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Just as places like Russia are getting more aggressive with companies like Google and Amazon in seeking to stop online communications they can't monitor, Google made a move that really fucked over a ton of people who rely on anti-censorship tools. For years, various anti-censorship tools from Tor to GreatFire to Signal have made use of "domain fronting." That's a process by which services could get around censorship by effectively appearing to send traffic via large companies' sites, such as Google's. The link above describes the process as follows:

Look, trademark law can be confusing. If you're not spending some significant portion of your life either practicing trademark law or writing about trademark law, you might misunderstand how it works. In particular, the requirement for entities to be in the same business or market often times trips people up, with them either not realizing that this provision exists for there to be trademark infringement in most cases, or else not understanding exactly what it means to be competing in the same marketplace.But my understanding and generosity in this is heavily strained when a winery sues a construction company just because the winery built stuff on its property.

As Techdirt has pointed out a number of times, attacking the huge free online repository of academic papers, Sci-Hub, is wrong from a number of viewpoints. It's wrong because Sci-Hub is not a site aiming to profit from the labor of others, but is simply trying to make knowledge accessible to everyone. That's also what academic publishers like to claim they are doing, except that strangely many of the largest end up with profit margins of 30%-40%, and the papers aren't accessible to all, just to those rich enough to pay the "egregious price increases" that roll in every year. It's wrong because most of the research published was paid for by the public through their taxes, who surely ought to be able to access it from convenient repositories that are as easy to use as Sci-Hub. It's also provided free of charge for publishers to repackage, often with few changes. And yet the latter want people to pay again, typically $30 for a single article.It's not just wrong: it's really foolish on the part of the publishers to pursue Sci-Hub in this way. It simply provides another example of the Streisand Effect, with every legal action alerting more people to Sci-Hub's existence, and encouraging them to find out more. It's foolish, too, because it underlines the fundamental inability of publishers to stop people sharing online, which probably leads others to start doing so. Techdirt has already covered previous failures to shut down Sci-Hub. A new post on TorrentFreak provides us with an update on that continuing fiasco, with details of a new injunction obtained by one of Sci-Hub's arch-enemies, the American Chemical Society:

Another whistleblower will be going to jail. Thanks to the application of the Espionage Act, former FBI special agent Terry Albury wasn't able to defend his leaking of FBI internal documents to journalists (most likely The Intercept) by claiming he leaked to expose noxious FBI tactics and behavior. Defenses predicated on public interest aren't allowed in Espionage Act trials, meaning Albury's decision to plead guilty is there to limit the number of years he'll spend incarcerated, rather than an indication his leaks were meant to harm the government.Albury's attorneys released this statement to the Columbia Journalism Review shortly after his court hearing.

I haven't had a chance to write much about the latest attempt to update copyright law in the US, under the title of the "Music Modernization Act," but in part that was because Congress did something amazing: it came up with a decent solution to modernizing some outdated aspects of copyright law, that almost everyone agreed were pretty decent ideas for improvement. The crux of the bill was making music licensing easier and much clearer, which is very much needed, giving what a complete shit show music licensing is today.There was a chance to have this actually create a nice solution that would help artists, help online music services and generally make more works available to the public. It was a good thing. But... leave it to the RIAA to fuck up a good thing. You see, with there being pretty much universal support for the Music Modernization Act, the RIAA stepped in and pushed for it to be combined with a different copyright reform, known as the "CLASSICS Act."What is the CLASSICS Act? Well, it's actually based on a good idea -- fixing the mess that is pre-1972 sound recordings. We've written about this for years, and without getting too deep into the weeds, the basic thing is that prior to February of 1972, sound recordings were not covered by federal copyright. Compositions were still protected, but not the actual recording. To deal with that, various states set up their own state-based copyright laws for those works -- sometimes in statute, sometimes through common law. But, as part of the "transition" of bringing sound recordings into federal copyright, Congress also (ridiculously) said that sound recordings prior to 1972 would remain under whatever ridiculous state copyright laws existed until 2047. And thanks to Sonny Bono, that got pushed back to 2067. As Public Knowledge points out, that's created a ridiculous situation, keeping important works out of the public domain for nearly two centuries:

Kevin Poulsen of The Daily Beast has obtained a warrant application showing even the most ardent of surveillance state defenders aren't immune from the all-seeing eyes they feel are ever so essential to keeping this nation safe. It appears none other than former NSA and CIA boss Michael Hayden was subjected to the government's magnifying glass for allegedly leaking sensitive information to reporters.

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The French government has been pushing for a stupid "backdoors" policy in encryption for quite some time. A couple years ago, following various terrorist attacks, there was talk of requiring backdoors to encrypted communications, and there was even a bill proposed that would jail execs who refused to decrypt data. Current President Emmanuel Macron has come out in favor of backdoors as well, even as he's a heavy user of Telegram (which isn't considered particularly secure encryption in the first place).But now, the French government is apparently moving forward with its own, homegrown, encrypted messaging system, out of a fear that other -- non-French -- encrypted messaging apps will be forced into providing backdoors to their own systems:

ISPs like Comcast (and the politicians, think tankers and PR/policy consultants paid to love them) have been successful framing net neutrality as a partisan issue to sow dissent and stall policy progress and consensus. But the reality is that net neutrality and net neutrality protections continue to have overwhelming, bipartisan support. Survey after survey have shown that the overwhelming majority of Americans support net neutrality, and for most people preventing natural monopolies from being bullies (at least until somebody has the courage to embrace policies that encourage broadband competition) is a no brainer.This week another survey highlighted how opposition to Ajit Pai and the Trump FCC's net neutrality repeal is overwhelming. According to a new study out of the University of Maryland (pdf), 86% of the country opposes the FCC's decision to roll back net neutrality protections at ISP lobbyist behest. And again that opposition is bipartisan, with 82% of Republicans and 90% of Democrats opposing the FCC's obnoxiously-named "restoring internet freedom" repeal. While the sample size of 997 registered voters is arguably a little small, there's really nothing subtle about the findings:It's worth noting that since the last survey, Republican opposition to the repeal has actually grown from 75% to 82% as more people realize the ISP-manufactured reasons for the repeal are based largely on fluff and nonsense. There's absolutely nothing "partisan" about trying to keep the internet relatively open, healthy and neutral. There's nothing partisan about protecting consumers from natural monopolies who've literally bought and written state laws keeping their broken, anti-competitive status quo intact.While the survey found the traditional ISP arguments about net neutrality being "heavy handed" or "stifling innovation" work a little better on GOP voters, the public overall isn't really buying them:Of course majority public opinion doesn't automatically make something right, but in this case we've noted time and time again that the logic and data supporting this repeal are little more than hot garbage pushed by companies terrified of open competition and truly level playing fields. It's difficult to tap dance around the fact that the attempted repeal of net neutrality is arguably the worst government tech policy decision in the history of the internet, making the SOPA backlash look like a toddler's hiccup in comparison.And while ISP lobbyists believe they've "won" the battle by convincing Ajit Pai to ignore the will of the public, they'd be pretty foolish to think this giant policy middle finger aimed squarely at already angry consumers isn't going to result in mammoth and unforeseen political and policy blowback over the next decade. That's assuming the FCC repeal survives its looming court challenge, something that's no sure thing given all of the bizarre and unethical behavior Pai's agency engaged in as it tried to float this monumental turd of a policy proposal.

The masterplan for censorship: follow up a highly-questionable election with a "cybersecurity" law granting the government power to shut down critics and dissenting views. That's what's happening in Honduras, following the reinstallation of Juan Orlando Hernandez as president following an election "filled with irregularities."The new law mandates the policing of "hate speech," as defined by a government that would love to see its critics deprived of an online platform. Whatever the government declares to be hateful must be taken down within 24 hours. Failure triggers fines and third-party platforms will be held responsible for content created by users.

There are a lot of arguments to be made against subsidizing movie/TV studios. The best argument is this: the payouts to visiting studios rarely pay off for local taxpayers. Politicians love the side benefits -- rubbing elbows with producers, actors, and other studio personnel -- but there's nothing to be gained financially by paying a studio to film in your town. In one case, a city was promised 3,600 additional jobs. In reality, only 200 jobs materialized, all but 14 of those temporary construction work.Then there's the argument against using public funding to prop up an out-of-town industry. If there are extra tax dollars around, they're better spent locally, where they'll do the most good. Subsidizing businesses is always problematic. It skews incentives and allows governments to play favorites using the public's money.But the worst argument someone can make against subsidies is this one: subsidies should be content-based. Two members of the clergy and a state politician are bent out of shape because a subsidized TV series shoot resulted in the depiction of a historical figure in compromising positions.

For a few months now we've been noting how a "broadband deployment advisory panel" (BDAC) the FCC created to "solve the digital divide" has been plagued by scandal, resignation, and accusations of corruption. The panel was created last year to purportedly advise the Trump FCC on the best approach(es) to improving broadband cost and availability. But it didn't take long for reports to emerge that the panel was little more than a who's who of entrenched telecom industry interests, and since its creation its been plagued by a steady stream of disgruntled departures.This week, Pai's panel made headlines again after reports emerged indicating that the woman Pai picked to chair the panel has been arrested for defrauding investors as part of a fiber network deployment con:

As a reminder, our Working Futures scenario planning game around the future of work question is in full swing. If you haven't yet filled out our survey, please do so soon. There have been some great, thoughtful and insightful ideas provided so far, and it's already shaped some of how we'll be proceeding. We've been hard at work designing the specifics of how the "game" part of this will work, with our first workshop to be held next week. While that event is invite only, we still have a few open seats -- so if you'll be in San Francisco next week and think you have something you can add to this discussion, feel free to request an invite via the website. The event itself will be an interactive, guided game for developing a bunch of scenarios. Once we've had a chance to go through the results, we'll begin sharing some of the details -- but the overall results will only get better if you participate as well -- so go fill out the survey.

Pharma companies generally like to give the impression that their business is a win-win kind of thing: you get better, they get sales. But sometimes the mask slips, and the real strategy that lies behind the benevolent exterior is revealed. For example, back in 2014 we wrote about the CEO of Bayer, one of the biggest drug companies in the world, openly admitting it developed medicines for rich patients in the West that can pay high prices, not for those in places like India that need them just as much, but can't afford them.Now CNBC has spotted another revealing remark that probably reflects what many in the Big Pharma world say privately. It appears in a report called "The Genome Revolution" about a new generation of treatments based on powerful genomic techniques like CRISPR. They hold out the hope that many diseases can be cured permanently, for example by editing the patient's DNA to replace genetic code that is causing the problem. The report asks: "Is curing patients a sustainable business model?" It goes on to explain the issue here:

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Another day, another story of copyright gone stupid. This time it involves Major League Baseball, which is no stranger to stupid copyright arguments. Going back fifteen years, we wrote about Major League Baseball claiming that other websites couldn't even describe professional baseball games. There was a legal fight over this and MLB lost. A decade ago, MLB was shutting down fan pages for doing crazy things like "using a logo" of their favorite sports team. And, of course, like all major professional sports leagues, MLB has long engaged in copyfraud by claiming that "any account of this game, without the express written consent of Major League Baseball is prohibited", which is just false. MLB has also made up ridiculous rules about how much reporters can post online at times, restricting things that they have no right to actually restrict.The latest seems particularly stupid. Following on some sort of silly spat in which a guy named Kevin Clancy at Barstool Sports (the same brainiacs who wanted to sue the NFL for having sorta, not really, similar merchandise) got pissed off at a popular Twitter account called @PitchingNinja run by a guy named Rob Friedman, who would tweet out GIFs and videos of interesting pitches from MLB games. Apparently, the dudebro Clancy from Barstool sports pointed out that Friedman was violating the made up rules that MLB has on how much someone is allowed to share on social media, leading a ton of Clancy's fans to "report" Friedman. Twitter shut down Friedman's account -- leading said dudebro, Clancy, to celebrate.In a podcast interview with that very same Barstool Sports, who got his account shut down, Frideman notes that "there's such a thing as fair use." Indeed, his use of images and videos appears to be fairly obviously fair use. Since we can't see his account while it's suspended, we'll go off of the Yahoo Sports description of the @PitchingNinja account:

Russia's war on encryption and privacy has reached an entirely new level of ridiculous. We've noted for a while how Putin's government has been escalating its war on encrypted services and VPNs in the misguided hope of keeping citizens from dodging government surveillance. But things escalated dramatically when the Russian government demanded that encrypted messaging app Telegram hand over its encryption keys to the FSB. After Telegram refused, a Russian court banned the app entirely last Friday, and the Russian government began trying to actually implement it this week.It's not going particularly well.Telegram tried to mitigate the ban by moving some of its essential infrastructure to third-party cloud services. But Russian telecom regulator Roskomnadzor responded by blocking upwards of 16 million IP addresses, many belonging to Amazon Web Services and Google Cloud. Not too surprisingly, the heavy-handed maneuver resulted in connectivity problems across massive swaths of the Russian internet:

Germany's ridiculous hate speech law continues to wreak havoc in the stupidest ways possible. Giving social media companies 24 hours to remove poorly-defined "offensive" content has resulted in proactive removals targeting anything marginally questionable. Official complaints aren't much better. Government demands for removal have been no less idiotic than proactive deletions by Facebook and Twitter.It's a bad law. The only way bad laws can be followed is badly. Facebook is dealing with something new, thanks to its adherence to its own content policies. It's an argument over deleted content, but the push/pull tension has been reversed.

Whatever the actual numbers, it seems like some hefty percentage of technology news revolves around leaks of one kind or another. Whether it concerns government, corporate, or legal proceedings information leaking to the public, it happens enough that at this point the operating posture of any organization should probably be to expect leaks, rather than flailing at modernity and trying to stop them. Hell, if the White House can't keep what seems like literally anything under wraps, what hope does the average business have?Apple, of course, is not an average company. And, yet, when the company put out an internal memo warning its employees not to do the leaking, that memo almost immediately leaked to the press.

With site-blocking now fully en vogue in much of the world as the preferred draconian solution to copyright infringement, one point we've made over and over again is that even this extreme measure has no hope of fully satisfying the entertainment industries. Once thought something of a nuclear option, the full censorship of websites will now serve as a mere stepping stone to the censorship of all kinds of other platforms that might sometimes be used for piracy. It was always going to be this way, from the very moment that world governments creaked open this door.And it appears it isn't taking long for the entertainment industries to want to take that next step, either. As the debate about Kodi addons rages, and as governments begin to clamp down on the platform at the request of the entertainment industry, several industry players at an IP forum event in Russia have started announcing plans to push for app-blocking as the next step.

Law isn't simple, and truly learning about it takes more than a few short primers or even an in-depth guide or two — which makes it the perfect topic to explore via the medium of podcasts. This week, we've got a pair of guests who are doing exactly that: Ken White of Popehat fame, who recently launched the Make No Law podcast about First Amendment issues, and Elizabeth Joh, co-host of the What Trump Can Teach Us About Constitutional Law podcast. Instead of picking their brains about the law itself, we've got an episode all about their experience using podcasts to teach people about legal issues.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 many years now, various internet companies have released Transparency Reports. The practice was started by Google years back (oddly, Google itself fails me in finding its original trasnparency report). Soon many other internet companies followed suit, and, while it took them a while, the telcos eventually joined in as well. Google's own Transparency Report site lists out a bunch of other companies that now issue such reports:We've celebrated many of these transparency reports over the years, often demonstrating the excesses of attempts to stifle and censor speech or violate users privacy, and in how these reports often create incentives for these organizations to push back against those demands. Yet, in an interesting article over at Politico, a former Google policy manager warns that the purpose of these platforms is being flipped on its head, and that they're now being used to show how much these platforms are willing to censor:

Over the weekend Trump tweeted:

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A 19-year-old Canadian is being criminally-charged for accessing a website. The Nova Scotian government's Freedom of Information portal (FOIPOP) served up documents it shouldn't have and now prosecutors are thinking about adding charges on top of the ten-year sentence the teen could already be facing. (via Databreaches.net)Journalists first spotted the problem April 5th, when the FOI portal was taken offline. The Internal Services Minister, Patricia Arab, refused to provide details about the portal's sudden unavailability. It wasn't until the following week that the press was given more information and those affected notified.

As we've noted previously, Comcast has enjoyed a little more resilience to the cord cutting threat than satellite TV and telco TV providers--thanks to its growing monopoly over broadband. As DSL users frustrated by lagging telco upgrades switch to cable to get faster speeds, they're often forced to sign up for cable and TV bundles they may not want (since standalone broadband is often priced prohibitively by intent). Of course that doesn't mean these users or stick around (or that they even actively use the cable subscription they pay for), but it has helped Comcast all the same.There are some indications that advantage isn't helping as much now that we're seeing so many streaming services come to market. At least one Wall Street research firm predicts that Comcast's cord cutting defections will double this year, though those totals still remain modest (400,000) compared to the company's total number of pay TV (22.4 million) and broadband (25.5 million) subscribers.In the hopes of slowing the slow but study climb in cable TV defections, Comcast has announced that it will soon begin bundling Netflix subscriptions with its existing services, in what it claims is a quest to provide "more choice, value and flexibility":

The UK High Court has handed down a win (and a loss) in the Right to be Forgotten column. Two plaintiffs seeking delisting of information about their past criminal exploits had their cases considered by the court. Only one of them is walking away with a court order for delisting. The other one will apparently have to live with his past.

Last October, Techdirt wrote about an important decision by the Irish High Court in a case concerning data transfers from the EU to the US. The original complaint was brought by Max Schrems in the wake of revelations by Edward Snowden back in 2013 that the NSA had routine access to user information held by companies like Facebook. As the post explained, the judge found that there were important legal issues that could only be answered by the EU's highest court, the Court of Justice of the European Union (CJEU). The High Court said that it intended to refer various questions to the CJEU, but has done so only now, as Schrems explains in an update on the case (pdf). He points out that the eleven questions sent to the CJEU (found at the end of the document embedded below) go further than considering general questions of law:

In 2015, with much fanfare, the MPAA released its own search engine of sorts as WhereToWatch.com. The idea behind the site was to combat the argument that people pirate films because there are too few legal alternatives. The MPAA built the site to show where those legal alternatives do in fact exist. Left unaddressed, of course, were questions about how useful and convenient those alternatives were, how users had to navigate through a myriad of restrictive policies for those legal alternatives, and how terrible Hollywood must be in promoting its legal alternatives if the only thing needed to stop all this piracy was an MPAA search engine.On top of that, WhereToWatch served as something of an excuse for many draconian polices the MPAA was pushing for all along. By being able to point to the search engine as "proof" that all kinds of legal alternatives to piracy were readily available, the MPAA argued that policies such as "notice and staydown" as well as site-blocking were legitimate pursuits. Somewhat predictably and with a heaving helping of irony, WhereToWatch received multiple DMCA takedown notices for its search results, demonstrating how perilous DMCA takedowns have become.And now comes the news that the MPAA actually shuttered the site months ago.

For years we've documented how the internet of broken things industry and evangelists have contributed to a global privacy and security shitshow. The rush to connect everything from tea kettles to Barbie dolls to the internet without including even basic privacy or security standards has resulted in a massive security problem few seem interested in actually fixing. As a result we're not only less secure and more at risk for privacy violations, but these devices are now routinely contributing to some of the most devastating DDoS attacks history has ever seen.A year or so ago Bruce Schneier penned what was probably the best explanation of why nothing in the IOT chain of dysfunction seems to improve:

An at-home dental appliance company has a problem with the website Lifehacker. It's the sort of problem it thinks can only be solved by filing a baseless defamation suit. SmileDirectClub -- maker of DIY teeth-straightening equipment -- is taking the site to court for an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The title has since been changed to suggest any "at-home orthodontics" could fuck up your mouth, but the wording of the article remains unchanged.The gist of the article is that straightening teeth requires direct oversight by qualified professionals -- something that seems unlikely to happen with at-home orthodontics. The author of post -- citing dental professionals and a few online forums -- notes that without proper, direct care, in-home dental appliances actually can cause worse alignment or result in the loss of teeth.

The Trans Pacific Partnership (TPP) Agreement is deeply unpopular with Americans for a variety of reasons (some of which we'll discuss below). Because of its unpopularity, both Donald Trump and Hillary Clinton denounced the agreement during their campaign for the Presidency. Trump's denunciation seemed a lot more genuine -- he's argued against free trade and in favor of protectionism for quite a long time. Clinton's denunciation was highly suspect, as she had long been a supporter of the TPP, and many people expected that, if elected, she'd flip flop back to support the agreement. Of course, she didn't get elected... but now it's apparently, Trump who has flip flopped to now supporting TPP.

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The Inspector General of the FBI has released a report detailing the incidents leading up to FBI Deputy Director Andrew McCabe's firing. Whether or not these were the reasons the White House chose to can him isn't confirmed, but the report [PDF] does show there was plenty of justification for his termination.According to the report, McCabe violated FBI policy multiple times during the investigation process with dishonest or misleading answers while under oath. On top of that, his unauthorized disclosure of the status of a Clinton Foundation investigation to a Wall Street Journal reporter violated department policy on media relations.The leaks appear to have been McCabe's damage control efforts. The Wall Street Journal had already published an article detailing McCabe's involvement in his wife's unsuccessful 2015 state senate campaign. During this run, McCabe's wife received $675,000 from a political action committee run by the state's governor (Terry McAuliffe) who had "long-standing ties to Bill and Hillary Clinton."Given Clinton was one of the candidates in the 2016 presidential race, suggestions were made that McCabe should recuse himself from the investigation. The FBI's official statement said McCabe's supervision of the investigation did not begin until after his wife's senate campaign was over. But the WSJ article painted a different picture: McCabe's office provided personnel and resources to the Clinton Foundation investigation while his wife was still campaigning (and receiving money from a PAC tied to a Clinton buddy).With another article two days away, the WSJ reached the FBI for comment on McCabe's involvement. At that point, McCabe apparently took a hands-on approach. The info the WSJ had contradicted McCabe's own narrative about recusing himself from the investigation. Instead, the journalist had sources stating McCabe had tried to kill the Clinton Foundation investigation.

The FBI continues to push its "going dark" theory. It's not interested in the truth. It would rather have a legislative mandate or a string of favorable court decisions than utilize options vendors have made available. These are the candles the FBI will forgo to publicly curse the darkness. A recent Inspector General's report made it crystal clear: those charged with finding a way to crack open the San Bernardino shooter's cell phone slow-walked their search in hopes of ending up with a judicial mandate forcing Apple to crack its own encryption.The complaints about the darkness continue, even as vendors like Cellebrite have shown they can crack any iPhone given enough money and time. There are solutions out there, but the FBI doesn't want them. Cellebrite isn't the only company with an iPhone crack for sale. As Joseph Cox reports for Motherboard, another device has surfaced that can brute force its way past iPhone lock screens. The FBI may continue its disingenuous push for weakened encryption, but law enforcement agencies around the nation are more than willing to pay for a solution that doesn't involve Congressional reps or federal judges.

The government of Singapore is working its way towards regulating "fake news." This is already a problem, as no government that has tackled this issue has been able to define what "fake news" is, other than news the government doesn't like. A government granting itself the power to unilaterally remove competing narratives is something that never goes out of style, and those picking up the "fake news" torch from the Twitter feed of the leader of the free world tend to be of the authoritarian variety.The government's "Select Committee on Deliberate Online Falsehoods" sought input from citizens on the proposed legislation. Then it recast that input by memorializing it in a way that downplayed, if not excised completely, any input that didn't align with the government's views.Freelance journalist Kirsten Han stated her opinion on several matters during the committee's hearing, only to find out the government's prepared summary of the session portrayed her dissenting opinions as roughly concurring with the committee's views.

This week, our first place comment on the insightful side is a long one from Stephen T. Stone, responding piece by piece to a comment that was packed full of errors about Section 230, the first amendment, and... everything:

Five Years AgoThis week in 2013, Ken White returned to fill us in on the massive fallout from Prenda's hearing (as predicted), while the folks involved scrambled to get out of trouble — often by throwing each other under the bus. Paul Hansmeier played innocent, as did John Steele in his filing, both of them trying to turn the blame onto Brett Gibbs, who hit back with his own defence. And while Prenda and Paul Duffy fought hard to block any new evidence from being brought into the case, Judge Wright was having none of that and accepted new evidence from Morgan Pietz.Ten Years AgoThis week in 2008, we found out that e-voting problems were in some cases even worse than people thought, but while Congress was failing to do anything about it, some states were hard at work on fixing things. Meanwhile, we got a pair of examples of people using litigation instead of, you know, actually competing: ConnectU's settlement with Facebook, and Mattel/Hasbro's ongoing attempts to get rid of Scrabulous. And we had a big, long post looking at the deluge of amicus briefs in the Supreme Court's critical Bilski case on software and business model patents.Fifteen Years AgoThis week in 2003, there was lots of talk about spam, including the legal landmine for employers created by porn spam, and the overall fact that the battle against spam was not going well. One spammer tried to sue an anti-spammer for signing him up for a bunch of spam via his publicly posted business address, but the court very quickly smacked that down. And then the Senate introduced an anti-spam bill, though there was no reason to believe it would accomplish much.

In today's fast-paced news cycle it's easy to overlook the important things: the copyright status of the monkey selfie.Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.It cited several other cases as analogs. As in Albers v. Eli Lily, "this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that 'the investment of public resources already devoted to this litigation will have some return.'" Furthermore, as was the case in Ford v. Strickland, "a decision in this developing area of the law would help guide the lower courts."Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from "manipulating precedent in a way that suits their institutional preferences."

Whenever companies and brands begin behaving badly when it comes to enforcing their trademarks, one common reaction from outsiders is "why?" The reason for that singular question can vary, whether it stems from a lack of true infringement taking place to the seemingly harmless nature of use in dispute to everywhere in between. But perhaps there is no better example of a trademark dispute inducing a "Why?" than in the news that In-N-Out is suing an Australian burger company without doing any real or regular business on that entire continent.

Silicon Valley companies have historically not seen eye to eye with giant ISPs, as we saw during the early years of the net neutrality debate. But Google and Facebook recently put aside their differences and joined forces with Comcast, AT&T and Verizon to successfully kill an attempt to impose some fairly-modest privacy standards in California. California's proposal closely mirrored the FCC privacy rules ISPs lobbied the GOP and Trump administration to kill last year. Those rules simply required that companies clearly outline what data is collected and sold, and provide working opt out tools.As the EFF noted at the time, sidelining this proposed law required a lot of lying on the behalf of Facebook and Comcast, including claims that the modest protections would harm children, prevent law enforcement from doing its job (not true), reduce consumer security, increase internet popups (what?) and even somehow "embolden extremism." It's pretty clear lobbyists didn't have much problem exploiting the (then) recent tragedy in Charlottesville to their tactical advantage, notes the EFF:

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a "patent troll." The court ruled [PDF] that the phrase "patent troll" and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities – or "trolls" – are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.The case began back in December 2016 when patent assertion entity Automated Transactions, LLC ("ATL") and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL's litigation in a way that was defamatory. The court summarizes describes the claims as follows:

Remember the Fairness Doctrine? It was an incredibly silly policy of the FCC from 1949 to 1987 requiring some form of "equal time" to "the other side" of controversial matters of public interest. It's a dumb idea because most issues have a lot more than two sides, and simply pitting two arguments against one another tends to do little to elucidate actual truth -- but does tend to get people to dig in more. However, despite the fact that the fairness doctrine was killed more than 30 years ago, Republicans* regularly claim that it's about to be brought back.* Our general policy is not to focus on political parties, unless it's a necessary part of the story, and in this case it is. If you look at people freaking out about the supposed return of the fairness doctrine (which is not returning) it is always coming from Republicans, stirring up their base and claiming that Democrats are trying to bring back the fairness doctrine to silence the Rush Limbaughs and Sean Hannitys of the world.But that's why it's so bizarre that Ted Cruz has taken to the pages of Fox News... to incorrectly claim that the fairness doctrine applies to the internet based on his own tortured (i.e. dead wrong) reading of Section 230 of the Communications Decency Act. We already discussed how wrong Cruz was about CDA 230 in his questions to Mark Zuckerberg (while simultaneously noting how ridiculous Zuck's responses were).In his Fox News op-ed, Cruz argues that if a platform is "non-neutral" it somehow loses CDA 230 protections:

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What a weird week for everyone promoting FOSTA/SESTA as being necessary to takedown Backpage.com. After all, last Friday, before FOSTA/SESTA was signed into law, the FBI seized Backpage and all its servers, and indicted a bunch of execs there (and arrested a few of them). The backers of FOSTA/SESTA even tried to take credit for the shutting down of the site, despite the fact that the law they "wrote" wasn't actually the law yet. Separately, as we pointed out, after the bill was approved by Congress, but before it was signed into law, two separate courts found that Backpage was not protected by CDA 230 in civil suits brought by victims of sex trafficking.On Wednesday, President Trump finally signed the bill despite all of the reasons we were told it was necessary already proven to be untrue (and many of the concerns raised by free speech advocates already proven true). And, on Thursday, in the civil case in Massachusetts (the first to rule that Backpage wasn't protected by CDA 230 for ads where it helped create illegal content), an amendment complaint was filed, this time with FOSTA/SESTA included. Normally, this wouldn't make any sense, but thanks to the unconstitutional retroactive clause in FOSTA/SESTA it could possibly apply (assuming the judge ignores the Constitutional problems).From the amended complaint:

One of the striking features of copyright is how over three centuries, it always seems to become longer, broader and stronger. Just as a matter of probabilities, you might expect copyright to become a little shorter once in a while, but strangely that doesn't appear to happen. One consequence of the copyright ratchet is that the public is often cheated. Copyright is based on a bargain: that a time-limited, government-backed intellectual monopoly will be granted to creators in return for allowing the work to enter the public domain at the end of that limited period. Instead, what has happened repeatedly is that the copyright term has been extended before works enter the public domain, thus denying society its promised payback. If anything deserves to be called "copyright theft", it is this.The copyright ratchet is on display once more in a new op-ed Michael Geist has written for The Globe and Mail. He reports on some documents obtained under Freedom of Information laws, including a 30-page reform proposal from the Canadian Music Policy Coalition, an umbrella group representing 17 music associations. It's a submission to the Canadian government regarding a copyright review that is currently underway in that country. According to Geist, the document calls for:

As you have doubtless noticed, Cambridge Analytica has been much in the headlines of late. There is still plenty of disagreement about the extent to which the company's profiling tools provide the kind of fine-grained categorization of people that it claims, and whether it played a significant -- or indeed any -- role in deciding key elections, both in the US and elsewhere. What is not disputed is that such profiling is widely used throughout the online world, mostly to sell ads, and that it is likely to become more accurate as further data is gathered, and analytical techniques are honed. The continuing flow of reports about Cambridge Analytica and related companies has therefore at least served the purpose of alerting people to the important issues raised by this approach. Against that background, news that UK police in the north of England are applying similar techniques is troubling:

More than 750 towns and cities across the United States have been forced to build their own networks if they want anything close to next-generation broadband. These towns and cities aren't doing this because it's fun, they're doing it as an organic response to market failure, and the growing cable monopoly that fuels high prices, poor coverage, and abysmal customer service. By and large the incumbent response to this shift hasn't been to offer better, cheaper service, but to literally write and buy protectionist laws in more than 21 states prohibiting locals from making their own decisions.ISPs also like to demonize these efforts as automatic taxpayer boondoggles, which not only isn't true (municipal broadband, like any other business plan, can be well or poorly designed), but ignores the fact that these towns and cities wouldn't be getting into the broadband business if existing service wasn't so expensive and shitty across wide swaths of America.Not too surprisingly, the Trump administration's decision to protect these disliked monopolies by killing net neutrality and broadband privacy protections is only driving more interest in such alternative solutions. For example, the ACLU has issued a new report stating that if cities want privacy and a neutral internet, they should join the trend of building their own networks:

We'll keep this short and sweet, but it's always good to highlight when the legal system manages to smack around organizations that try to use intellectual property laws to flatly violate people's rights. You will hopefully recall that in 2017, Iowa State University began blocking any requests by NORML, a group advocating for pro-marijuana laws, to use the school's iconography. NORML sued the school, specifically over threats the school made against the alums running the group over use of its trademarks and a requirement that the school have the right to approve any design for apparel by NORML that included any references to the school. NORML argued that because the school had initially approved their uses, only to flipflop largely under pressure from the conservative state legislature, this was a violation of its free speech rights.The courts agreed, declaring that ISU had violated NORML's First Amendment rights. The State Appeal Board voted to pay NORML roughly $350k in compensation, leading to many breathless headlines about just how much taxpayer money the school's idiotic actions had wasted.And now we learn that the cost will actually be much higher, with the courts ordering the state to pay $600k in attorney's fees.

The Center for Democracy and Technology has put together an important letter from experts on the importance of security research. This may sound obvious, but increasingly we're seeing attacks on security researchers, where the messenger is blamed for finding and/or disclosing bad security practices or breaches -- and that makes us all less safe by creating chilling effects.