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Techdirt has been following the ridiculous proposal to extend EU copyright even further to include tiny snippets from articles for years now. The idea has already been tried twice in the European Union, and failed dismally on both occasions. In Spain, a study showed the move there caused serious economic damage, especially to smaller companies; German publishers tacitly admitted the law was pointless when they granted Google a free license to use snippets from their titles. More recently, the European Commission's own research confirmed that far from harming publishers, news aggregators have a positive impact on the industry's advertising revenue. Despite the clear indications that a snippet tax is a terrible idea, some want to go even further, and make it apply to hyperlinks too. Writing in the French newspaper Le Monde back in December, large news agencies including Germany's DPA and France's AFP complained that sites:

The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.

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Last week, we wrote about the Mueller indictment of 13 Russians and three Russian organizations for fraud in trying to sow discord among Americans and potentially influence the election by trolling them on social media. If you haven't read the indictment yet, I recommend doing so -- or at least reading Garrett Graff's impressive attempt at basically turning the indictment into one hell of a narrative story. The key point I raised in that article was that the efforts the Russians undertook to appear to be American shows how difficult-to-impossible it would be to demand that the various internet platforms magically block such trolling attempts in the future.But, there's a larger issue here that seems worth exploring as well. Among the various attacks aimed at social media companies (mainly Facebook) it feels that many are using this as yet another excuse to demand more regulation of these platforms or to poke more holes in Section 230 of the CDA.We've already spent many posts explaining why undermining CDA 230 will do a lot more harm than good, but it seems worth especially highlighting how undermining it here in response to Russian attacks would only help the Russians accomplish what it is they've set out to do. CDA 230 is a key aspect of enabling free speech online. It's what allows platforms to host our speech without having to carefully review it before it's allowed, or take it down at the first sign of complaint (allowing a heckler's veto). This is tremendously important in making the internet a platform for everyone, as opposed to just the elite and connected. And, yes, with that comes serious challenges, because some people will inevitably seek to abuse that openness to try to turn us against each other (as appears to have happened here).But it would be quite an "own goal" to turn around and dismantle the tools that enable free speech in response to foreign attacks.As Julian Sanchez points out at the NY Times, the Russian government is annoyed by the US criticizing them for online censorship -- so pushing social media companies to censor more in the US would help the Russians point out what hypocrites the Americans are and continue to suppress opposing political points of view:

Germany's new law, targeting hate speech and other unpleasantness online, is off to a roaring start. Instead of cleaning up the internet for German consumption, the law has been instrumental in targeting innocuous posts by politicians and taking down satirical content. The law is a bludgeon with hefty fines attached. This has forced American tech companies to be proactive, targeting innocuous content and satire before the German government comes around with its hand out.It took only 72 hours for the new law (Netzwerkdurchsezungsgesetz, or NetzDG) to start censoring content that didn't violate the law. Some German officials have expressed concern, but the government as a whole seems content to let more censorship of lawful content occur before the law is given a second look. The things critics of the law said would happen have happened. And yet the law remains in full effect.The spirit is willing but the body is weak, Sterling Jones says in the opening of his excellent post detailing more blundering attempts by the German government to enforce its terrible law.

Large ISP lobbyists, the FCC and agency head Ajit Pai are going to be rather busy for the foreseeable future. In the wake of the agency's extremely unpopular net neutrality repeal, consumer groups note that 26 states (27 including a new effort in Kansas) have now taken action to protect net neutrality themselves -- with more efforts on the way. The efforts range from attempts to pass state-level net neutrality rules banning anti-competitive behavior, to executive orders modifying state procurement rules to prohibit ISPs that violate net neutrality from getting state money or securing state contracts.Last week, Vermont became the fifth state to embrace the executive order route, approving new rules (pdf) that prohibit ISPs from securing state contracts if they engage in anti-competitive throttling, website blocking, or paid prioritization. In all instances, both the proposed state laws and executive orders provide ample leeway for the prioritization of essential services (like medical equipment) while allowing ISPs to engage in "reasonable network management."That said, ISP lobbyists tend to be pretty good at convincing lawmakers to water down what "reasonable" means before or after the fact, something we saw with both the 2010 and the 2015 FCC rules. Net neutrality rules are also only as good as the willingness to actually enforce them, which historically hasn't been great. In other words, while these are well-intentioned efforts by many state leaders, it's going to be important to hold state leaders' feet to the fire on this issue, especially given the often comical influence ISPs have on state regulators and politicians.Forseeing this state-level action, ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal banning states from enforcing net neutrality or protecting broadband subscriber privacy (in the wake of their other success killing privacy rules last year).But the FCC's authority on this front remains uncertain. Many of the state leaders, like Montana Governor Steve Bullock, believe the executive orders fall outside of FCC jurisdiction anyway:

With more and more people attacking online trolls, one common refrain is that we should do away with anonymity online. There's this false belief that forcing everyone to use their "real name" online will somehow stop trolling and create better behavior. Of course, at the very same time, lots of people seem to be blaming online social media platforms for nefarious activity and trollish activity including "fake news." And Facebook is a prime target -- which is a bit ironic, given that Facebook already has a "real names" policy. On Facebook you're not allowed to use a pseudonym, but are expected to use your real name. And yet, trolling still takes place. Indeed, as we've written for the better part of a decade, the focus on attacking anonymity online is misplaced. We think that platforms like Facebook and Google that use a real names policy are making a mistake, because enabling anonymous or pseudononymous speech is quite important in enabling people to speak freely on a variety of subjects. Separately, as studies have shown, forcing people to use real names doesn't stop anti-social behavior.All that is background for an interesting, and possibly surprising, ruling in a local German court, finding that Facebook's real names policy violates local data protection rules. I can't read the original ruling since my understanding of German is quite limited -- but it appears to have found that requiring real names is "a covert way" of obtaining someone's name which raises questions for privacy and data protection. The case was brought by VZBZ, which is the Federation of German Consumer Organizations. Facebook says it will appeal the ruling, so it's hardly final.On the flip side, VZBZ is also appealing a part of the ruling that it lost. It had also claimed that it was misleading for Facebook to say that its service was "free" since users "pay" with their "data." The court didn't find that convincing.It will certainly be interesting to see where the courts come out on this after the appeals process runs its course. As stated above, I think the real names policy is silly and those insisting that it's necessary are confused both about the importance of anonymity and the impact of real names on trollish behavior. However, I also think that should be a choice that Facebook gets to make on its own concerning how it runs its platform. So I'm troubled by the idea that a government can come in and tell a company that it can't require a real name to use its service. If people don't want to supply Facebook with their real name... don't use Facebook.But, honestly, what's really perplexing is that this is all coming down at the same time that Germany -- especially -- has been trying to crack down on any "bad content" appearing on Facebook, demanding that Facebook wave a magic wand and stop all bad behavior from appearing on its site. I'd imagine that's significantly harder if it has to allow people to use the site anonymously. This is not to say that anonymity leads to more "bad" content (see above), but it certainly can make moderating users much more difficult for a platform.So, if you're Facebook, at this point you have to wonder just what you have to do to keep the service running in Germany without upsetting officials. You can't let anything bad happen on the platform, and you can't get user's names. It increasingly seems that Germany wants Facebook to just magically "only allow good stuff" no matter how impossible that might be.

Ten years ago, Techdirt was warning about the hype surrounding the concept of "cyberattacks", and after that "cyberwar", both of which were routinely presented in apocalyptic terms. As we now know, the real online battles are being fought much more subtly in the form of low-profile foreign organizations subverting nations in sophisticated ways. Unlike the predicted take-downs of an entire electricity grid, these kind of attacks by foreign states and their proxies have already happened, and with troubling effects.Governments have a responsibility to consider all possible attacks that may be conducted via the Internet, which means that drawing up policy documents in the field is important. The French government has just published its "Revue stratégique de cyberdéfense (pdf)" -- that is, a Strategic Review of Cyberdefense. It was written by the General Secretariat for Defense and National Security, which operates under the authority of the French Prime Minister, and assists the head of government in designing and implementing security and defense policies. It's extremely thorough and well worth reading, but it's also rather long (and in French). Fortunately, Lukasz Olejnik has put together a post discussing some of the main highlights of the document, which is much shorter -- and in English. As he notes, in France, cyberdefense and cyberoffense are two separate domains, and the strategy document lays out six main approaches to the former: prevention, anticipation, protection, detection, attribution, and reaction (remediation). On the offense side:

It shouldn't take an appeals court to reach this conclusion, but that's the route taken most frequently by people challenging their convictions. Former sheriff's deputy Matthew Corder doesn't want to serve time after being convicted of depriving Derek Baize of his constitutional rights, and so we've ended up at the Sixth Circuit Court of Appeals. (h/t Sixth Circuit Blog)This all stems from a "contempt of cop" incident. Baize returned home one night to find Deputy Corder parked in his parking spot in front of his home. Baize asked what was going on, only to be told to "mind his own business." Baize then asked the deputy to move his car so Baize could park in front of his house. The deputy said he'd move his car "when he was ready."Nonplussed by the behavior of this supposed public servant, Baize told the deputy to "fuck off." Deputy Corder asked for clarification. Baize responded: "I did not stutter. I said 'fuck off.'" Baize then walked into his house. Corder claimed he yelled for Baize to stop. Baize said he didn't hear this. It really doesn't matter. Citizens are under no legal obligation to engage in conversations with law enforcement officers. The deputy's testimony indicates Baize wasn't committing any crime nor was he wanted for a suspected criminal act when he walked away from the yelling deputy.Baize went into his house. The deputy followed. He banged on the door and told Baize to come outside. Baize refused, again well within his rights. Baize also pointed out Corder might want to get his paperwork in order if he wanted to set foot in the residence. The following was all caught on Corder's body camera:

There are lots of ways companies can deal with those who cheat in online video games. We have seen developers and publishers sue those who cheat, we have seen national governments criminalize this kind of cheating, and we even got to see Rockstar's attempt to force cheaters to only play with other cheaters. While these sorts of efforts vary wildly, the common response from game publishers is to be entirely too ham-fisted in keeping cheaters out of online games. This results in all sorts of problems, ranging from punishing players who weren't actually cheating to creating all kinds of collateral damage.One example of the latter recently transpired when the maker of a very cool tool for Ubisoft's Tom Clancy: The Division found himself permanently banned from the game even though he hadn't participated in anything resembling cheating at all. First, let's outline what he created.

In 2016, mostly out of frustration, I wrote a post about how traffic is fake, audience numbers are garbage, and nobody knows how many people see anything. My feelings haven't changed much, and neither has the digital advertising ecosystem. And since regular podcast co-host Dennis Yang runs a digital metrics company, it only made sense for us to hash it out on an episode all about audience measurement and how it shapes online advertising.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.

Facebook's definition of protection isn't quite up to snuff. Last week, some Facebook users began seeing a new option in their settings simply labeled "Protect." Clicking on that link in the company's navigation bar will redirect Facebook users to the “Onavo Protect – VPN Security” app’s listing on the App Store. There, they're informed that "Onavo Protect helps keep you and your data safe when you browse and share information on the web." You're also informed that the "app helps keep your details secure when you login to websites or enter personal information such as bank accounts and credit card numbers."What you're not told is that Facebook acquired the company back in 2013, and is now using it as little more than glorified spyware, allowing Facebook to track and monetize your travels around the internet (especially time spent wandering around competing social media platforms). That is, understandably, upsetting some people who believe that security tools should, well, actually protect you from surveillance, not open up an entirely new avenue for it:

If you haven't read it yet, I highly recommend reading the latest Wired cover story by Nicholas Thompson and Fred Vogelstein, detailing the past two years at Facebook and how the company has struggled in coming to grips with the fact that their platform can be used by people to do great harm (such as sow discontent and influence elections). It's a good read that is deeply reported (by two excellent reporters), and has some great anecdotes, including the belief that an investigation by then Connecticut Attorney General Richard Blumenthal into Facebook a decade ago, was really an astroturfing campaign by MySpace:

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Having already released the memo purportedly showing surveillance abuses committed by the FBI, the legislators behind the release are now getting around to asking for documents to back up the memo's assertions. Bob Goodlatte and Devin Nunes have both asked the FISA court for the paperwork they probably should have looked at before writing and releasing the memo.Nunes has asked for "transcripts of relevant FISC hearings" related to the FISA warrants predicated largely on assertions made in Steele dossier. Goodlatte has asked applications and orders for the same warrants. The FISA court has replied with two letters stating basically the same thing: thanks for the weird (and inappropriate) question, but maybe take this up the FBI. (h/t Zoe Tillman)From the letter [PDF] sent by Judge Rosemary Collyer to Devin Nunes:

We've long-noted how the government doesn't do a very good job tracking broadband availability and pricing, in large part because incumbent ISPs like Comcast, Verizon and AT&T don't want them to. ISPs (and the lawmakers paid to love them) whined incessantly about the last FCC's efforts to raise the standard definition of broadband, given it only highlighted the fact that two-thirds of Americans can't get "broadband" (25 Mbps) from more than one ISP. ISPs also fight revealing pricing data, which is why our $300 million broadband availability map doesn't contain any price data whatsoever.ISPs have also routinely lobbied against efforts to improve broadband availability mapping, since more clearly highlighting competition and deployment shortcomings might result in somebody actually doing something about it. As a result, government reports on the health of the clearly-dysfunctional U.S. broadband market tend to have a decidedly unrealistic and rosy timbre, which is often worse if the regulators in question are of the revolving door variety (as we're currently seeing under current agency boss Ajit Pai).And while Pai is busy insisting that he's all about transparency, hard economics, and "closing the digital divide," his policies repeatedly and consistently undermine those claims.Case in point: folks in West Virginia have complained about particularly awful broadband for years. The state is the poster child for what horrible broadband (and the corruption that helps protect it) looks like. Verizon neglected the state's infrastructure for years, then offloaded its unwanted DSL customers to Frontier Communications, who not only bungled the acquisition, but has been caught repeatedly ripping off taxpayers thanks to regulatory apathy. The end result has been millions of state residents who either can't get broadband at all, or are forced to pay an arm and a leg for sub 3 Mbps DSL straight from 1999.So when a recent FCC broadband availability report tried to claim the state was awash in broadband availability, the people who actually live there were understandably annoyed:

You may have been asked if you'd like to try your hand at mining cryptocurrency. You may have demurred, citing the shortage in graphics cards or perhaps wary you were being coaxed into an elaborate Ponzi scheme. So much for opting out. Thanks to the NSA, you may be involved in mining cryptocurrency, but you're likely not seeing any of the benefits.

This week, our first place comment on the insightful side is a response to the old claim that copyright is the only way to make money as a creator:

Five Years AgoThis week in 2013, Register of Copyrights Maria Pallante was praising the pervasiveness of copyright restrictions, while two former holders of the office were complaining about fair use in universities; music publishers were calling for stronger copyright by attacking the Consumer Electronics Association, the BPI was (as usual) cherry-picking stats to fearmonger about piracy, and some folks at the World Economic Forum were talking for "balance" while calling for the opposite. France's Hadopi three-strikes program was reducing piracy, but failing to prop up flagging sales, while some industry folks were seeing if they could just turn three strikes into a moneymaking system.Ten Years AgoThis week in 2008, we discovered there was one kind of copyright limitation Congress would actually consider... an exemption for churches that want to show the Super Bowl, apparently. Then again, that same week, they resurrected the idea of introducing fashion copyrights. And the EU was looking to extend copyright terms and blank media levies, the UK was considering kicking casual file sharers off the internet, and the Bush Administration was bragging about all the anti-piracy work its DOJ was doing. In Canada, people were beginning to speak out against proposals for an equivalent to the DMCA, while in Denmark the Pirate Bay's traffic amusingly grew following a court order to block it.Fifteen Years AgoThings were a little quieter on the copyright front this week in 2003, though there were still rumblings like the IFPI trying to scare a bunch of companies into policing employee piracy and the IIPA releasing all sorts of bogus and misleading stats. Meanwhile, broadband caps were still a silly new idea and customers were realizing how much they suck; precious few people were able to retain perspective on the issue of "driving while yakking"; and it was the early days of the LED lighting revolution.

Time and time again, courts remind officers of the law don't actually have to know the law to enforce the law. Yes, that's how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has lead to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse. This has completely skewed judicial perception, turning law enforcement into noble fools and raising expectations of citizens' legal knowledge to that of seasoned criminal defense lawyers. Here's how occasional Techdirt contributor Andrew Norton breaks down the current state of judicial affairs:

We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn't like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia's notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.In that post as well, we posited that American companies should not be assisting authoritarian regimes in political censorship of this sort. Well, it seems that Facebook's Instagram has decided to cave to the censors.

As you've certainly heard by now, earlier today the Justice Department announced that it had indicted thirteen Russian individuals and three Russian organizations for various crimes related to trying to influence the US election. You should read the full indictment if you haven't already. Not surprisingly it focuses on the infamous Internet Research Agency (IRA), which was the giant Russian online trolling operation that we've discussed going back to 2015.While many are trying to position the indictment as a "significant" bit of news, I have to admit to being a bit underwhelmed. It really does not reveal much that wasn't already widely known. It's been widely reported that the Russians had interest in disrupting our democracy and sowing discord, including setting up and pushing competing rallies from different political sides, and generally stoking fires of distrust and anger in America. And... the indictment seems to repeat much of that which has already been reported. Furthermore, this indictment actually reminds me quite a bit of a similar indictment four years ago aginst various Chinese officials for "hacking" crimes against the US. As we noted then, indicting the Chinese -- who the US would never be able to arrest anyway -- just seemed to be a publicity stunt, that had the potential to come back to haunt the US. It kinda feels the same here.What is interesting to me, however, is that the indictment also demonstrates why all the hand-wringing against Facebook, Twitter and Google seems kind of misplaced. For months we've been seeing big articles and Congressional hearings questioning why the platforms allowed the Russians to use their services as propaganda tools -- even getting the companies to recently send out (useless, confusing) announcements to people about whether or not they saw or reposted Russian troll propaganda. But what the indictment makes pretty clear, is that the Russians made it nearly impossible for an internet service to ferret them out. The money used was spread out among many different banks and laundered through various means to make it more difficult to trace back. And it details just how far the trolls went to appear to be Americans, including traveling to the US, posing as Americans online to talk to actual US activists and push them in certain directions. And, of course, confusing the internet platforms into thinking they were Americans:

We've noted for some time how Chinese hardware vendor Huawei has been consistently accused of spying on American citizens without any substantive, public evidence. You might recall that these accusations flared up several years ago, resulting in numerous investigations that culminated in no hard evidence whatsoever to support the allegations. We're not talking about superficial inquiries, we're talking about eighteen months, in-depth reviews by people with every interest in exposing them. One anonymous insider put it this way in the wake of the last bout of hysteria surrounding the company:

To keep itself from being held liable for inmate deaths, San Diego County (CA) has decided to target the journalist who exposed them. Kelly Davis, along with the EFF's Dave Maass, used public records requests and investigative journalism to detail 60 deaths in the county's five jails, which occurred over the course of five years. The death rate in San Diego jails was consistently higher than those of comparably-sized systems. In fact, the death rate was higher than that of the 10 largest jail systems in the country. Documents showed almost a third of those were preventable.But when a lawsuit was filed by the wife of an inmate who died in a San Diego County jail, the county argued there was no negligence. The presiding judge disagreed, citing Davis and Maass' journalism.

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »Just last week we announced our new site EveryoneCreates.org, in which we showcase stories of people who rely on the open internet and various internet platforms to create artwork of all kinds -- from music to books to movies to photographs and more. It appears that we're not the only ones to be thinking about this. The Re:Create coalition has just now released some fantastic economic research about the large and growing population of people who use internet platforms to create and to make money from their creations. It fits right in with the point that we made, that contrary to the RIAA, MPAA and its front groups like "Creative Future," the internet is not harming creators, it's enabling them by the millions (and allowing them to make much more money as well).Indeed, the report almost certainly significantly undercounts the number of content creators making money on the internet these days, as it only explores nine platforms: Amazon Publishing, eBay, Etsy, Instagram, Shapeways, Tumblr, Twitch, WordPress and YouTube. Those are all great, and probably cover a decent subset of creators and how they make money -- but it leaves off tons of others, including Kickstarter, Patreon, IndieGogo, Wattpad, Bandcamp, Apple, Spotify and many other platforms that have increasingly become central to the way in which creators make their money. Still, even with this smaller subset of creative platforms, the study is impressive.14.8 million people used those platforms to earn approximately $5.9 billion in 2016.Let's repeat that. The internet -- which some legacy entertainment types keep insisting are "killing" content creators and making it "impossible" to make money -- enabled nearly 15 million people to earn nearly $6 billion in 2016. And, again, that doesn't even include things like Kickstarter or Patreon (in 2016 alone, Kickstarter had $580 million in pledges...). In short, just as we've been saying for years, while those who rely on the old legacy gatekeeper system of waiting until you're "discovered" by a label/studio/publisher and then hoping they'll do all the work to make you rich and famous, maybe that's a bit more difficult these days. But, for actual creators, today is an astounding, unprecedented period of opportunity.This does not mean that everyone discussed here is making a full-time living. Indeed, the report notes clearly that many people are using these platforms to supplement their revenue. But they're still creating and they're still making money off of their creations -- something that would have been nearly impossible not too long ago. And, just as the report likely undercounts the size of this economy due to missing some key platforms, it also misses additional revenue streams even related to the platforms it did count:

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Just earlier this week we noted that a judge easily laughed Playboy's silly lawsuit out of court because merely linking to infringing content is not infringing itself. But a judge in New York, Judge Katherine Forrest, has ruled on a different case in a manner that is quite concerning, which goes against many other court rulings, and basically puts some fundamental concepts of how the internet works at risk. It's pretty bad. In short, she has ruled that merely embedding content from another site can be deemed infringing even if the new site is not hosting the content at all. This is wrong legally and technically, and hopefully this ruling will get overturned on appeal. But let's dig into the details.The case involved a photographer, Justin Goldman, who took a photograph of quarterback Tom Brady on Snapchat. Somehow that image made its way from Snapchat to Reddit to Twitter. The photo went a bit viral, and a bunch of news organizations used Twitter's embed feature to show the tweet and the image. Goldman sued basically all the news publications that embedded the tweet -- including Breitbart, Vox, Yahoo, Gannett, the Boston Globe, Time and more. Now, multiple different courts around the country have said why this should not be seen as infringing by these publications. It's generally referred to as "the server test" -- in which to be direct infringement, you have to host the image yourself. This makes sense at both a technical and legal level because "embedding" an image is no different technically than linking to an image. It is literally the same thing -- you put in a piece of code that points the end user's computer to an image. The server at no point hosts or displays the image -- it is only the end user's computer. In the 9th Circuit, the various Perfect 10 cases have established the server test, and other courts have adopted it or similar concepts. In the 7th Circuit there was the famous Flavaworks case, where Judge Posner seemed almost annoyed that anyone could think that merely embedding infringing content could be deemed infringing.But Judge Forrest has decided to carve a new path on this issue in Southern New York, teeing up (hopefully) an opportunity for the 2nd Circuit to tell her why she's wrong. Even more troubling, she actually relies on the awful Aereo "looks like a duck" test to come to this conclusion. Let's dig into her reasoning. The key issue here is the exclusive right to "display" a work under copyright, known as 106(5) under copyright law.It's also important to note that this ruling is just at the summary judgment stage, and doesn't mean that the various publications will be found to have infringed -- it just means that the court is letting the case go forward, meaning that the various publications might now raise various defenses as to why their embedding is not infringing. It's still concerning, because given the "server test" in other jurisdictions, such a case would easily be tossed on a motion to dismiss or summary judgment because there's no legitimate claim of copyright infringement if no direct infringement can be shown. But here, Judge Forrest argues that because an embed leads an end user's computer to display an image, that somehow makes the publisher who included the embed code possibly liable for infringing the display right. Because it looks like a duck.This is not a new issue by any means. I found a story from over a decade ago in which I warned that we'd see a lot more stupid lawsuits about embedding content from platforms, and have to admit I'm a bit surprised we haven't seen more. The reason that's the case is almost certainly because of the reliance of many courts on the server test, leading many to realize such an argument is a non-starter. Until now.Forrest basically says that even though the image never touches the publisher's server, and the only thing the publisher is doing is linking to an image in a manner that makes the end-user's browser grab that image from another location and display it, it still counts as infringement -- because of the Aereo ruling. If you don't recall, Aereo involved a creative (if technically stupid) method for streaming over-the-air broadcast TV to users by setting up many local antennas that were legally allowed to receive the signals, and then transmitting them over the internet (which is also legal). But, the Supreme Court came up with a brand new test for why that's not allowed -- which we've called the "looks like a duck" test. The ruling found that because Aereo kinda looked like cable to the end user, the technical rigamarole in the background to make it legal simply doesn't matter -- all that matters is how things looked to the end user. Forrest argues the same is true here:

If you watched FCC boss Ajit Pai's rushed repeal of net neutrality there really shouldn't be any question about where Pai's loyalties lie, and it certainly isn't with smaller companies, healthy competition, transparency, openness, innovation, or American consumers. The agency head repeatedly lied about the justifications for the repeal, casually using fabricated data to justify what may just be the least popular policy decision in this history of modern technology. Pai's fealty to giant monopolies runs so deep, his agency now just directs reporters to lobbying talking points when they question the flimsy logic propping up the repeal.So for those paying attention, it's probably not too surprising to see news that the FCC's own Inspector General is investigating the agency boss for being a bit too cozy with the giant companies he's supposed to be holding accountable:

For many, many years we've questioned the bizarre lawless nature of ICE -- Immigration and Customs Enforcement -- going back to the days when it was illegally seizing blogs, based on false claims of copyright infringement. We questioned what ICE had to do with censoring blogs in the first place. Of course, in the last year, ICE has been getting a lot more negative attention for something that is clearly under its purview: enforcement of immigration laws. Specifically, ICE has been almost gleefully demonstrating how they are thuggish bullies who are eager to deport as many people as possible. It's disgusting and inhumane -- and if you're going to be one of those people who pop up in our comments to say something ignorant about how if someone is here illegally they have no rights and should be booted as quickly as possible, go somewhere else to spout your nonsense. Also, seriously: take stock of your own priorities and look deeply at why you are so focused on destroying the lives of people who are almost certainly less well off and less privileged than you are, and who are seeking a better way of life.But ICE's violent, gleeful thuggery seems to come easy to the organization -- and thus it should be little surprise that one of ICE's top lawyers has been charged with identity fraud and wire fraud in trying to use the identities of at least seven immigrants who were being processed by ICE. The indictment against Raphael Sanchez, the chief counsel for ICE in Seattle is quite a read.

Corporate Twitter accounts typically range from the blandly uninspired to exhibiting unfortunate behavior. While you can occasionally get some good content out of these handles, they are far too often just...meh.And, yet, let's see how the Crock-Pot brand of slow-cookers responded to a genuine freak-out on the internet that occurred after a recent episode of This Is Us. For those of you who watch the show, here's your insipid little spoiler alert. A main character on the show died in a recent episode when a slow cooker malfunctioned and burned the house down. Cool. Well, apparently that's when many viewers took to Twitter to announce that they were going to get these death machines out of their houses ASAP, with many mentioning Crock-Pots by name, even though there was no branding on the murderous slow-cooker in the show.

Techdirt has been covering India's monster biometric database, Aadhaar, since 2015. Media in India, naturally, have been on the story longer, and continue to provide detailed coverage of its roll-out and application. But wider knowledge of the trailblazing identity project remains limited. One international organization that has been working to raise awareness is Mozilla, home of the Firefox browser and Thunderbird email client.Last May, an opinion piece entitled "Aadhaar isn't progress -- it's dystopian and dangerous", by Mozilla Executive Chairwoman and Lizard Wrangler Mitchell Baker and Mozilla community member Ankit Gadgil, appeared in India's Business Standard newspaper. In July 2017, Mozilla released a statement on the Indian Supreme Court hearings on Aadhaar. A blog post in November pointed out that the Aadhaar system is increasingly being used by private companies for their services, something Techdirt covered earlier. Similarly, after it was revealed that anybody's Aadhaar details could be bought for around $8 each, Mozilla issued a statement saying "this latest, egregious breach should be a giant red flag to all companies as well as to the UIDAI [Unique Identification Authority of India] and the [Indian] Government."Following the creation of a committee to draft India’s first comprehensive data protection law, Mozilla has now paid for an open letter to appear in The Hindustan Times. It was written by Baker, and co-signed by 1,447 Mozilla India community members. Although the letter welcomes the work being carried out by the committee of experts, it criticizes Aadhaar for its many failings, and points out some serious omissions in the committee's report on data protection:

For those of you not interested in professional sports, allow me to educate you on the concept of the "coaching tree." This concept comes from the common decisions by losing teams to hire junior coaches out from under the head coaches of successful teams, hoping to siphon off some of the genius of more successful organizations. In football, for instance, you will often hear about the "Andy Reid coaching tree" as his assistants get head coaching jobs across the league after serving underneath him.Sadly, a much more sinister version of this appears to be occurring in the copyright trolling space, with Malibu Media serving as a launching point for legal minds joining other organizations and replicating what they've learned from their former employer. The result has been an explosion in copyright lawsuits for the early part of 2018, with most of them coming from the porn-trolling industry.

For an industry that talks up how important copyright law is, it's fairly astounding how frequently there are really dumb lawsuits filed between musicians. Lately, because of the ridiculous "Blurred Lines" verdict, there have been tons of lawsuits filed over "sounds like" songs, or even "inspired by" songs, as lawyers (and some musicians) see a chance to cash in on the actual success of others. But we've also seen a bunch of really dumb lawsuits filed over the use of similar phrases. A few years ago there was the case where Rick Ross sued LMFAO because they had the line "Everyday I'm shufflin'" in a song that he claimed was infringing his "Everyday I'm hustlin'." The court was not impressed.Last year a similar case was filed (which I'd meant to write about when it was filed, but a million other things got in the way), in which Sean Hall sued Taylor Swift claiming that her lyrics in "Shake it Off" were similar to a song he wrote called "Playas Gon' Play." The songs themselves were not similar, but both used lines about how "playas gonna play" and "haters gonna hate" (though not even exactly in the same way). Thankfully, once again, the court hearing the case is not at all impressed:

The Scholastic Art & Writing Awards wants to help show youths the power of artistic creation… by taking away those artistic creations irrevocably for the next two years minimum.Sasha Matthews, 13-year-old cartoonist, was the first to spot this bit of intellectual property land-grabbing late last year in the terms and conditions that must be followed by Scholastic Award entrants.

So if you haven't noticed, the entire cryptocurrency mining thing has become a bit of an absurd stage play over the last few months. From gamers being unable to buy graphics cards thanks to miners hoping to cash in on soaring valuations, to hackers using malware to covertly infect websites with cryptocurrency miners that use visitors' CPU cycles without their knowledge or consent. As an additional layer of intrigue, some websites have also begun using such miners as an alternative to traditional advertising, though several have already done so without apparently deeming it necessary to inform visitors.At the heart of a lot of this drama is crypotcurreny mining software company Coinhive, whose software is popping up in both malware-based and above board efforts to cash in on the cryptocurrency mining craze. Coinhive specifically focuses on using site visitor CPU cycles to help mine Monero. The company's website insists that their product can help websites craft "an ad-free experience, in-game currency or whatever incentives you can come up with." The company says its project has already resulted in the mining of several million dollars worth of Monero (depending on what Monero's worth any given day).The folks behind the company told Motherboard this week they were blindsided by the way their software has quickly been adopted by both non-transparent websites, and malware authors looking to make some additional money:

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For the past few months, we've talked about how FBI Director Chris Wray has more or less picked up where his predecessor, James Comey, left off when it came to the question of encryption and backdoors. Using a contextless, meaningless count of encrypted seized phones, Wray insists that not being able to get into any phone the FBI wants to get into is an "urgent public safety issue."Of course, as basically every security expert has noted, the reverse is true. Weakening encryption in the manner that Wray is suggesting would create a much, much, much bigger safety issue in making us all less safe. Hell, even the FBI used to recommend strong encryption as a method to protect public safety.Last month, we wrote about a letter sent by Senator Ron Wyden to Wray, simply asking him to list out the names of encryption experts that he had spoken to in coming to his conclusion that it was possible to create backdoors to encryption without putting everyone at risk.

By now it's pretty apparent that the FCC doesn't much want to talk about who was behind the numerous bogus comments that flooded the agency's net neutrality repeal proceeding. When I asked the FCC for help after someone lifted my identity to support repealing the rules, the FCC responded with the policy equivalent of a ¯\_(ツ)_/¯. Similarly, when New York Attorney General Eric Shneiderman approached the FCC looking for help identifying the culprit (9 requests over 5 months, he said in an open letter), the FCC blocked the investigation.Most analysts believe the effort was a ham-fisted attempt to erode trust in the public comment proceeding in order to downplay massive public opposition to the FCC's plan (a tactic that has mysteriously plagued other government proceedings over the last year). The FCC could pretty quickly clear this all up by providing access to server logs and API key usage details to law enforcement. Its consistent refusal to do so quickly dismantles agency boss Ajit Pai's continued, breathless claims that he's a massive fan of transparency and would run a more transparent operation than his predecessor.This week, members of the House Committee on Energy and Commerce sent a letter to Pai again asking him to explain (pdf) why the FCC ignored the public and sat on its hands as millions of bogus comments (some of them from dead people) piled up. Included in the questions were inquiries regarding how the FCC (which says it ignored comments "devoid of substance") determined what public comments were worth paying attention to, if any:

We've had ongoing discussions on this site about the ham-fisted website censorship policy that Russia has undertaken over the past few years. While the country was never one to embrace free and open speech and communication to the same degree as Western nations, recent times have seen a severe uptick in outright censorship with a variety of excuses rolled out for public consumption: copyright laws, stifling political opposition, and the protection of the privacy of public figures. The funnel point for all of this censorship is Russian agency Rozcomnadzor, itself the subject of corruption allegations, with a track record for racking up collateral damage numbers that would make any nation's army blush.Through it all, there have been suggestions that entire sites with massive global followings would be blocked. YouTube and Twitter were previously found to be in the crosshairs of the Russian government, but nothing immediately came of the threat. Now, however, both YouTube and Instagram may face a very real choice: bow to the censorship demands of Rozcomnadzor or face full site-blocks in Russia. And, perhaps most strangely, this has all come to a head over a Russian billionaire's win in court to block the publication of photos and videos showing him on a yacht with what is reportedly an escort.

AI is hot, and nowhere more so than in China:

Well, that was incredibly quick. The district court judge hearing the case that Playboy filed against BoingBoing back in November has already dismissed it, though without prejudice, leaving it open for Playboy to try again. The judge noted that, given the facts before the court so far, it wasn't even necessary to hold a hearing, since BoingBoing was so clearly in the right and Playboy so clearly had no case. While the ruling does note that Playboy and its legal team can try again, it warns them that it's hard to see how there's a case here:

As some of you may be aware, Safer Internet Day just passed. Started in the EU, the day is supposed to be used to educate the masses on some dangers that are tangentially or directly connected to the internet, such as malware awareness, cyberbullying, or abuses on social media sites. It's also heavily supported by the Industry Trust for IP Awareness, which is a UK entertainment industry group that chiefly looks to "educate" the public on how super-awesome copyright is in every respect and how piracy and copyright infringement are the work of Satan.In a video titled... and I can't believe I'm going to actually type this... Meet the Malwares, viewers in Australia are "educated" on exactly zero specific malware threats, but they are told that filesharing sites should be avoided completely. And if you're thinking that there are a ton of other parts of the internet that are far riskier, rest assured that the video insists it's all about file sharing sites.

When bad things happen, bad laws are sure to follow. The state of Georgia has been through some tumultuous times, electorally-speaking. After a presidential election plagued with hacking allegations, the Georgia Secretary of State plunged ahead with allegations of his own. He accused the DHS of performing ad hoc penetration testing on his office's firewall. At no point was he informed the DHS might try to breach his system and the DHS, for its part, was less than responsive when questioned about its activities. It promised to get back to the Secretary of State but did not confirm or deny hacking attempts the state had previously opted out of.To make matter worse, there appeared to be evidence the state's voting systems had been compromised. A misconfigured server left voter records exposed, resulting in a lawsuit against state election officials. Somehow, due to malice or stupidity, a server containing key evidence needed in the lawsuit was mysteriously wiped clean, just days after the lawsuit was filed.Rather than double down on efforts to secure state voting systems, the state legislature has decided to expand the definition of computer crime. A CFAA but for federalists has been introduced in the state Senate. And it could possibly lead to criminalizing a whole lot of benign computer use.

If you've been around a while, you probably know that Verizon has an adversarial relationship with openness and competition. The company's history is rife with attempts to stifle competing emerging technologies that challenged Verizon's own business interests, from its early attempts to block GPS and tethering apps so users would have to subscribe to inferior and expensive Verizon services, to its attempts to block competing mobile payment services to force users (again) onto Verizon's own, inferior products. And that's before you get to Verizon's attempts to kill net neutrality and keep the broadband industry uncompetitive.In the earlier years, Verizon had a horrible tendency to lock down its devices to a crippling and comical degree. But with the rise of net neutrality, competition from carriers like T-Mobile, and open access conditions affixed to certain spectrum purchased by Verizon, the company slowly-but-surely loosened its iron grip on mobile devices. But let's be clear: the company had to be dragged, kicking and screaming, into the new, more open future we all currently enjoy, where (by and large) you can install whatever apps you like on your device, and attach most mainstream devices (with some caveats) to Verizon's network.That's why more than a few eyebrows were raised after Verizon gave CNET the early exclusive news (apparently in the hopes that they'd frame it generously, which they did) that the company will soon be locking down its smartphones as part of a purported effort to "combat theft." Carriers have been justly criticized (and sued) for doing too little to prevent theft, in part because they profit on both sides of the equation -- both when a customer comes crying to Verizon to buy a new phone, and when the user with the stolen phone heads to Verizon to re-activate it on a new line.On its surface, Verizon's plan doesn't seem to have much of an initial impact on traditional users, who'll still get to have their phone unlocked after an unspecified amount of time. The only initial problems that could arise involve users who buy a phone, then head overseas to insert a local SIM to get more reasonably-priced service. Those users may have to contact Verizon before that phone will work, something that may or may not be a pain in the ass in real-world practice.But it's more the precedent of the move that has people familiar with Verizon's handiwork on this front a little nervous. Especially given Verizon's recent successes in not only killing net neutrality, but gutting most state and federal oversight of ISPs entirely (something many haven't keyed into yet). For one, locking down its devices technically violates the "Carterfone" open access rules affixed to the 700MHz spectrum used in Verizon's network. Verizon was quick to insist to CNET that this shift back toward locking down devices does not violate the "spirit of the agreement":

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Back in 2016 we wrote about how Landis+Gyr, a large multinational company owned by Toshiba, completely freaked out when it discovered that documents about its smart energy meters, which the city of Seattle had contracted to use, were subject to a FOIA request. As we noted, Landis+Gyr went legal and did so in perhaps the nuttiest way possible. First it demanded the documents be taken down from Muckrock -- the platform that makes it easy for journalists and others to file FOIA requests. Then it demanded that Muckrock reveal the details of anyone who might have seen the documents in question. It then sued Muckrock and somehow got a court to issue a temporary restraining order (TRO) against Muckrock for posting these public records.Eventually, with help from EFF, Landis+Gyr agreed to a settlement that stated that these documents were (a) public records and (b) the company would no longer attempt to take down the copies that Muckrock had obtained. From the settlement agreement posted on the public docket in the case:

As we've been discussing, the rise of stealth cryptocurrency miners embedded on websites has become a notable problem. In some instances, websites are being hacked and embedded with stealth cryptocurrency miners that quickly gobble up visitors' CPU cycles without their knowledge. That's what happened to Showtime recently when two different domains were found to be utilizing the Coinhive miner to hijack visitor broswers without users being informed. Recent reports indicate that thousands of government websites have also been hijacked and repurposed in this fashion via malware.But numerous websites are also now exploring such miners voluntarily as an alternative revenue stream. One major problem however: many aren't telling site visitors this is even happening. And since some implementations of such miners can hijack massive amounts of CPU processing power while sipping a non-insubstantial amount of electricity, that's a problem.The Pirate Bay for example was forced to stop using visitor CPUs and browsers to mine Monero last fall after Reddit users complained the miner was slowing down their PCs and eating up 80% of their CPU cycles. The website stated that it was simply exploring new revenue streams to keep the website afloat:

ICE has been instructed to make the nation safer by deporting the "worst of the worst." The nation will be made secure again, said the DHS, pointing to its report declaring three-quarters of those convicted for terrorism offenses were "foreign-born." Of course, to reach this ratio, the DHS had to count people the US government had extradited to the US to face trial for terrorism attacks committed in foreign countries, but whatever. The point is: foreigners are dangerous and ICE is going to remove them. An ongoing "challenge" for ICE has been finding enough dangerous immigrants to deport, so it's had to change its strategy a bit.So, if we're trying to root out would-be terrorists and MS-13 gang members and undocumented immigrants with long domestic criminal rap sheets, why is ICE targeting people for their First Amendment activities? That's what one rights activist wants to know, and he's taking ICE to court to force it to explain itself. Kevin Gosztola of ShadowProof has more details.

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.

Last year, we wrote about how a relatively new patent trolling operation had pretty clearly picked the wrong target in suing internet infrastructure provider Cloudflare with a sketchy patent (US Patent 6,453,335 on "providing an internet third party data channel.") Cloudflare decided not only to fight the case, but to fight all of Blackbird's patents, crowdsourcing and funding searches into prior art on any patent held by Blackbird Technologies, and arguing that the company was engaging in questionable legal practices -- acting both as a patent holding company and a law firm, while sometimes pretending not to be a law firm (despite employing mostly lawyers) to avoid some serious ethics questions.On Monday, Cloudflare received a fairly complete victory, with the judge easily dismissing the case and pointing out that the '335 patent was clearly invalid: