, it moves the battle to the Sixth Circuit, where 1-800-LAWFIRM has yet to be shut down at the appellate level.The lawsuit is exceedingly long. It runs 128 pages and 663 paragraphs. Is it worth reading? Not really. Not unless you really need a blow-by-blow account of social media use by terrorists over the years, occasionally punctuated with things like this, presumably to remind the judge there's a personal injury lawsuit buried in all this exposition.

A few years back the FCC (under Obama's first FCC boss Julius Genachowski) spent around $300 million on a broadband availability map that did a crap job actually measuring broadband availability. As we noted at the time, the map tended to hallucinate both available competitors and the speeds they could deliver to any address, providing a completely bogus sense of the nation's competitive options. It also failed utterly to include pricing data at ISP behest, lest somebody actually look at the data and realize that a lack of competition drives high prices and abysmal customer service from coast to coast.After efforts to further fund the inaccurate map stalled (you can find the old map sitting unused here), Ajit Pai's FCC this week stated they've dusted off and relaunched the map as part of Pai's purported dedication to the digital divide (the new version is available here for your perusal). An FCC press release (pdf) said the new map offers better data at a lower price than the original:

The thin line that exists between entertainment industry DRM software and plain malware has been pointed out both recently and in the past. There are many layers to this onion, ranging from Sony's rootkit fiasco, to performance hits on machines thanks to DRM installed by video games, up to and including the insane idea that copyright holders ought to be able to use malware payloads to "hack back" against accused infringers.What is different in more recent times is the public awareness regarding DRM, computer security, and an overall fear of malware. This is a natural kind of progression, as the public becomes more connected and reliant on computer systems and the internet, they likewise become more concerned about those systems. That may likely explain the swift public backlash to a small game-modding studio seemingly installing something akin to malware in every installation of its software, whether from a legitimate purchase or piracy.

When you write regularly about lawsuits, you learn very quickly that not all court systems are equal when it comes to allowing modern access to public filings and records. The country is a veritable panoply of an access spectrum, with some districts offering modern e-filing systems and websites to review documents, while other districts are far more antiquated and restrictive. That said, it's hard to imagine a county court system more backwards than that of Chicago's Cook County.

Another paper has been released, adding to the current encryption discussion. The FBI and DOJ want access to the contents of locked devices. They call encryption that can be bypassed by law enforcement "responsible encryption." It isn't. A recent paper by cryptograpghy expert Riana Pfefferkorn explained in detail how irresponsible these suggestions for broken or weakened encryption are.This new paper [PDF] was put together by the National Academies of Science, Engineering, and Medicine. (h/t Lawfare) It covers a lot of ground others have and rehashes the history of encryption, along with many of the pro/con arguments. That said, it's still worth reading. It raises some good questions and spends a great deal of time discussing the multitude of options law enforcement has available, but which are ignored by FBI officials when discussing the backdoors/key escrow/weakened encryption they'd rather have.The paper points out law enforcement now has access to much more potential evidence than it's ever had. But that might not always be a good thing.

Last week was a big week for dramatically bad copyright rulings from the New York federal courts: the one finding people liable for infringement if they embed others' content in their own webpages, and this one about 5Pointz, where a court has found a building owner liable for substantial monetary damages for having painted his own building. While many have hailed this decision, including those who have mistakenly viewed it as a win for artists, this post explains why it is actually bad for everyone.The facts in this case are basically this: the owner of a run-down, formerly industrial building in a run-down neighborhood aspired to do something to redevelop his property, but it would be a few years before the time would be right. So in the meantime he let some graffiti artists use the building for their aerosol paintings. The building became known as 5Pointz, and the artwork on it soon began to attract attention. The neighborhood also began to change, and with the improvement the prospects for redeveloping the property into residences became more promising. From the outset everyone knew that redevelopment would happen eventually, and that it would put an end to the arrangement since the redevelopment would likely necessitate tearing down the building, and with it the art on the walls. As the date of demolition grew closer, the artists considered buying the building from the owner in order to prevent it from being torn down and thus preserve the art. However the owner had received a variance that suddenly made the value of the property skyrocket from $40 million to $200 million, which made the buyout impossible. So the artists instead sued to halt the destruction of their art and asked for a preliminary injunction, which would ensure that nothing happened to the art while the case was litigated. But in late 2013 the court denied the preliminary injunction, and so a few days later the building owner went ahead and painted over the walls. The painting-over didn't end the litigation, which then became focused on whether this painting-over broke the law. In 2017 the court issued a ruling allowing the case to proceed to trial on this question. Then last week came the results of that trial, with the court finding this painting-over a "willfully" "infringing" act and assessing a $6.7 million damages award against the owner for it.It may be tempting to cheer the news that an apparently wealthy man has been ordered to pay $6.7 million to poorer artists for damaging their art. True -- the building owner, with his valuable property, seems to be someone who potentially could afford to share some of that wealth with artists who are presumably of lesser means. But we can't assume that a defendant building owner, who wants to be able to do with his property what he is normally legally allowed to do, will always be the one with all the money, and the plaintiff artist will always be the one without those resources. The law applies to all cases, no matter which party is richer, and the judicial reasoning at play in this case could just as easily apply if Banksy happened to paint the side of your house and you no longer wanted what he had painted to remain there. Per this decision, removing it could turn into an expensive proposition.The decision presents several interrelated reasons for concern. Some arise from the law underpinning it, the Visual Artists Rights Act of 1990, an amendment to copyright law that, as described below, turned the logic of copyright law on its head. But there are also some alarming things about this particular decision, especially surrounding the application of high statutory damages for what the court deemed "willful" "infringement," that accentuate everything that's wrong with VARA and present issues of its own.With respect to the law itself, prior to VARA the point of copyright law (at least in the US) was to make sure that the most works could be created to best promote the progress of the sciences and useful arts (as the Constitution prescribed). The copyright statute did this by giving creators economic rights, or rights designed to ensure that if there was money to be made from their works, they would have first crack at making it. The thinking was that with this economic incentive, creators would create more works, and thus the public interest goal of having more works created would be realized.VARA changed this statutory equation for certain kinds of visual works. Instead of economic rights, it gave their creators certain moral rights, including (as relevant for this case), the right to preserve the integrity of their work. This right of integrity includes the right

When a mass shooting occurs, politicians leap into the void with plenty of ideas of how to fix it. They can't -- or won't -- fix it, but they're more than willing to sacrifice other Constitutional amendments to keep the Second Amendment intact. Kentucky Governor Matt Bevins was the first to fill the void with garbage following the latest school shooting by blaming violent video games, despite there being no evidence linking violent acts to violent video games.Now it's Donald Trump blaming school shootings on the First Amendment. During a discussion with Florida legislators (video here), Trump suggested doing something we've been doing for years.

Well, well. For the past few months I've been meaning to write about Disney's silly lawsuit against Redbox, but other stuff kept coming up, and now a judge has ruled against Disney and said that Disney appears to be engaged in copyright misuse. This is in a case that Disney brought -- and it appears to be backfiring badly. Redbox, as you probably know, has kiosks where you can rent DVDs relatively cheaply. It's managed to stay alive despite the traditional DVD rental business disappearing most everywhere else. About a decade ago, Hollywood fought vigorously against Redbox, but the company survived (though being taken over by a private equity firm in 2016), relying heavily on first sale rights, enabling it to legally purchase DVDs and then rent them out.Back in December, however, Disney sued Redbox over taking its business to the next level and including download codes that could be purchased at a Redbox kiosk. Though it took them basically forever, Hollywood studios have finally realized that offering online access with the purchase of movies is a good idea, but they only want the end consumer who is buying a DVD to get access to them. So, Redbox would buy the Disney "Combo Packs" that offered the DVD and a download code, and the would offer the paper codes in kiosks to let renters watch the movie online. They weren't just copying the code and letting anyone use it -- it was still a one-to-one limitation with the purchase in that they would buy the DVD with a paper code on it, and then stuff that paper code into their kiosk delivery pods. Disney argued that this was contributory copyright infringement, even though the code pointed to a legitimate/authorized version of the movie and was legitimately purchased.Redbox hit back by arguing that the First Sale doctrine protected it (as it did with the physical rentals) and that it is free to use the codes in this manner as the legal purchaser. Disney's response to that was that First Sale does not apply to the download code because it's not the copyright-covered work.But Redbox also hit back with a separate punch against Disney, arguing that it was engaged in copyright misuse, a concept we've discussed in the past, but that rarely shows up in cases these days (even though we've argued it should be used more often). The basic argument was that Disney was over-claiming what copyright allowed it to exclude in order to stamp out competition. And, (somewhat surprisingly), in the process of denying Disney's demand for a preliminary injunction, the court agrees that Disney is engaged in copyright misuse because it is using its copyright in the movies to restrict what happens to purchases.

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Things had been mostly quiet on the SESTA/FOSTA front for the past few weeks, but apparently that's about to change, as the House leadership has agreed to a plan to rush the bill to a full floor vote next week, by creating a terrible Frankenstein of a bill that solves none of the existing concerns people had -- but creates new ones. If you don't recall, there are competing bills in the House (FOSTA) and the Senate (SESTA) which purportedly both attempt to deal with the problem of human traffickers using internet services to enable illegal trafficking. Both bills have serious flaws in how they attack the problem -- with the potential to actually make the problem of trafficking worse while also screwing up how the internet works (especially for smaller internet services) at the same time.Things had been at a standstill for the past couple months as the House pushed its approach with FOSTA, while the Senate stood by its approach with SESTA. SESTA works by changing Section 230 of the Communications Decency Act to create a huge hole saying that CDA 230 doesn't apply if a site "knowingly facilitates" a violation of sex trafficking laws. If you don't have much experience with how similar laws work on the internet, this might sound reasonable, but in practice it's not. There's a similar "knowledge" standard in copyright law, and we've seen that abused repeatedly to censor all sorts of content over the years. You just need to allege that something violates the law, and a platform seeking to avoid potentially crippling liability is likely to remove that content. As I've noted, if the law passes, almost every internet company will be put at risk, including anyone from small blogs like ours to Wikipedia. The bill's backers seem to think this is a benefit rather than a problem -- which is quite incredible.Until now, the House had been pushing an alternative proposal, called FOSTA, which tried to achieve similar results without punching a giant hole in CDA 230. Instead, it focused on creating a new crime for those with the intent to promote or facilitate prostitution. The intent standard is a much stronger one than the "knowledge" standard. There were still a couple of problems with FOSTA, though. Rather than focusing on sex trafficking, it covered all prostitution, which is too frequently lumped in with trafficking, and worried many in the community of folks supporting the rights of sex workers. But, a larger issue was that this would still open a huge hole for state and local prosecutors to go on massive fishing expeditions if any sort of prostitution related content ended up on any website. Even if they couldn't show intent, they could still bog down almost any internet platform with charges and investigations for quite some time. I mean, even we get people trying to spam our comments all the time with what appear to be prostitution ads. We catch most of them, but what if a few get through and some law enforcement agency wants to make life difficult for us? Under FOSTA, that's a real possibility. Such laws can be abused.Still, the approaches were so different that things appeared to mostly be at a standstill. However, as noted above, suddenly things are moving and moving fast... and in the worst possible way. House Leadership apparently decided that rather than convince the Senate to move to a FOSTA approach, they would just bolt SESTA onto FOSTA via an amendment. And then, suddenly the House bill has all the problems of both bills without fixing either.That amendment was released yesterday and is being introduced by Rep. Mimi Walters of California. Her district includes Irvine, which houses a whole bunch of tech companies who should be absolutely furious that their own representative just made things much more difficult for them. Take, for example, JobzMall, an Irvine-based company for connecting workers and employers. It's not difficult to think of how some might try to abuse that tool for prostitution or trafficking -- and suddenly the site may face a ton of legal fights, fishing expeditions and criminal threats because of this. That seems like a huge, huge problem.And, importantly, it cannot be stressed enough that nothing in either of these bills does anything at all to actually stop sex trafficking. Supporters of the bill keep insisting it's necessary to stop sex trafficking and that those opposed to the bills are somehow in favor of sex trafficking. That's just wrong. Those opposed to the bill know what happens when you have mis-targeted bills that hold platforms responsible for what users do with them: and it's not that the "bad stuff" goes away. Instead, the bad stuff tends to continue, and lots of perfectly acceptable things get censored.A recent paper by one of the world's foremost experts on "intermediary liability," Daphne Keller, explains why the bill won't work based on years and years of studying how these kinds of intermediary liability laws work in practice:

In the wake of the school shooting tragedy in Florida that saw 17 people slain and more injured, the following days have played out in a depressingly familiar fashion. It's somewhat stunning to see such bloodshed result in the predictable retreat by most people to the defensive or offensive ground of their cause du jour. What should be immediately obvious to anyone seriously examining something like the mass murder of school children and teachers is that the reality that surrounds such an event is messy, complicated, and influenced by detail. Yet, as is our wont, entirely too many people decide that the solution to the mass shooting puzzle is made up of one or two pieces, rather than hundreds and thousands. It's guns. It's specific types of guns. It's mental health. It's rap music, or the waltz, or comic books. It's one of these things that deserve our ire, or maybe two if we're feeling generous.Well, it was only a matter of time, but contributing to this non-conversation is Kentucky Governor Matt Bevin, who has yet another cliched scapegoat upon which to place the sins of the shooter.

While the FCC formally voted to kill net neutrality late last year, the actual repeal of the rules doesn't occur until the repeal itself is published in the Federal Register. Sources tell Reuters that with Ajit Pai's agency having completed the finishing touches on its repeal, the publication should finally happen this week. Once that happens, there's a 60 day window before the actual repeal takes effect, meaning the rules will formally end in April:

Some research [PDF] has emerged indicating handing officers extra rights results in more citizen complaints. This may seem to be of the "water is wet" research variety, but there's no reason to shrug this off. While most of us can infer that shielding officers from the consequences of their actions would naturally result in increased misconduct, almost all evidence to date has been anecdotal. (h/t Marginal Revolution)University of Chicago researchers were given the perfect chance to weigh the addition of a collective bargaining agreement against year-to-year complaint totals. Thanks to a 2003 Florida state supreme court decision, Florida sheriff's deputies were allowed to unionize, finally joining their police department counterparts. This gave the researchers a dividing line for a before and after comparison. The results were unsurprising.

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

A report by Kevin Poulsen for The Daily Beast shows, once again, that those suggesting Ed Snowden should have used the proper channels to voice his concerns about domestic surveillance are either ignorant or deliberately obtuse.Just prior to the Snowden leaks, President Obama enacted Presidential Policy Directive 19, which was supposed to prevent retaliation for whistleblowing. It was issued in 2012 and went into force just months before Snowden left the NSA with a trove of documents. However, it did not protect contractors like Snowden. Those protections were added by Congress years later. Not that it really matters. It has been well established those protections are mostly worthless.Over the past year, there's been a concerted effort to oust Dan Meyer -- the person Intelligence Community whistleblowers are supposed to take their complaints to. Meyer filed his own whistleblowing complaint against the Defense Department, claiming IC officials retaliated against him for exposing waste and misuse of funds. Those gunning for top-level positions in Trump's Intelligence Community have histories of retaliatory behavior against whistleblowers, which would further cement the reputation of the "official channels" as a good way to jettison your career.According to The Daily Beast, the problem is larger than previously thought. The implementation of PPD-19 hasn't changed anything. Whistleblowers are still facing retaliation or being ignored completely.