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As we've noted recently, the current copyright reform proposal being considered by the EU is full of extremely dangerous ideas, from mandated filters to a "link tax". This week, we're joined by European Parliament member Julia Reda to talk about the details of the regulatory process and the problems with the current proposal.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.

Imagine that you're a new-media entrepreneur in Europe a few centuries back, and you come up with the idea of using moveable type in your printing press to make it easier and cheaper to produce more copies of books. If there are any would-be media critics in Europe taking note of your technological innovation, some will be optimists. The optimists will predict that cheap books will hasten the spread of knowledge and maybe even fuel a Renaissance of intellectual inquiry. They'll predict the rise of newspapers, perhaps, and anticipate increased solidarity of the citizenry thanks to shared information and shared culture.Others will be pessimists—they'll foresee that the cheap spread of printed information will undermine institutions, will lead to doubts about the expertise of secular and religious leaders (who are, after all, better educated and better trained to handle the information that's now finding its way into ordinary people's hands). The pessimists will guess, quite reasonably, that cheap printing will lead to more publication of false information, heretical theories, and disruptive doctrines, which in turn may lead, ultimately, to destructive revolutions and religious schisms. The gloomiest pessimists will see, in cheap printing and later in the cheapness of paper itself—making it possible for all sorts of "fake news" to be spread--the sources of centuries of strife and division. And because the pain of the bad outcomes of cheap books is sharper and more attention-grabbing than contemplation of the long-term benefits of having most of the population know how to read, the gloomiest pessimists will seem to many to possess the more clear-eyed vision of the present and of the future. (Spoiler alert: both the optimists and the pessimists were right.)Fast-forward to the 21st century, and this is just where we're finding ourselves when we look at public discussion and public policy centering on the internet, digital technologies, and social media. Two recent books written in the aftermath of recent revelations about mischievous and malicious exploitation of social-media platforms—especially Facebook and Twitter—exemplify this zeitgeist in different ways. And although both of these books are filled with valuable information and insights, they also yield (in different ways) to the temptation to see social media as the source of more harm than good. Which leaves me wanting very much both to praise what's great in these two books (which I read back-to-back) and to criticize them where I think they've gone too far over to the Dark Side.The first book is Clint Watts's MESSING WITH THE ENEMY: SURVIVING IN A SOCIAL MEDIA WORLD OF HACKERS, TERRORISTS, RUSSIANS, AND FAKE NEWS. Watts is a West Point graduate and former FBI agent who's an expert on today's information warfare, including efforts by state actors (notably Russia) and non-state actors (notably Al Qaeda and ISIS) to exploit social media both to confound enemies and to recruit and inspire allies. I first heard of the book when I attended a conference at Stanford this spring where Watts—who has testified several times on these issues—was a presenter. His presentation was an eye-opening, erasing whatever lingering doubt I might have had about the scope and organization of those who want to use today's social media for malicious or destructive ends.In MESSING WITH THE ENEMY Watts relates in a bracing yet matter-of-fact tone not only his substantive knowledge as a researcher and expert in social-media information warfare but also his first-person experiences in engaging with foreign terrorists active on social-media platforms and in being harassed by terrorists (mostly virtually) for challenging them in public exchanges. "The internet brought people together," Watts writes, "but today social media is tearing everyone apart." He notes the irony of social media's receiving premature and overgenerous credit for democratic movements against various dictatorships but later being exploited as platforms for anti-democratic and terrorist initiatives:

You might remember that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss Trump FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. That's not a particular shock; the FCC's website has long been seen as an outdated relic from the wayback times of Netscape, hit counters, and awful MIDI music.But then something weird happened. In the midst of all the media attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by former FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:

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Having tried and mostly failed to regulate Wild West internet commerce, legislators have now decided to take a more "hands off" approach to the intersection of communications and commerce. That's what I would be writing if we lived in a world where people learned from their mistakes. But they don't. Whatever has failed a half-dozen times in previous iterations can be rebooted, doubled-down on, and otherwise presented as a legislative solution for a "problem." And this "problem" is always the same. Incumbents who have somehow managed to parlay their fortunes into a "disadvantaged" position want tech companies to give them (or their government) money.Link taxes -- otherwise known as "Google taxes" -- supposedly would allow publishers to recoup their "losses" from having Google send traffic their way. These haven't worked, and in the worst case scenario, Google has simply shut down its Google News service rather than pay for the privilege of referring traffic. Other attempts to make things "fair" for brick-and-mortar businesses competing with Amazon have led to similar outcomes. In one case, the French government decided Amazon could no longer offer free shipping on books to France. Amazon obliged, raising shipping to $0.01 Euros.The Australian government has decided to go down the road well traveled and charge Amazon extra for beating local retailers at their own game. A new law goes into effect at the beginning of July which charges Amazon 10% tax for every imported good sold to Australians. One of the backers of the bill is retailer Harvey Norman, which had this to say about Amazon.

When Google Fiber first arrived back in 2010, it was lauded as a game changer for the broadband industry. Google Fiber would, we were told, revolutionize the industry by taking Silicon Valley money and using it to disrupt the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; cities tripped over themselves offering all manner of perks to the company in the hopes of breaking free from the broadband duopoly logjam. And in some areas where Google Fiber was deployed, prices certainly dropped thanks to Google Fiber market pressure.But that was then, and this is now.In late 2016 Alphabet made it clear that the company had grown bored with the high costs and slow pace of deploying fiber. The project has burned through several CEOs in just a year, laid off numerous employees, and the company ultimately announced it was considering a pivot to cheaper wireless technology. The problem: Google's still conducting numerous tests in various spectrum bands (including millimeter wave), but doesn't actually know what this replacement tech looks like yet. Meanwhile, the cities once promised a broadband revolution are seeing that hope replaced with annoyance and frustration.While the company stated it would be putting any new builds on hold, it insisted that existing projects that were underway wouldn't be impacted. That hasn't proven to be the case, with users in initial launch markets like Kansas City saying their installations had been cancelled with no real explanation after years of waiting. That same song is also playing out in markets like Atlanta, where hope and excitement have shifted to something decidedly... different:

As Techdirt readers know, there is a ratchet effect that means copyright always gets longer and stronger. As well as being inherently unfair -- why must the public always lose out when copyright law is changed? -- there's another unfortunate consequence. If the term or breadth of copyright were reduced from time to time, we would be able to test the effects of doing so on things like creativity. For example, if it turned out that shortening copyright increased the number of works being produced, then there would be a strong argument for reducing it further in the hope that the effect would be strengthened. The fact that we have been unable test this hypothesis is rather convenient for copyright maximalists. It means they can continue to call for the term of copyright to be increased without having to address the argument that this will cause less creativity, or reduce access to older works.Even though it is not possible to test the effects of reduced copyright directly, two US academics, Barbara Biasi and Petra Moser, have spotted a clever way of investigating the idea indirectly, in the field of science publishing. As they write in a post on CEPR's policy portal, in 1942 the US Book Republication Program (BRP) allowed US publishers to reprint exact copies of German-owned science books, effectively abolishing copyright for that class of works. They have looked at what impact this dramatic change had on the use of those reprinted works by scientists. Comparing citation rates before and after the BRP was introduced is not enough on its own: citation rates fluctuate, so it is necessary to compare the BRP citation rate with something else. The researchers' solution is to look at the citation rate of Swiss books from the same time:

Perhaps you thought that the legal drama between the famous San Diego Comic-Con and the Salt Lake Comic Con was over. Our ongoing coverage of this trademark dispute stemming from SDCC somehow having a valid trademark on "comic-con", a shortened descriptor phrase for a comic convention, largely concluded when SDCC "won" in court, being awarded $20,000 after initially asking for $12 million in damages. With the focus now turning to the roughly gazillion other comic conventions that exist using the "comic-con" phrase in their names and marketing materials, this particular dispute seemed to have come to a close.But not so much, actually. In post-trial motions, SDCC petitioned Judge Battaglia to consider the case "exceptional" so that SDCC can recover attorney's fees from SLCC. The arguement for SDCC appears to mostly be that they spent a shit-ton of money on attorneys for the case.

Government agencies, for the most part, treat public records requesters as weeds in the garden of governance: a pest that can never be fully eradicated, but rather tolerated with as much annoyance as possible. Whatever can't be made to disappear with hefty fee demands or months of stonewalling will be given as little attention and compliance as possible. This attitude has turned FOIA requesters into frequent litigators seeking to hold one branch of the government accountable by using another.When Cheryl Brantley, a member of activist group A Better Way for BPA, requested records from the Bonneville Power Administration (run by the Department of Energy), she filled out the agency's online FOIA form and waited. And waited. And waited some more before finally suing.BPA responded by declaring A Better Way had no standing to file a lawsuit. It decided to get hypertechnical about Brantley's FOIA submission, claiming no one but Brantley herself should be allowed to sue.The district court granted the BPA's motion to dismiss for lack of standing. A Better Way appealed this decision, placing it before the Ninth Circuit Court of Appeals. The court is completely unimpressed with the BPA's attempt to turn a meaningless technicality into a motion to dismiss. From the decision's [PDF] summary: [h/t Brad Heath]

The Copia Institute was not the only party to file an amicus brief in support of Airbnb and Homeaway's Ninth Circuit appeal of a district court decision denying them Section 230 protection. For instance, a number of Internet platforms, including those like Glassdoor, which hosts specialized user expression, and those like eBay, which hosts transactional user expression, filed one pointing out how a ruling denying Airbnb and Homeaway would effectively deny it to far more platforms hosting far more kinds of user speech than just those platforms behind the instant appeal.And then there was this brief, submitted on behalf of former Congressman Chris Cox, who, with then-Representative Ron Wyden, had been instrumental in getting Section 230 on the books in the first place. With this brief the Court does not need to guess whether Congress intended for Section 230 to apply to platforms like Airbnb and Homeaway; the statute's author confirms that it did, and why.In giving insight into the statutory history of Section 230 the brief addresses the two main issues raised by the Airbnb appeal – issues that are continuing to come up over and over again in Section 230-related litigation in state and federal courts all over the country: does Section 230 apply to platforms intermediating transactional user expression, and does Section 230's pre-emption language preclude efforts by state and local authorities to hold these platforms liable for intermediating the consummation of the transactional speech. Cox's brief describes how Congress intended both these questions to be answered in the affirmative and thus may be relevant to these other cases. With that in mind, we are archiving – and summarizing – the brief here.To illustrate why Section 230 should apply in these situations, first the brief explains the historical context that prompted the statute in the first place:

In the wake of the Trump FCC's attack on net neutrality last December (which formally takes effect on June 11), more than half the states in the country are now exploring their own net neutrality rules. Some states (like Oregon and Washington) have passed state laws, while others (like New York and Montana) have embraced new executive orders that limit ISP ability to strike state contracts if they violate net neutrality. All told, it's not exactly the outcome AT&T, Verizon, and Comcast lobbyists were hoping for, and it's a pretty solid indication they really didn't think this entire thing through particularly well.But at the moment, most eyes rest on California, where one of the tougher new state-level replacement laws just took a major step forward.Senator Scott Wiener’s SB 822 would prevent ISPs in California from engaging in blocking, throttling, or paid prioritization. The EFF has called the bill the "gold standard" for state-level net neutrality law. The proposal actually goes a bit further than the FCC rules it's intended to replace, in part because it more tightly polices things like zero rating and usage caps, which have long been used anti-competitively by incumbent ISPs as a way to make life more difficult for companies trying to elbow in on traditional TV revenues.Despite a major push by industry lobbyists, SB 822 last week was approved 23-12 by the California Senate and will now head to the state Assembly (sometime before the end of this month). If it passes there, it will be on to the desk of Governor Jerry Brown for signing.

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

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Recent school shootings have led to heightened reactions from school officials and law enforcement. An over-correction of sorts -- thanks to the shooter in Florida having been brought to law enforcement's attention several times prior to the shooting -- has resulted in the arrest of hundreds of students across the nation.The problem isn't so much treating potential threats as credible until proven otherwise. The problem is there's so very little subtlety applied. Things that should not be perceived as threats are, and even when they're determined to be either unfounded or not actually a threat, some schools decide their misperceptions are more important than the reality of the situation. (h/t Reason)The graduating class of Truman High School in Independence, Missouri brainstormed senior pranks. Kylan Scheele came up with a pretty decent idea. He posted his school for sale on Craigslist.The ad read:

For years now we've documented the shitshow that is broadband industry customer satisfaction. That shitshow is generally thanks to a continued lack of real competition in the space, which lets these companies not only mindlessly raise rates like it's going out of style, but it gives companies like Comcast the leeway to experiment with terrible, anti-competitive practices like arbitrary and punitive usage caps and overage fees. And that's of course before you get to the clown car that passes for customer service at many of these companies, which routinely makes headlines for all the wrong reasons.Year after year we witness a rotating crop of bizarre stories highlighting how terribly these entrenched monopolies treat their subscribers. And each year industry executives insist that they've learned the error of their ways and have dedicated themselves and their budgets to fixing the "consumer experience."Except because these companies all but own state and federal lawmakers-- and see virtually no competition in their markets (especially at higher speeds)--things never actually get better. Case in point: the American Customer Satisfaction Index has released their latest analysis of customer satisfaction with the broadband industry. And what they found isn't pretty. In short, every single major ISP but one saw a decline in customer satisfaction over the last year:Note that these scores are worse than every other industry the ACSI tracks, including the airline, insurance, and banking sectors. And these scores are even well below consumer satisfaction with many government agencies, including the IRS.Comcast in fact is the only company to see no change whatsoever (though its TV services saw a 1 point decline), which is still notable given its 2014 promise that the hiring of a customer experience VP and other well-hyped improvements were going to "revolutionize" the way Comcast consumers were treated. Other companies like Charter (Spectrum) are in absolute free fall, dropping 8% year over year thanks to the poor service, rate hikes and empty promises in the wake of the company's bungled $89 billion acquisition of Time Warner Cable and Bright House Networks.And while things like gigabit broadband get a lot of media hype, we've noted that the lack of competition driving this problem is only getting worse. Numerous telcos have all but given up on residential broadband to shift their focus toward video advertising and enterprise services. And as they refuse to upgrade millions of DSL subscribers they don't actually want, cable companies like Comcast and Charter are securing a greater monopoly over broadband than ever before.Some like to claim new wireless technologies (like 5G) will emerge to magically provide competition to these providers. But while 5G wireless will provide faster, lower-latency and more resillient networks, it won't fix the business data service monopoly that drives high prices and many of the competition issues in the wireless sector. Nor will it address the industry's plan to keep putting ma bell back together via an endless array of competition-reducing megamergers. And however promising 5G is, it's not a substitute for uncapped, fixed broadband -- especially in more rural areas and less affluent cities.While cable secures a growing monopoly over fixed-line broadband, monopoly ISPs (with the Trump administration's help) are gutting all FTC, FCC and state oversight over their regional monopolistic fiefdoms. All while regulators like Ajit Pai whisper sweet nothings about how eliminating popular consumer protections like net neutrality will magically improve sector investment and competition. Surely this all works out well for the consumer, right?

MuckRock is currently conducting a public records survey of prison telephone contracts. What it has secured so far will shock you, but only if you haven't been paying attention. There's nothing like a captive audience, and prisoners are the most captive of all. There's one way out via telephone and its routed through mercenary companies and the law enforcement agencies that love them.Why so much law enforcement love for telcos specializing in prison phones? Because money buys a lot of love.

This week, our top comment comes in response to Charter's claims that a lawsuit over its terrible broadband is just the result of an evil tech conspiracy. One anonymous commenter suggested that maybe they aren't so crazy:

Five Years AgoThis week in 2013, we took a look at a big intellectual property report that focused on fearmongering about Chinese IP theft (while asking the public to foot the bill), called for companies to be allowed to use malware against infringers, and proposed cutting off funding to the World Health Organization if it doesn't start prioritizing IP protection, for some reason. Meanwhile, Hollywood studios were trying to wipe Kim Dotcom's Mega off the web, the RIAA was denying that it stifles innovation (while facing opposition from the Internet Association over its attempts to wipe out DMCA safe harbors), and CBS was trying to deny that its direct threats to sue Aereo actually meant it would sue Aereo.Ten Years AgoThis week in 2008, Viacom and YouTube were slugging it out in court while the former tried out some new anti-embedding arguments. The RIAA dropped its attack on the defunct Allofmp3, while ignoring the resurrection of the site under a different name, and ASCAP released a hugely problematic bill of supposed rights for artists. Metallica was trying to embrace the internet without offering any free downloads, and discovering that they had already squandered all their goodwill in that arena. And ACTA went from obscure trade agreement to a source of pushback and protests in record time.Fifteen Years AgoThis week in 2003, eBay lost a patent lawsuit over the Buy It Now feature, leading to a scramble from other online retailers to buy up the patents in question. We saw early discussion of tech ideas like personal 3D printers and telepresence robots (oh, and anti-infringement watermarks on content). Microsoft settled its dispute with AOL with a $750-million payout. And a court solidified many of the problems with the DMCA by ruling that rightsholders don't have to investigate the sites that they target.

As in any country, the limits of free speech are determined by the ruling party. While we have a Constitution that (mostly) holds our representatives at bay, many countries only pay lip service to rights they have previously declared inviolable. Egypt's government has long suppressed dissent and strangled communications. It deployed an internet kill switch in 2011, cutting off access to millions of Egyptians. A regime change followed and the former president was fined for nuking the country's internet access.Despite this power shift, nothing much changed. The current government cares no more for dissent and criticism than the previous one. Egyptian journalist Wael Abbas, who exposed police brutality and government torture, has provided his fellow residents an invaluable service: an unfiltered, ground-level view of government atrocities. His work even resulted in the rare conviction of Cairo police officers.But he's fought censorship at home -- as well as abroad -- every step of the way. YouTube, Facebook, and Twitter have all suspended his accounts, supposedly for policy violations. Most of these were reversed after US activists intervened on his behalf, but his accounts are always just another perceived violation away from being shut down permanently.And that's just on the US side. Egypt's government has tried to silence him on the homefront, convicting him in 2010 for "providing telecommunications service to the public without permission of the authorities." That was under the previous regime -- the one that deployed an internet kill switch to disrupt the communications of its many critics and opponents.The new regime, as noted above, is no better. As Jillian York reports for the EFF, Abbas has been detained by Egyptian police, apparently for the crime of exposing government misdeeds.

The last time we discussed Illinois' Biometric Information Pirvacy Act, a 2008 law that gives citizens in the state rights governing how companies collect and protect their biometric data, it was when a brother/sister pair attempted to use the law to pull cash from Take-Two Interactive over its face-scanning app for the NBA2K series. In that case, the court ruled that the two could not claim to have suffered any actual harm as a result of using their avatars, with their real faces attached, in the game's online play. One of the chief aspects of the BIPA law is that users of a service must not find their biometric data being used in a way that they had not intended. In this case, online play with these avatars was indeed the stated purpose of uploading their faces and engaging in online play to begin with.But now the law has found itself in the news again, with a federal court ruling that millions of Facebook users can proceed under a class action with claims that Facebook's face-tagging database violates BIPA. Perhaps importantly, Facebook's recent and very public privacy issues may make a difference compared with the Take-Two case.

A recent Fourth Circuit Appeals Court decision found government agents at US borders need something more than the nothing currently required to perform searches of electronic devices. Cursory searches without suspicion are still fine in the Constitution-free zone, but forensic searches of cellphones need, at minimum, reasonable suspicion.This decision aligned the Fourth with the Ninth Circuit, where it was also determined forensic device searches require some sort of suspicion, even if performed at the border. A case out of Massachusetts (First Circuit) challenging a suspicionless device search has been allowed to move forward, possibly bringing another circuit into the mix and deepening the split.The Eleventh Circuit Appeals Court, however, has sided with the government and against citizens' privacy. It has upheld the lower court's determination that border device searches require no reasonable suspicion, no matter what the Supreme Court said in its Riley decision, which created a warrant requirement for phone searches. (via Jake Laperruque, Brad Heath)Karl Touset had his devices searched at the Atlanta airport after returning from an overseas trip. This followed some investigatory work by the government which suggested Touset might be involved in child pornography. The detainment and search was also prompted by money transfer service Xoom, which reported several people for making "frequent low money transfers" to people in "source countries" for child porn.Touset was met by CBP agents on arrival. Manual searches of his two phones revealed nothing, but CBP seized Touset's laptops and external hard drives. Those were forensically searched and child porn was discovered. These warrantless searches were challenged by Touset, but the Eleventh Circuit [PDF] immediately shuts down this line of reasoning by citing the Supreme Court.

The TSA is the worst. Super-secret watchlists can keep people from flying -- people deemed too dangerous to travel but not dangerous enough to arrest. This isn't the TSA's fault. Not these lists. Those are maintained by agencies who could possibly cobble together enough intel to build a flimsy case against these "dangerous" would-be travelers.The TSA, however, maintains its own database of travelers. It can't necessarily keep them from boarding airplanes, but it can give agents a heads up that the person in the queue probably needs to be detained and hassled. [via Boing Boing]

If you're of a certain age, then you will remember fondly Sesame Street, the educational programming once found on public broadcasting and now relegated to those with HBO subscriptions. The series dedicated its time to teaching children their letters and numbers, how to navigate childhood, and, above all, how to be kind to one another.The Happytime Murders, an R-rated film from the warped mind of Melissa McCarthy, which also has puppets at its center, is not Sesame Street. It features drug use, vulgar language, violence, sex, and the kind of anti-PC humor more akin to South Park than anything appearing on Sesame Street. To that end, it has used a tagline in its marketing material that reads "No Sesame. All Street." It specifically sets itself apart from the famed children's show, which is what made it somewhat odd that Sesame Workshop attempted to get a restraining order against The Happytime Murders over trademark concerns.

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You may not have heard the phrase "bootleggers and baptists," in regards to how strange bedfellows join forces in favor of certain regulations, but it's a useful concept. From a 1983 paper by Bruce Yandle, it discusses the odd realization that many people in industry often hope for regulation in a certain area knowing that the regulations will actually limit competition and benefit themselves. More importantly, it notes that those industry forces seeking to support such regulations will often hide behind those espousing moral reasons for the regulations. For the industry folks, it's a win-win: they get the regulation they want, without it appearing to be for their own benefit, but rather for the benefit of some righteous moral cause. Here's how Yandle describes the concept:

For years now, tinkerers everywhere have built custom-made PCs that use the open-source Kodi platform. Highly flexible and customizable, this hardware can often work notably better than the locked-down TV hardware (especially traditional cable boxes) that are the norm. But the hardware can also be used to streamline access to copyright content. And in more recent years, outfits like Dragonbox or SetTV have taken things further by selling users tailor-made hardware that provides easy access to live copyrighted content.Not too surprisingly, video producers and broadcasters haven't much liked this. And in recent months, Amazon and Netflix have joined forces with Hollywood to try and sue many of these operations out of existence. Last week they got a little help from FCC Commissioner Mike O'Rielly, who fired off a letter to both Amazon and Ebay demanding they do more to combat the listing of these devices on their respective websites. O'Rielly was quick to acknowledge that the FCC's authority over copyright is negligible, so he focused instead on these companies' unauthorized use of the FCC logo:

The government has dismissed more defendants from the J20 protest prosecution. A mass prosecution that ensnared journalists and activists -- along with those who may have actually participated in damaging property -- has gradually disintegrated as the government has undermined its own efforts again and again. (To say nothing of the multiple times the government tried to undermine the prosecution, starting with the mass First Amendment incursions of arresting journalists, before heading on to broadsides of the Fourth thru Sixth Amendments.)The government isn't done blasting holes in its feet just yet. Alan Pyke, reporting for ThinkProgress, says the prosecutorial fiasco the government is trying to abandon contained a host of Constitutional violations.

The EU's General Data Protection Regulation (GDPR) has only just started to be enforced, but it is already creating some seriously big waves in the online world, as Techdirt has reported. Most of those are playing out in obvious ways, such as Max Schrems's formal GDPR complaints against Google and Facebook over "forced consent" (pdf). That hardly came as a shock -- he's been flagging up the move on Twitter for some time. But there's another saga underway that may have escaped people's notice. It involves ICANN (Internet Corporation for Assigned Names and Numbers), which runs the Internet's namespace. Back in 2015, Mike memorably described the organization as "a total freaking mess", in an article about ICANN's "war against basic privacy". Given that history, it's perhaps no surprise that ICANN is having trouble coming to terms with the GDPR.The bone of contention is the information that is collected by the world's registrars for the Whois system, run by ICANN. EPAG, a Tucows-owned registrar based in Bonn, Germany, is concerned that this personal data might fall foul of the GDPR, and thus expose it to massive fines. As it wrote in a recent blog post:

The last time we checked in with PUBG Corp., the company behind the popular PlayerUnknown's Battlegrounds video game, creator Brendan Greene was remarking on how video games are afforded no intellectual property rights at all, despite that absolutely not being the case. This confused take on a key aspect of his industry came on the heels of the developer of PUBG suggesting that it was considering suing Epic Games, the makers of Fortnite, for copyright infringement because Epic had updated its own game with a "battle royale" mode. Like PUBG, this mode pits 100 people against each other in a last-man-standing battle format. It was at that time that we tried to remind PUBG Corp. that the idea/expression dichotomy in copyright law is a thing. While specific expression gets copyright, general concepts, such as generic game-modes and genres, do not. A battle royale game format is no more deserving of copyright than the first-person shooter genre.It seems that the lesson didn't take, however, as it was recently revealed that PUBG went ahead and filed a lawsuit in South Korea way back in January.

Depending on your view, the Supreme Court has either restored a bit of the Fourth Amendment with its recent decision, or simply reiterated its protections. Either way, the decision [PDF] in Collins v. Virginia does halt the expansion of the "automobile exception." The State of Virginia was hoping to see this extended all the way up people's driveways, but that runs contrary to the exception itself, which only grants law enforcement plenty of warrant-free searches if the vehicle is on a public road.There's a difference between houses and vehicles in Fourth Amendment caselaw, but this case combines them both. Decisions at multiple lower levels all found for the state. The Supreme Court disagrees. The automobile exception is predicated on a few traits specific to vehicles on public roads.

Last year, hackers and security researchers highlighted long-standing vulnerabilities in Signaling System 7 (SS7, or Common Channel Signalling System 7 in the US), a series of protocols first built in 1975 to help connect phone carriers around the world. While the problem isn't new, a 2016 60 minutes report brought wider attention to the fact that the flaw can allow a hacker to track user location, dodge encryption, and even record private conversations. All while the intrusion looks like like ordinary carrier to carrier chatter among a sea of other, "privileged peering relationships."Telecom lobbyists have routinely tried to downplay the flaw after carriers have failed to do enough to stop hackers from exploiting it. In Canada for example, the CBC recently noted how Bell and Rogers weren't even willing to talk about the flaw after the news outlet published an investigation showing how, using only the number of his mobile phone, it was possible to intercept the calls and movements of Quebec NDP MP Matthew Dubé.Again the flaw isn't new; a group of German hackers revealed the vulnerability in 2008 and again in 2014. It's believed that the intelligence community has known about the vulnerability even earlier, and the hackers note that only modest headway has been made since German hacker Karsten Nohl first demonstrated it. But the flaw has gained renewed attention in recent weeks after Senator Ron Wyden sent a letter to the FCC (pdf) complaining that the agency isn't doing enough (read: anything) to address it:

Last week we wrote about how the new proposal for the EU Copyright Directive has some really destructive ideas in it, and is very close to becoming official. Last week (on GDPR day) the various EU member states basically gave the proposal their blessing, and the only thing left is that the Legal Affairs Committee in the EU Parliament who will vote on June 20th (or possibly the 21st). Many, many experts have raised serious concerns about elements of the proposal -- including the link tax and the mandatory filters for content, both of which will create tremendous problems for innovation and speech online. We'll have even more on this next week, but for now, it's worth looking at just how messed up the lobbying process has gone as supporters of the bill (including big publishers and legacy copyright industries) want to get it across the finish line, apparently not caring very much how they do so.Earlier this week, MEP Julia Reda alerted the world to an article in EU Today, which described how the Christian Democratic Union of Germany (CDU) was using another party, the EPP, to basically shake down other MEPs to get them to vote, saying that if they didn't do so, they will effectively be stripped of all power, blocked from being given reports or parliamentary positions. At one point the article said the following:

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In the past few months we've written a few times about the problems with "The CLASSICS Act", which is part of an otherwise mostly unobjectionable copyright modernization bill. You can look back at the previous posts, which get deep into the weeds on the problems of the bill, but the short version is that in an attempt to change how pre-1972 sound recordings are treated (specifically, to get streaming companies to pay a brand new "performance right" license on those works), the CLASSICS Act creates this new right, but leaves out all of the supposedly balancing factors of federal copyright law -- including the time limit before these works should go into the public domain.Hilariously, for merely pointing out why it seems silly to give the record labels (and, yes, it's mostly the record labels) a brand new right, taking it away from the public, and doing so in a manner that does nothing for the public other than remove a right that it already had (oh, and which does nothing to incentivize the creation of new music), Billboard's famed tech hating columnist Rob Levine has posted a silly screed, claiming that anyone challenging the CLASSICS Act must be an "anti-copyright" activist.Levine has done this for a decade or so. If you dare to push back on extreme copyright maximalism, and point out that maybe it doesn't make sense, he will tar you as being against musicians or against copyright entirely. But that's silly. The problems of the CLASSICS Act are pretty clear. It is creating a brand new right for copyright holder (i.e., record labels) and in doing so, is taking that right away from the public. Even worse, it's doing so in a manner that doesn't bring with that new right any of the necessary and Constitutionally required protections for the public's own rights -- including the right for the work to move into the public domain in a reasonable amount of time.Senator Ron Wyden has introduced an alternative bill in the Senate, called the ACCESS to Recordings Act, that takes a more reasonable approach to the issue of pre-1972 sound recordings. Rather than just handing them one new right, while keeping them under obsolete state copyright laws, which block those works from entering the public domain with any other creative work created in the same time, Wyden's bill effectively just puts pre-1972 sound recordings on par with other pre-1972 works (and post-1972 works). It's still creating a brand new right out of thin air for legacy copyright holders -- and it's worth discussing why we want to do that -- but if we see it as a trade-off between giving copyright holders a performance right in exchange for getting those works into the public domain when they belong there, perhaps it's worth while.Organizations like the Internet Archive have come out strongly in favor of Wyden's bill, and if the RIAA and the record labels (and folks like Rob Levine) are actually being honest in claiming that the CLASSICS Act is necessary to get streaming royalties paid to performers, then they too should support Wyden's bill over the CLASSICS Act. It provides them exactly what they claim they want, a brand new streaming performance right for those works, but does not allow those works to be held out of the public domain for many extra decades.If they continue to insist that the CLASSICS Act must move forward over the ACCESS Act, then it's a pretty clear statement that they really wish to only give the labels this bit of government welfare, without compensating the public for taking these rights away from them. Let's take a wild guess how this will turn out...

In the wake of any mass or school shooting that occurs in America, which pretty much means most of the time that exists, everyone immediately runs to their preferred corners to blame their preferred target for the latest tragedy. I've pointed this out as often as I can, but the truth is that both gun violence and the incidence of mass shootings in America is a terribly complicated subject that deserves all the nuance and sober-thinking it could possibly be afforded. But, since this is America we're talking about, we tend to do the exact opposite and instead pick a single target and heap as much blame as we can on it. It's guns that's the problems. Or it's violent movies. Or video games. Those are the typical targets, and they have been for some time. Meanwhile, the shootings continue, nothing is done, and on it goes.House Rep. Diane Black of Tennessee knows why this is. We've had the wrong target all along. The real cause of school shootings is porn.

The FCC remains under heavy fire for its mindless assault on popular net neutrality protections. But the agency has also been facing widespread, bipartisan criticism for the FCC's decision to gut decades-old media consolidation rules -- specifically to help Sinclair Broadcast Group cement its $3.9 billion acquisition of Tribune.Like net neutrality, media consolidation rules traditionally enjoy bipartisan support because they protect local opinion diversity and speech, preventing one company from dominating smaller competitors. The Washington Post recently offered a piece highlighting the very real, negative impact mindless M&A mania in the broadcast sector has had on the quality and diversity of local news, which in many towns is now little more than an echo chamber of substandard drivel:

You may recall that the Swedish Pirate Party recently declared war on copyright trolls operating within Sweden. The party's newfound efforts, which had remained far too dormant for far too long, come on the heels of an explosion in so-called "settlement letters" being sent out to Swedish citizens. Those letters, as is typical elsewhere, are armed merely with an IP address and a claim of infringing behavior. Despite this, Danish law firm Njord Law has been able to collect millions of dollars in "settlments" after sending out notices to tens of thousands of account holders of IP addresses alleged to have engaged in copyright infringement. Njord Law was able to get this data from Swedish ISPs by spending a great deal of time in court, claiming that it needed this customer information in order to get justice for the copyright holders it represents.What makes that stated goal somewhat odd is that Njord Law appears to spend almost no time in the courtroom for literally anything else beyond getting this customer data. Despite the firm's own admission that nearly half of the recipients of these letters don't even bother to respond, the firm has brought exactly zero of these cases to the courtroom.

If a government employee suspects you might be carrying drugs, be prepared to engage in a nonconsensual, highly-intimate relationship with the feds and their helpers. A New Mexico resident suspected of carrying drugs was subjected to multiple anal probings and enemas before law enforcement finally decided he wasn't actually carrying any drugs on him (or in him). An 18-year-old Arizona woman was subjected to vaginal and anal probing when attempting to return from a short trip to Nogales, Mexico. Again, no drugs were found but the helpful medical "professional" decided to go from CBP accusation to painful probing, bypassing less intrusive options (x-rays, etc.) in his earnest desire to save America from illicit substances.Another incident with lots of probing and violations but zero drugs has landed in the Fifth Circuit Appeals Court. Gloria Bustillos (an American citizen) was attempting to return to El Paso, Texas after a visit to Juarez, Mexico when CBP agents decided she must be trafficking drugs. The indignities began immediately. From the decision [PDF]:

Just last week we wrote about how the big record labels have a hilariously long history of failing to grasp the importance of providing a good underlying technology service for music online and how they always overvalue the content, and assume that the technology and services are a commodity that is effectively worthless. And, yet again, that approach has failed them. The latest is the collapse and capitulation of Vevo, the service put together by a few of the major record labels to try to "take on" YouTube (even while using some of YouTube's underlying technology). Earlier this week, Vevo announced that it was shutting down its own site and app, which basically no one used anyway. Instead, it'll just focus on using YouTube, which was where everyone watched Vevo videos in the first place.Still, as with that article last week, this is yet another demonstration of how the labels overvalue the content and assume that the only thing that matters is the content, and that the technology is interchangeable. It's not. History has shown time and time again that without good technology and services for the public, content delivery platforms will fail. And, that's not to say the content isn't important -- it is. But it's the combination of both together than make a compelling service. Netflix figured this out. Spotify figured this out. Apple figured this out. YouTube figured this out. But the major labels still can't seem to let go of the idea that it's the copyright holders who have the leverage and should be able to (1) control everything and (2) take nearly all of the profits.Either way, we can add Vevo to the list, with MusicNet and Pressplay, of examples where the record labels thought that they could mostly ignore building a good and compelling service, because just having the content would make it work.

A few months ago I suggested that calling Facebook a bull in a china shop might not be fair to bulls. I fear the suggestion remains apt, as Facebook throws its considerable weight around in ways that, while potentially well-meaning, leaves all sorts of chaos in its wake. The latest evidence of this tendency relates to its recent announcement of policies designed to limit who can place political ads on Facebook.The problem is, that's what it's done: limit who can place ads on Facebook. But according to the Verge, all it's done is limit the ability for SOME people to post political ads. As in, only SOME of the candidates in any particular race.The Verge article notes that the Mississippi primary is set for June 5. But in one particular race for Congress, only the incumbent's authentication paperwork is in order, so only he is able to buy ads. As the day of the election draws near, his challenger finds himself locked out of being able to advertise through the medium.

Much has been made about Donald Trump walking back sanctions placed on ZTE, a partly state-owned Chinese cellphone manufacturer, for selling products to Iran and North Korea. (Fun fact: our law enforcement agencies still do business with tech companies that sell to blacklisted countries.) The company has already paid millions of dollars in fines to the US for these violations, even if the working theory is the company paid zero dollars and the Chinese government picked up the tab.The actual badness of ZTE is somewhere between the extremes resulting in sanctions and the trade war victim it tries to present itself as. Trump is a fan of trade wars, even if Pyrhhic stalemates are still considered righteous wins in the Trade War Game. Trump has decided to lift the US government boot from ZTE's mostly-unbruised neck as a gesture of goodwill or something after slapping the world's largest exporter of consumer goods with a bunch of tariffs that seem to be doing more harm than good on the home front.And, because it's Trump lifting the sanctions, lots of people are claiming it's unilaterally a bad thing for him to do. This has resulted in some really bad arguments for maintaining sanctions and there's one being made at TechCrunch. It begins with a horrendous attempt to quantify the "terribleness" of ZTE by using an incredibly meaningless stat.

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You may recall five years ago how WIPO -- the World Intellectual Property Organization, a UN body that is famous for its maximalist and expansionary approach to intellectual property -- delayed and then rejected the Pirate Parties International request to become an "observer." As we noted, the "observer" process is more or less a formality, and it's pretty common to see everyone who applies get approved. So it was a bit odd that WIPO rejected the Pirates.And it's even odder when you consider just who WIPO allowed in this year. As noted by Intellectual Property Watch, one of the organizations whose application was rubber-stamped this year to become a WIPO observer is that of the generically named "IP Centre." However, that group's website at the time that it was granted observer status claimed the following as its mission:

ESPN has long personified the cable and broadcast industry's tone deafness to cord cutting and TV market evolution. The company not only spent years downplaying the trend as something only poor people do, it sued companies that attempted to offer consumers greater flexibility in how video content was consumed. ESPN execs clearly believed cord cutting was little more than a fad that would simply stop once Millennials started procreating, and ignored surveys showing how 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel.As the data began to indicate the cord cutting trend was very real, insiders say ESPN was caught flat footed by the trend. Instead of adapting for the streaming era, the company spent years doubling down on bloated sports licensing deals and SportsCenter set redesigns.These decisions ultimately came back to haunt the "worldwide leader in sports," resulting in ESPN losing 16 million subscribers over seven years (and an estimated 17,000 defecting viewers per day). As the accountability hammer began to fall, ESPN execs tried to pretend they saw this coming all along. ESPN subsequently decided the only solution was to fire hundreds of longstanding sports journalists and support personnel, but not the executives like John Skipper (since resigned) whose myopia made ESPN's problems that much worse.This week, the Wall Street Journal offered up a report on the arguably stupid debate over whether ESPN's programming is partisan. In it was buried this little nugget indicating that the analysts ESPN paid to help prepare it for the future routinely told company leadership that cord cutting was a nothingburger that would never become a widespread issue. Even as late as 2014, when the stats were becoming very clear, analysts were telling execs they had nothing to worry about

Apple has released its latest transparency report. It shows the United States, by far, has the most interest in obtaining user content and data from the company.

Over the years, Techdirt has written about some pretty bad stuff happening in South Africa on the copyright front. For example, there was the Business Software Alliance using made-up figures in an attempt to revise copyright law in its favor. The South African music rights organization tried to put public domain works under copyright. And -- most insane of all -- the South African recording industry association ran a stupid "anti-piracy" campaign called "Shoot the Pirate", which resulted in actual violence. So it makes a pleasant change to report on some good news from the country. A new organization of creators has been formed to press for a more balanced copyright system in South Africa. They call themselves ReCreate, although apparently the group has no connection with the similar US organization Re:Create. Here are the South African ReCreate's basic principles:

Earlier this month, Facebook announced that it will wedge its way into an already-crowded corner of online commerce. The social networking site plans to use its giant storehouse of personal data to create a dating service, promising to help users find "meaningful relationships," not just "hookups," as Facebook CEO Mark Zuckerberg put it.It remains to be seen whether Facebook's new service will be a "Tinder-killer" that users flock to, or a flop for a company that's long been beset with privacy concerns. But there's one thing Facebook, its competitors, and its detractors should all be able to agree on. When a new dating service launches, it should rise or fall based on whether it can win the trust of users—not an arbitrary race to the Patent Office.Unfortunately, well before it built and launched an actual dating service, Facebook engaged in just such a race. The company applied for a stupid patent on "social dating" back in 2013, and earlier this year, the Patent Office granted the application.Take Established Methods, Add One "Social Graph"Online dating is a perfect example of a software-based business that truly doesn't need patents to be innovative. Companies have built such services based on what they hope will be useful or attractive to different groups of users, rather than engaging in arguments over who did what first. Patent tiffs are particularly pointless in a space like online dating, which builds on a long history of pre-digital innovation. Placing personal ads in newspapers has a history that dates back more than a century.The first claim of Facebook's US Patent No. 9,609,072 describes maintaining a "social graph" of user connections, then allowing one to request "introductions" to friends-of-friends. Subsequent claims are variations on the theme, like allowing users to include "preferences" and rank their possible matches.This application should have been rejected under the U.S. Supreme Court's 2014 decision in CLS Bank v. Alice. In that case, the high court made it clear that simply adding "do it on a computer"-style jargon to long-established ways of doing business wasn't enough to get a patent. Unfortunately, here, the Patent Office allowed Facebook to pull a similar trick. The company essentially took the idea of introducing available singles through friends-of-friends, added graphics, profiles and the "social graph," and then got a patent on it.The idea of finding good matches is positively ancient, whether people have been looking for the right lover, the right product, or the right business partner. It doesn't warrant a patent, and when patent trolls have claimed otherwise, they haven't fared well in court."Having two or more parties input preference data is not inventive," wrote U.S. District Judge Denise Cote in 2013, as she dismantled the patent of a shell company called Lumen View Technology LLC. "Matchmakers have been doing this for millennia."Patently PointlessTo be fair to Facebook, the company may have felt compelled to get its own stupid patent because there are so many other stupid online dating patents out there. In a phenomenon that's the patent equivalent of "mutually assured destruction," many tech companies have stockpiled poor-quality Internet patents simply to have a threat to fight off other companies' poor-quality Internet patents. This arms race, of course, costs many millions of dollars and benefits no one other than patent system insiders.In the world of online dating, wasteful, anti-competitive patent litigation isn't just theoretical. Earlier this year, Match Group sued up-and-comer Bumble for patent infringement. The suit was brought shortly after Match reportedly tried to purchase Bumble. And in 2015, Jdate sued Jswipe, accusing their competitor of infringing U.S. Patent No. 5,950,200, which tried to claim the idea of notifying people that they "feel reciprocal interest for each other." It was a basic patent that sought to encompass just about the whole concept of a dating service.This growing web of stupid patent claims won't stop Facebook from getting into online dating. It won't stop Facebook's giant competitors, like Match Group or IAC. But for an entrepreneur who wants to start a new business, the costly dueling patent claims will be a barrier. The battle to win the hearts and minds of online daters should be won with apps and code, not with patents.Republished from the EFF's Stupid Patent of the Month series.

We've talked about author Rob Reid many times on Techdirt, and had him on the podcast once before. Now, in what started as a project to promote his latest novel, Reid is hosting a podcast called After On, which tackles some pretty crazy real-world topics — from alien life to mind-reading technology — befitting a science fiction writer. This week, he returns to our podcast to discuss what it's like interviewing big thinkers about mind-bending ideas.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.

It's really no secret that traditional cable and broadband providers have some of the worst customer satisfaction of any companies in America. Comcast and Charter (Spectrum) in particular can usually be found stumbling around in last place in most satisfaction and support rankings. That's been particularly true of the American Customer Satisfaction Index, which routinely shows cable and broadband providers rank consistently worse than nearly any other company in any industry in America. In fact, these companies even tend to be ranked worse than Americans' experiences with government agencies like the IRS.And despite seemingly bi-annual promises by these companies that customer service is their top priority (remember when Comcast promised a new "Customer Experience VP" would fix everything?), it's actually getting worse.According to the latest ACSI report, high prices, bloated cable bundles, and terrible customer service continue to leave customers angry and frustrated:

We've been pointing out for a while that, however well-intentioned the GDPR may be, and however important the general concept of protecting user's private data is, that still doesn't make the GDPR any less ridiculous. Indeed, we've pointed out that the setup of the GDPR is such that it's becoming a regulatory nightmare because the compliance costs are high, and the setup of the rules are so vague that the liability risk remains high. I know that some people keep insisting that the requirements to be compliant aren't actually that difficult. Indeed, EU Commissioner Vera Journova recently claimed that complying with the GDPR was so easy that even she could do it.Upon hearing that, software engineer Matthias Gliwka wondered if the EU was actually complying with its own "so easy" GDPR rules. Turns out, not so much. As Gilwka noted, the EU Parliament's own website appears to violate the GDPR.