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she made a request for all copyright related studies that the EU Commission had requested since 2013, even if they were unpublished.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Even those of us who believe that the internet is overall a tremendous positive force when it comes to discourse and culture can admit that, in many parts of the online world (and really the world in general), having constructive and substantive conversations is... difficult. And that issue has most certainly come to the fore in the last couple of years. So this week, we're joined by author Barry Eisler (one of our first and most frequent podcast guests) to tackle the challenge of framing important debates in productive ways, and actually getting somewhere with them.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years now we've pointed out how one of the telecom industry's sleazier lobbying tricks involves paying minority groups to parrot awful tech policy positions. That's why you'll often see groups like the "Hispanic Technology & Telecommunications Partnership" support competition-killing mergers or oppose consumer-centric policies like more cable box competition or increased wireless competition. This quid pro quo is never put into writing, so when these groups are asked why they're supporting policies that undermine their constituents, they can deny it with a wave of breathless indignation.But this tactic remains very real, and very harmful all the same. It played a huge role in ginning up bogus support for the attack on net neutrality. AT&T and Comcast have co-opted countless minority groups in this fashion, with a lot of it coordinated through a telecom-funded organization dubbed the Multicultural Media, Telecom & Internet Council (MMTC). In short: if you want to keep the funding flowing, it's expected that you'll parrot telecom industry policies, even if they harm your constituents. This has been a problem for years that nobody much likes to talk about.The NAACP has consistently been part of this problem, opposing real net neutrality protections after receiving funding from AT&T, Comcast and Verizon. The group signed off on letters opposing tough FCC rules both (pdf) times (pdf) they were proposed, often mirroring the incumbent ISP claim that tougher net neutrality rules would hamstring ISP efforts to expand broadband availability into poor communities (utterly false). In other FCC filings (pdf), both the MMTC and NAACP claimed that real neutrality would damage the "fragile state of minority engagement in the digital ecosystem."But now that the FCC's attack on net neutrality is getting media attention due to a massive public backlash, the NAACP has issued a statement proclaiming that the group is "deeply disappointed" with the FCC's decision to repeal rules. Now that the battle is making headlines, the NAACP is claiming that the removal of rules it fought against strips away "critical safeguards for ensuring an accessible internet":

A little over a year ago, we wrote about an unfortunate case in which Dr. Seuss Enterprises decided to sue for copyright and trademark infringement over an attempt to create a (pretty funny) parody that mashed up Dr. Seuss with Star Trek, called "Oh, The Places You'll Boldly Go." As we noted at the time, this seemed to be a clear parody (which is protected by fair use). It was clearly transformative, and was commenting on the differences between Trek and Seuss. We also noted some extraordinary (and extraordinarily silly) claims in the lawsuit. The defendants in the case, Comicmix, won a round earlier this year, when the judge tossed out the trademark claims. However, he let the copyright claims stand for the time being. After, Dr. Seuss Enterprises filed an amended complaint on all the claims, leading to a new motion to dismiss.Unfortunately, in a new ruling, the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward. And it's in large part due to the Muppets and a font. I only wish I were joking. You can read the ruling here. Since the court had previously done a copyright fair use four factors analysis, it mostly just points back to its previous ruling on the matter, but only adjusts its analysis of factor four -- the "effect of the use upon the potential market." The other factors split evenly (factor one in favor of Comicmix, factor two in favor of Seuss, factor three favoring neither).So this ruling turns on what many courts (perhaps incorrectly...) believe is the most important factor: does this use harm the market for the copyright-covered work. Here, the discussion turns on whether or not this would undermine the Seuss Estate from licensing out its copyrights to someone to do a Star Trek mashup. Comicmix's argument is basically "come on, no one's doing that." Seuss's argument is "hey, look, we've done other mashups before"

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Wisconsin businessman Paul Nehlen is running for the other Paul's (Ryan) House seat in next year's midterm elections, and we can only hope this man is never allowed to operate law-making apparati at a federal level. He has big ideas for the nation -- most of them sounding exactly like President Trump's big ideas: A wall! Paid for by Mexico! Killing off Obamacare! Making abortions illegal! Bulk, untargeted deregulation!Nehlen also has big ideas about the First Amendment. Big ideas and a toddler-like grasp on tricky terms like "censorship." Nehlen hates (HATES!) government regulation but feels the government should step in and, under the color of law, prevent internet companies from monitoring their platforms as they see fit.The highly-problematic Nehlen wants Twitter, Facebook, YouTube, etc. to stop kicking like-minded people off their platforms. It's undeniable Twitter has been deleting accounts held by far-right persons more often than those veering widely to the left. Some feel Facebook and Google have been doing the same thing, but the complaints of unfair moderation are loudest on Twitter. Nehlen is one of those complaining. But if he gets elected to Congress, he'll be able to do actual damage.This is Nehlen's grand idea for turning Twitter etc. into alt-right-friendly platforms: heavy-handed regulation. He introduces it by borrowing words from none other than net neutrality-killer Ajit Pai. Why? Because Ajit Pai's anti-regulatory efforts are somehow aligned with Nehlen's plan for regulation of internet services. The following is from his press release [delivered via tweeted images rather than a PDF, because wtf. {makeshift PDF version}]:

By now you've probably noticed that FCC boss Ajit Pai isn't particularly popular online after he voted last week to kill popular net neutrality protections. A big reason for that unpopularity is Pai's tendency to simply make things up as he rushes to coddle broadband duopolists, whether we're talking about his bogus claims that net neutrality killed broadband investment, his claims that net neutrality only emboldens tyrants in Iran and North Korea, or his claims that the broadband market is amazingly competitive.So in the wake of the repeal (which of course still needs to survive legal challenge) it's not too surprising to see Pai engaging in more blatantly false nonsense as he tries to frame net neutrality supporters as hysterical hyperbolists. For example, Pai tried to argue last week on Fox and Friends that net neutrality supporters were clearly wrong to worry about the repeal because Twitter and Facebook still worked the day after the repeal:To try and gather support for his extremely unpopular plan, Pai's been throwing some red meat to the base by framing net neutrality concerns as the domain of out of touch Hollywood elites, despite the fact the rules have broad, bipartisan support. As such, Pai took particular aim at comments made by comedian Jimmy Kimmel, claiming he was foolish to worry about the repeal since social media websites still worked the day after the FCC voted 3-2 to kill the rules:

Last year, the Russian authorities ordered LinkedIn to be blocked in the country, supposedly for failing to store personal data locally. Since other US companies like Google and Facebook had also ignored this data localization requirement, it was curious that only LinkedIn was affected. Now the German news site Deutsche Welle is reporting that Twitter and YouTube risk being locked out of Russia, but for quite different reasons. These involve Mikhail Khodorkovsky, once the wealthiest person in Russia, and a long-time vocal opponent of President Putin. Khodorkovsky spent a number of years in prison, allegedly for fraud and embezzlement. He now lives outside Russia, and has set up the NGO Open Russia, which promotes democracy and human rights in Russia.Open Russia was put on the official list of "undesirable organizations" in April of this year. The Russian government has shut down Open Russia's web site, and now it is demanding that the NGO's presence on social media be deleted as well. Roskomnadzor, the country's media regulatory agency, gave YouTube and Twitter a deadline to delete Open Russia's accounts on their services, or be blocked entirely. The deadline has now passed, but the accounts are still accessible within Russia. The question is: what happens now?If Twitter and Google continue to refuse to delete the accounts, the Russian authorities could try to block them individually. That wouldn't be easy, so the government might simply order the whole of Twitter and YouTube to be blocked. After all, that is what it did with LinkedIn. However, the local experts interviewed by Deutsche Welle point out that LinkedIn was never very popular in Russia, so its loss passed largely unnoticed. Shutting down Twitter and YouTube would be a different matter, and would probably cause widespread online protests -- something the authorities would be keen to avoid.In any case, users could use proxies, VPNs, and Tor to circumvent such blocks. It's true that Russia has brought in a law that gives the authorities the power to order those kinds of services to block access to particular sites, or be shut down. But the Deutsche Welle post contains the following information about what is actually happening on the ground:

When it comes to frivolous trademark lawsuits, you think you've seen it all, but then one comes along that makes you throw up your hands. Here at Techdirt, we understand that the average individual might not know some of the broader nuances of trademark law, such as the focus on customer confusion, or the requirement, in most cases, that the parties reside within the same industry or market. But that understanding goes out the window when we're talking about a lawsuit brought by a large corporation that, like, totally has lawyers and stuff. I use that tone and vernacular specifically as preparation for stating that Five Below, the large retailer with trendy products for less than five bucks, has sued 10 Below, a small chain of ice cream shops.And before you ask, yes, pretty much all of the media covering this is actually pointing out how divergent the markets and industries of these two companies is, often in spectacularly funny fashion.

As we've been noting for a while, the FCC's 3-2 vote to kill net neutrality is really only the beginning of a new chapter in the fight for a healthy, competitive internet. The rules won't truly be repealed until 60 days after they hit the federal register in January. And even then, the repeal will have to survive a multi-pronged legal assault against the FCC, accusing it of ignoring the public interest, ignoring feedback from countless experts, and turning a blind eye to all of the procedural oddities that occurred during its proceeding (like, oh, the fact that only dead and artificial people appear to support what the FCC is up to).ISPs know that this legal fight faces a steep uphill battle with all of the procedural missteps at the FCC. That's why we've been warning for a while that ISPs (and their army of think tankers, sock puppets, consultants, and other allies) will soon begin pushing hard for a new net neutrality law. One that professes to "put this whole debate to bed," but contains so many loopholes as to be useless. The real purpose of such a law? To codify federal net neutrality apathy into law, and to prevent the FCC from simply passing tougher rules down the road.Just like clockwork, Comcast responded to last week's net neutrality killing vote with a blog post by top Comcast lobbyist David Cohen (the company, for the record, hates it when you call Cohen a lobbyist) calling for a new, Comcast-approved law. Cohen declares that it's "time for Congress to act and permanently preserve the internet," while repeatedly and comically trying to downplay Comcast's own role in the chaos we're currently witnessing:

Another court has decided compelled password production isn't a violation of the Fifth Amendment. The Massachusetts case [PDF], titled "In the Matter of a Grand Jury Investigation," concerns allegations of child abuse. The grand jury requested access to the contents of the suspect's phone. The government obtained a warrant but sought a court order compelling the suspect to produce a password to unlock it. The court granted it and the suspect challenged the order after being hit with contempt charges for failing to turn over the password. (via FourthAmendment.com)The court finds no problem with the government's reasoning. According to the court, the ownership of the phone is the only "foregone conclusion" the government needs to reach.

Tesla remains a fascinating company. Elon Musk famously likes to do things his own way, and doesn't much care for convention. And that's often a great recipe for innovation. At times, it leads to really awesome things like giving away all the company's patents for anyone to use without licensing. But, sometimes it does some weird things that should make people think twice about buying into the Telsa vision -- even when at first pass it may make sense. For example, a few months ago, we were concerned about the "surprise" remote range extension that Tesla gave to drivers in Florida to help them evacuate before Hurricane Irma hit. On its face, this obviously seems like a good thing. Helping people evacuate a hurricane by extending their mileage is unquestionably good.But it did raise some concerns -- about a company remotely, and without notification, updating the car you purchased from afar. Because if it can be used for "good" reasons (like giving you extra range to escape a hurricane) it might also be used at other times for bad reasons. What if, for example, Elon Musk decides he doesn't like you. Last year, Musk famously banned famed venture capitalist Stewart Alsop from buying one of Tesla's cars after Alsop publicly complained about a poorly staged event by Tesla. Could Musk "brick" someone's car for displeasing him? The backlash to that would be massive, which probably keeps such a move out of the realm of likelihood, but there are still problems with the company changing your car after purchase.Similarly, last year there were reports that Tesla was banning people from using its self-driving car technology as part of any ride-sharing project. This seemed like an anti-competitive move, as Tesla has talked about setting up its own sort of Uber using self-driving cars that people would buy (basically, you'd "rent out" your car while you weren't using it). We thought that was a neat idea, but were troubled by the idea of contractually blocking Tesla owners from working with other vendors on such a project.And now there's another troubling move: Tesla is telling "commercial" drivers of its vehicles (mainly ride-sharing drivers) that they can't use the company's Supercharger network to charge their cars. There are perfectly legitimate, non-nefarious reasons for this. Mainly: there are apparently problems with Superchargers being overcrowded these days, and you could see why the company doesn't want them clogged up with ride sharing drivers, effectively subsidizing their driving jobs. At the very least, the company has made it clear the policy only applies to new Tesla buyers, so it's not a bait-and-switch situation.But, still, there's something troubling about the idea that the company can ban you from using its Superchargers based solely on the type of driving you're doing. Again, that leads to questions about what other situations may arise where Tesla bans people from using its chargers in one form or another. I'm sure that many won't think this is a big deal -- and will point out that the company needed to do something to avoid congestion. But we should be concerned about how this is subtly changing our relationship to the products we (thought we) own, and the control that companies have over our usage, post-purchase.I don't think Tesla is doing anything nefarious here, and there are plenty of seemingly good reasons for why the company chose this path. But we should be quite careful and thoughtful about how we move into a world where the company that sells you something retains an astounding amount of control over how and even if you are allowed use it, based on how much it likes or dislikes you or your profession. Because sooner or later, these issues are going to get bigger and more problematic -- and it might help if we really thought about them now, before things get messy.

If the end of the year is closing in, it means it's time for Manhattan DA Cy Vance's Annual Anti-Encryption Spectacular! Gather the kids around because the 2017 edition of Vance's annual plea for an encryption ban has just been published [PDF]. Don't worry, Vanceheads, the core essence of the DA's anti-encryption publication remains unchanged: encryption is for letting bad guys get away with crimes.Vance's state-of-encryption report leads off with the same assertion the FBI and DOJ have been making lately: every locked device contains a wealth of criminal evidence.

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You would think that to become a state Supreme Court Justice you need to be familiar with the basics of the law -- including famous legal rulings. For example, New York Times Company v. United States from 1971 is a pretty important and well known First Amendment case, in which the court specifically said that preventing newspapers from publishing information was unconstitutional prior restraint. That case relies on a number of other super famous First Amendment cases such as Near v. Minnesota and Bantam Books v. Sullivan. I mean, I'm not a lawyer and I know these cases. You would think that an Iowa Supreme Court Justice would as well.No such luck, apparently. As the Associated Press is reporting, Justice David Wiggins of the Iowa Supreme Court has blocked the Des Moines Register from publishing material that it had obtained via court records that were inadvertently made public.

This is one of those frustrating stories where basically everyone's wrong about everything. Here's how it started: Just prior to Ajit Pai's FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his "jokes" are -- but it doesn't stop him from trying again. If you somehow missed it, you can see the video here:The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai's supporters gleefully laughing at Pai's opponents for getting upset about it. If you can't see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC's net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, "ruining a meme."That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song "Harlem Shake" by "Baauer" the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia's Plastic Little. Also, the "con los terroristas" line was sampled from a singer named Hector Delgado.Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well.And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke.Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet).Outrage three: we're back to copyright. Baauer tweeted angrily that he supported net neutrality and was "taking action" saying "whatever I can do to stop this loser."

It's no secret that the two regions most affected by China's strict controls are Tibet and Xinjiang, the vast and troubled Western region where the turkic-speaking Uyghurs form the largest ethnic group. Earlier this year, we wrote about one fairly extreme surveillance technique in Xinjiang: a requirement for every vehicle there to be fitted with a tracking device. Now Human Rights Watch reports that an even more intrusive surveillance measure is being implemented for the region's 24 million inhabitants: