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For years the traditional cable and broadcast industry has gone to comedic lengths to deny that cord cutting (getting rid of traditional cable TV) is real. First, we were told repeatedly that the phenomenon wasn't happening at all. Next, the industry acknowledged that sure -- a handful of people were ditching cable, but it didn't matter because the people doing so were losers living in their mom's basement. Then, we were told that cord cutting was real, but was only a minor phenomenon that would go away once Millennials started procreating.Of course none of these talking points were true, but they helped cement a common belief among older cable and broadcast executives that the transformative shift to streaming video could be easily solved by doubling down on bad ideas. More price increases, more advertisements stuffed into each minute, more hubris, and more denial. Intentional blindness to justify the milking of a dying cash cow -- instead of adapting.But we're slowly but surely reaching the point where the rise of the streaming video revolution can't be denied, with data indicating it's worse than anybody thought. While the pay TV sector lost another 1 million subscribers last quarter, those totals don't factor in those that bought a new home or rented a new apartment, but chose not to sign up for cable. Many of these folks are dubbed "cord nevers," having never bought into the value proposition of paying $130 more per month for a bloated bundle of largely-unwatched reality TV channels from a company that treats paying customers with disdain.Meanwhile, a new report by eMarketer this week indicates that the pace of customer defections is notably higher than most previous estimates. The firm notes that it was forced to reduce its estimate for US TV ad spending due to faster-than-expected growth in cord-cutting:

Facebook has won its challenge against a warrant gag order. Unfortunately, it's more of a case of the government forfeiting than the social media giant raising a successful challenge.Details from the case are limited, but the warrant appears to target protesters arrested during Trump's inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government's demand for 90 days of Facebook activity from three accounts. But there's no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work.Here are the details, from Zoe Tillman at Buzzfeed.

This week, our first place winner on the insightful side is Derek Kerton, with an excellent response to the game developer that has decided to DMCA PewDiePie videos (though it is very generally applicable):

Five Years AgoThis week in 2012, we were watching as the House of Representatives got ready to move forward with extending the FISA Amendments Act despite huge problems and a worrying lack of information about secret interpretations of the law. Of course, it quickly passed — basically thanks to lots of lying and misrepresentation about what the bill actually contained. Meanwhile, having failed to get new cybersecurity legislation passed, the White House was looking to tackle the issue with an executive order, the draft text of which was leaked at the end of the week. Of course, we were also worried about efforts to make cybersecurity enforcement the job of the ITU, an idea with a whole host of problems of its own.Ten Years AgoThis week in 2007, we were appalled at (and slightly amused by) the pathetic attempts at "innovation" on display in the legacy recording industry, such as the hype around the "ringle" — a combination of a single and a ringtone! Imagine that! Similarly, Universal Music seemed to have gotten the message that subscription services are a good idea, but gotten the details of the implementation entirely wrong. It was also around this time that we started to hear complaints from sound engineers and audiophiles about iPods and earbuds destroying the sound quality of music — though perhaps that was just a way to get press, much like blaming Facebook for destroying the economy. Meanwhile, Prince, unpredictable as always, decided to sue eBay, YouTube and The Pirate Bay for copyright infringement.Fifteen Years AgoThis week in 2002, the bizarre blanket ban on video games we mentioned last week quickly started to fail in the courts, the battle between China's censors and Google heated up then fizzled out, and a well-known AP writer joined the ranks of people totally misunderstanding the digital music debate. The music industry was doing its best to paint Kazaa and Morpheus as infringers, while Morpheus was seeking summary judgement saying it doesn't violate copyright law. And one on-the-money essay explained how the industry was killing the goose that lays the golden eggs by trying to destroy digital music.

Okay, here's a fun post for a Friday evening: Earlier this week, I was at World Hosting Days, where I gave a keynote speech about the importance of CDA 230 and things like intermediary liability protections -- and why they are so important to protecting free speech online. The emcee of the event was Mike Godwin, who (among his many, many accomplishments over the years as an internet lawyer and philosopher) coined Godwin's Law. The organizers of the event, realizing that they had the guy who coined Godwin's Law and the guy (me!) who coined the Streisand Effect in the same place at the same time, thought it might be fun to have the two of us talk about these two memes.And, voila. Here's the video of the two of us discussing it. We're also planning to release this as a podcast soon, so if you already listen to the Techdirt podcast and want to wait for that, feel free... But, if you want to skip ahead and watch/listen now, go for it.

Concentrated attacks on technology tools that can sometimes, but not always, be used for nefarious purposes have quite a long history, from Google and Wikipedia, to suing online sites like Craigslist over how users use the service. Even torrent technology itself, having become a four-letter-word that the content industry has managed to tether to copyright infringement, is nothing more than a tool with plenty of legitimate uses.Well, it appears that the latest target in the music industry's crosshairs are sites that rip YouTube videos into MP3 format.

Back in 2011, you might recall that AT&T and Verizon stopped offering users unlimited wireless data plans. Taking advantage of a lack of competition at the time, the duo worked in concert to shove users toward confusing, metered plans that imposed a usage cap, then socked users with overage fees upward of $15 per gigabyte. When users refused to migrate to these plans, both companies spent years making life as difficult as possible for these subscribers, AT&T going so far as to block users from accessing Facetime until they switched to these more expensive, metered plans (but who needs net neutrality rules, right?).All the while, both companies repeatedly insisted that nobody actually wanted simpler, unlimited plans. That was until increased competition from T-Mobile (thanks in large part to regulators blocking AT&T's attempted acquisition of the company) forced both companies to bring back their unlimited data plans. And while Wall Street has been whining for months that competition is preventing these companies from nickel and diming their customers, consumers generally like the return to unlimited data.Case in point: a new study by JD Power and Associates indicates that unlimited data customers are consistently more impressed with the performance of their connections than their capped and metered counterparts. More specifically, users on unlimited data plans state that they experience fewer network problems of all kinds than metered users:

Harvard is one of the most prestigious universities in the world (and its graduates often feel the need to remind you of that). But apparently Harvard is more worried about protecting its reputation from the elite than actually fulfilling its stated mission of "educating the citizens and citizen-leaders for our society." In an act of utter cowardice, it withdrew a Visiting Fellowship that it gave to Chelsea Manning just a couple days after announcing it -- all because the CIA and its friends got upset. Harvard caving in to the CIA is not a good look.Two days ago, Harvard's Institute of Politics at the Kennedy School announced that Chelsea Manning would be a "Visiting Fellow" for the 2017-2018 school year. She was joining others -- including former Trump press secretary Sean Spicer, former Trump campaign manager Corey Lewandowski and Clinton campaign manager Robby Mook. The Visiting Fellows program is basically a high falutin' way of saying that these people would come give some talks at the school. But the point of the program -- in theory -- is to expose people to a variety of ideas from a variety of different perspectives. Personally, I think honoring Spicer, Lewandowski and Mook is fairly ridiculous, but I respect and support Harvard wishing to bring them -- or anyone -- in to talk about their experienceBut, of course, anything having to do with Manning is controversial to some -- mostly those who have bought into a misleading line of tripe from cable news. And thus people freaked out that Harvard was including her. Among those most triggered by Harvard planning to have Manning come talk to students was the CIA. On Thursday, former CIA depute director (and former acting director) Michael Morell resigned from his own fellowship (in a different program) at the Kennedy School in protest. His letter is full of debunked bullshit.

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Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate.However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked:

For years one of the greasier lobbying and PR tactics by the telecom industry has been the hijacking of minority and civil rights groups to help parrot awful policy positions. Historically, such groups are happy to take financing from a company like Comcast, in exchange repeating whatever memos are thrust in their general direction -- even if the policy dramatically harms their constituents. The tactic of creating or "co-opting" such groups helps foster the illusion of broad support for awful, anti-consumer policies, whether that's support for the latest competition-killing merger or support for the assault on net neutrality.Because this cozy quid pro quo is implied but never put into writing, ISPs traditionally respond with breathless indignance to the mere suggestion they're using minority voices as policy props. But Comcast has found that tactic consistently so successful, a few years back it went so far as to give its top lobbyist, David Cohen, a new title: "Chief Diversity Officer." Said title not only lets Cohen profess the company's unwavering dedication to minorities with one hand while undermining them with the other, but helps him skirt the government's flimsy restrictions on lobbying.A few weeks back boss Ajit Pai announced the creation of a new "Advisory Committee on Diversity and Digital Empowerment," a group Pai insisted was established to champion the voice of every American, “no matter their race, gender, religion, ethnicity, or sexual orientation." But as we've noted before, Pai's breathless support of closing the digital divide is utterly illusory, as his policies (ranging from gutting popular consumer protections to protecting the cable industry's monopoly over the cable box) consistently involve undermining consumer interests while encouraging industry rate hikes.Pai has appointed Julia Johnson, president of a consulting firm called NetCommunications, to lead the Advisory Committee. Not too surprisingly, The Intercept was quick to highlight how Johnson has a long history of actively undermining minority interests on behalf of the Multicultural Media, Telecom & Internet Council, a Comcast, AT&T and Verizon funded vessel specifically designed to help provide illusory minority community support for these companies' positions:

First, let's all just take a moment to drink in that headline above. 2017, people: it's a weird time to be alive. In any case, you likely have heard of Netflix's hit original show, Narcos. The show follows the exploits of Pablo Escobar's drug organization and was once the subject of Escobar's brother demanding a billion dollars from Netflix over the portrayal. Netflix, of course, was the disruptive new streaming service for movies and television that has since decided to go the route of copyright protectionist now that it is producing its own original content. It's a strange look for a company that exploded on a model of convenience over piracy, raking in tons of legit dollars by simply being an option better than or comparable to pirating films and television. Rather than continuing to compete in that arena, the company has begun to go the way of Big Content, firing off all kinds of DMCA notices.And now threatening to shoot people and their families for pirating Netflix content? Well, not really, of course. I'm sure the folks at Netflix thought it would be funny to have actors from Narcos do so in character in France. But watch the video Netflix put out for yourself.If you cannot see the video, the TorrentFreak link above has a nice summary of it.

Various authority figures have attempted to define journalism, usually excluding their critics. A recent post here covered a police chief who decided he could determine a journalist's credibility based almost solely on their web presence. Trimming down the definition of "journalist" allows government officials to limit their accountability by treating only certain outlets as credible.So, we already have government authorities attempting to define what is or isn't a "real" news outlet. Jonathan Peters of the Columbia Journalism Review reports a government authority is attempting to define what is or isn't news. In this case, it's the Vermont State Police.

Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons.Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms.He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen.Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens.Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him.

The ATF isn't restrained by oversight. It's hardly restrained at all. It's made a business of fake stash house sting operations, where downtrodden suckers looking for cash are persuaded to rob a ficitonal stash house of its fictional drugs. The problem is the government then bases its charges on the amount of nonexistent drugs sting victims were told the fake stash house contained. In no sting operation was the "amount" of drugs lower than 5 kilograms -- the amount needed to trigger a 20-year minimum sentence.Why is the ATF involved? Because every sting operation involves fictional armed guards, necessitating the use of illegally-obtained weapons by sting victims. Bang. More charges with lengthy minimum sentences.When not pushing people into fake robberies, the ATF regulates alcohol, tobacco, and firearms. (Also explosives, but it makes the well-known acronym more than a bit clumsy.) To facilitate maximum price gouging by state governments, the ATF tries to break up untaxed cigarette sales.It's this simple work that has propelled an accountability-free explosion in the ATF, most of it traced back to a single office in Bristol, Virginia, fronted by a quasi-legitimate tobacco distributor. From there, an appalling amount of illegal activity was participated in by ATF agents and officials.Matt Apuzzo has put together an amazing story for the New York Times, sourced from interviews and public records requests -- one that will cause your jaw to drop lower the further you scroll down the page. As Apuzzo puts it, the operation began as a way to bust black-market cigarette sales. It ended up as something much more sinister: an ATF slush fund that mixed public and private money with zero oversight or statutory authority. If any agent needed anything -- from vending machines with cameras in them to credit cards for unquestioned expenses -- they went to Bristol. It was done in the government's name, but plenty of agents personally profited from the operation.

Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he's taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling -- the one saying, clearly, that animals don't get copyrights -- should be thrown out.It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto -- the monkey -- has been left out of the settlement, and thus not "all parties" have agreed. No, really.

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As you may know, Charles Harder is the lawyer behind the lawsuit Shiva Ayyadurai filed against us, so feel free to view everything we say here through that prism. Last week, of course, the judge in our case dismissed the case against us, noting that everything we said was clearly protected by the First Amendment. But that wasn't Harder's only loss of the week. Eriq Gardner points out that he also lost a case he filed against The Deal.That case had been filed a couple months before our lawsuit, in federal court in New Hampshire. It was filed on behalf of Scottsdale Capital Advisors, a company based in Arizona, and one of its execs, the Nevada-based John Hurry, against the Delaware-registered and New York-based "The Deal" and one of its reporters, the California-based William Meagher. Now, you may wonder why this lawsuit was filed in New Hampshire, seeing as none of the states above include "New Hampshire." And, indeed, the court was wondering that too, because it dismissed the case over this bit of weird venue shopping:

When Google Fiber first arrived back in 2010, it was heralded as a gamechanger for the broadband industry. Google Fiber would, we believed, 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; with the mere mention of a looming Google Fiber target market resulting in a much-needed conversation about why the United States consistently languishes in mediocrity when it comes to our broadband networks (pro tip: it's because AT&T, Verizon and Comcast all but own state and federal lawmakers).Seven years later, however, and the Google Fiber bloom appears to be off the rose. There's little doubt that Google Fiber brought some much-needed competition to countless markets, driving down costs and spurring deployment of gigabit networks in key areas (though these benefits are often over-hyped, and broadband competition in countless markets is actually getting worse). There's also no doubt that Google Fiber has been of great benefit to disadvantaged communities, thanks to free deployment of gigabit broadband to anchor institutions and low-income housing developments.That said, the company has gone through two CEOs in a matter of months, laid off an unspecified number of employees during a restructuring last fall, and has begun to show signs that the company's dedication to the project is wavering at best, and notably derailed at worst. Reports began to circulate last fall that high-level Alphabet execs were bored with the slow pace and high cost of fiber deployment, and were considering pivoting the entire Google Fiber business model to wireless. But the company's messaging regarding this transition has been anything but clear, only driving unease among those waiting for the promised revolution.Kansas City, Google Fiber's first launch market, was hyped as nothing short of a looming connectivity Utopia at launch. But the better part of a decade later and many locals say Google Fiber has cancelled their installations after years of waiting. And one Kansas City local made headlines recently when she revealed that the company cancelled her broadband service over a 12 cent dispute, a rather Comcast-esque failure by the company. And a local Motherboard report highlighted further how the honeymoon phase of Google Fiber is most decidedly at an end:

Techdirt has been covering the EU's plans to "modernize" copyright law for years now, and noted how things seem to be getting worse. Two ideas -- the so-called link tax and the upload filter -- are particularly one-sided, offering no benefits for the public, but providing the copyright industry with yet more monopolies and powers to censor. That much we knew. But two new initiatives reveal that the harmful effects are much, much broader than first thought.The first, dubbed "Save Code Share", comes from the Free Software Foundation Europe (FSFE), and the open source organization OpenForum Europe (disclosure: I am an unpaid Fellow of the associated OpenForum Academy, but have no involvement with the new project). The two groups are concerned about the impact of Article 13 of the draft text (pdf) -- the upload filter -- on coding in Europe, as they explain in a white paper:

With the trademarking of hashtags now in full swing, it's about time some light was shone on exactly what type of trademarks are granted on them. The trademarking of hashtags isn't in and of itself perplexing, although it does cause this writer some mild annoyance. Locking up language in general is something that should be treated carefully, but doing so specifically with social media language in an ecosystem designed for proliferation and sharing is ripe for conflict. One need only look at how the Olympics treats hashtags to see this, or how big businesses will greedily "protect" the use of hashtags, no matter any actual concern about public confusion over the use of the marks. The point is, the same general problem with the practical application of trademarks is exacerbated by social media: trademarks too often aren't specific or identifying enough.Recently, an example of this has emerged on Twitter in the form of a quickly-resolved dispute between the University of California and the NFL's Chicago Bears. Cal's mascot is "the Golden Bears", you see. The Chicago Bears somewhat irritatingly staked a claim to the hashtag #GoBears, such that the Chicago Bears logo appeared every time someone used the hashtag. The University of California holds a trademark on the hashtag, however, and the school's Twitter account registered its annoyance with the Chicago team in an admittedly congenial way.

Now that Terre Bonne Parish sheriff Jerry Larpenter has had his immunity stripped by a federal court, it appears he's ready to pay up to keep the damages from mounting. Sheriff Larpenter abused a terrible law -- Louisiana's still-on-the-books-for-some-reason criminal defamation law -- to harass a critic of his. On the way to getting slapped by the court, Larpenter went judge-shopping (bringing his warrant to an off-duty judge) for someone willing to sign his unconstitutional warrant -- a judge who later found the warrant with his signature on it to be perfectly legal.The state court of appeals shot down Larpenter's warrant. The inevitable civil suit that followed found Larpenter being de-immunized in successive decisions, leaving him to actually bear some responsibility for his act of censorship.Elizabeth Nolan Brown reports Larpenter is now making nice with Jennifer and Wayne Anderson, the couple targeted by the sheriff for their criticism. The Andersons had their home raided by Larpenter's deputies, who seized every electronic device they could find, including the Andersons' childrens' laptop.

The government loves taking people's money. It likes it so much it gets pretty weird about it. Even considering all we've covered here on the subject of forfeiture, the legal theory deployed by the government in this case is astounding. From the Ninth Circuit Court of Appeals decision [PDF]:

We've written a bunch over the past few years about the so-called Inter Partes Review (IPR) process at the US Patent Office. In short, this is a process that was implemented in the patent reform bill back in 2010 allowing people and companies to ask a special "review board" -- the Patent Trial and Appeal Board (PTAB) -- at the Patent Office to review a patent to determine if it was valid. This was necessary because so many absolutely terrible patents were being granted, and then being used to shake down tons of companies and hold entire industries hostage. So, rather than fix the patent review process, Congress created an interesting work-around: at least make it easier for the Patent Office to go back and check to see if it got it right the first time.Last year, part of this process was challenged at the Supreme Court and upheld as valid. However, the whole IPR is still very much under attack. There's another big Supreme Court case on the docket right now which argues that IPR is unconstitutional (the short argument is that you can already challenge patents in court, and by taking them to an administrative board, it creates an unconstitutional taking of property without a jury). There are also some attempts at killing the IPR in Congress.While those play out, however, never underestimate the ability of sketchy lawyers to find loopholes and dive through them in ways that are clearly sticking a giant middle finger up at the law. Such is the case with the pharmaceutical company Allergan, who just "sold" some of its patents for the dry-eye drug Restasis to the St. Regis Mohawk Tribe based in upstate New York. There are currently challenges against the Restasis patents both in court and via the IPR at the PTAB -- and the PTAB has indicated that Allergan is likely to lose its patents. But Allergan has basically short circuited the process just days before the PTAB was set to hear arguments over the patent, and will now tell the PTAB it can't review these patents because of (no joke) the sovereign immunity of the Mohawk tribe.The reasoning goes back, first, to a ruling at the beginning of this year where the PTAB dismissed some reviews of patents held by the University of Florida after the University -- a part of the state of Florida -- made a claim of sovereign immunity, saying it's exempted under the 11th Amendment of the Constitution. While there are some arguments against this, the PTAB agreed. The lawyers representing the University of Florida in this case apparently saw this as an opportunity. They're the same lawyers representing Allergan in this "sale."Of course, it's a sale in name only. The only reason for the sale is to be able to avoid the IPR process. In all other ways, Allergan appears to retain control. From the NY Times article on the deal:

Still more evidence continues to be uncovered linking shady reputation management companies to fraudulent defamation lawsuits. This tactic has only recently been exposed, thanks mainly to the efforts of Eugene Volokh and Paul Alan Levy. (Pissed Consumer spotted some questionable lawsuit activity as well, shortly before the Volokh/Levy deluge.)So far, one victim of this fraudulent behavior has obtained a settlement from one of these reputation management firms. It's likely more such judgments are on the way as more details linking firms to bogus lawsuits are dug up. One judge has already passed on info to the US Attorney's office. Now, Eugene Volokh is reporting the Texas attorney general's office has filed a civil complaint against a company called Solvera that, up until recently, performed illegitimate Google takedown services for customers paying upwards of $10,000, using nothing more than bogus libel lawsuits filed by nonexistent companies against fake defendants.The civil complaint [PDF] details the bogus inner workings of the lawsuits filed by shell companies set up by Solvera. (Also, shell defendants.)

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What is it with federal government officials and their weird belief that being questioned by the public -- even with dumb questions -- is a criminal offense? Does it take three stories to make a trend? Perhaps. Let's do these one at a time.

AT&T and hardware manufacturer Arris are being accused of leaving millions of broadband subscribers open to attack. A new report by security researcher Joseph Hutchins highlights how five flaws were discovered in Arris routers used by AT&T and numerous other ISPs around the world. Hutchins notes that some of the flaws may have been introduced after they were delivered to AT&T, since ISPs traditionally modify hardware for use on their network post sale. But many of the flaws were courtesy of the all-too-common tendency to ship hardware with hardcoded credentials and SSH enabled by default:

The DOJ and Attorney General Jeff Sessions have offered up their official plea for a clean reauthorization of Section 702 surveillance powers. These are due to expire at the end of the year, but so far there's been no concerted effort to subject it to greater restrictions -- at least nothing as cohesive as the opposition to Section 215 renewal that began shortly after the Snowden leaks started.Unlike Section 215 phone records collections, the Section 702 collections at least appear to be somewhat useful in harvesting communications relevant to national security efforts. But these collections should be subjected to even greater scrutiny because of what they contain: communications. While the NSA may have ended its supremely vague "about" email collection program (which harvested emails talking about targets/keywords, along with those to and from actual targets), it appears to only have done so because it couldn't make it stop harvesting US persons' communications.But none of that is mentioned in the Attorney General's letter to Congressional leaders. Instead, the request asks not only for a "clean" reauthorization, but a "forever" one as well.

The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren't the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry.Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales.

If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews.The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropros questions, the LVPD did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things?

If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews.The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropos questions, the union representing the police officers, the Las Vegas Police Protective Association Metro, did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things?

While the 20th century was defined by mass production, since the digital revolution there has been talk about what might be the main trend of the 21st century: mass customization. Today, we're starting to see customizable mass-produced offerings pop up in a number of spaces such as apparel, and this week we discuss whether mass customization is finally approaching critical mass.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 seems Virginia can't catch a break when it comes to voting. Trusting vendors to provide secure electronic voting devices just isn't paying off. Two years ago, Virginia pulled a bunch of voting machines after it was discovered they were leaky, insecure devices masquerading as something American voters could trust.The security wasn't just bad in the way many machines are -- frailties that can only be sussed out by security researchers and talented criminals. No, they were bad in the way your grandparents' Google Box is: "secured" with passwords like "abcde" or "admin," along with accessible DOS prompts and multiple open ports.Time moves on but the electronic portion of Virginia's electoral system does not.

For many years now, we've been covering the sometimes odd/sometimes dopey case of the monkey selfie and the various disputes over who holds the copyright (the pretty clear answer: no one owns the copyright, because the law only applies to humans). David Slater, the photographer whose camera the monkey used, has always claimed that he holds the copyright (and has, in the past, tried to blame us at Techdirt for pointing out that the law disagrees). A few years back, PETA, the publicity-hungry animal rights group, hired big time lawyers at Irell & Manella to argue (1) the monkey holds the copyright, not Slater, (2) PETA somehow magically can stand in for the monkey in court -- and sued Slater over it. Slater and I disagree over whether he holds the copyright, but on this we actually do agree: the monkey most certainly does not hold the copyright.The district court ruled correctly that works created by monkeys are in the public domain and that PETA had no case. PETA appealed. Last month, we wrote that the case was likely to settle, because both sides were highly motivated to get it out of court. On Slater's side, he had told some reporters that the legal fight has left him broke (which bizarrely lead to a bunch of people blaming me, which still makes no sense), while PETA desperately wanted to settle because the hearing in the case made it abundantly clear that the appeals court was not buying its argument. Indeed, it appears that the judges hearing the case could barely contain laughter at the bananas argument made by PETA's lawyers.So it comes as little surprise that the parties have released a joint statement saying they've settled the case and asking the court to dismiss the appeal. Part of the agreement is that Slater says he'll donate 25% of any future proceeds from the monkey selfie pictures to organizations that protect the habitat of macaque monkeys in Indonesia, which seems like a good cause.But... there is a pretty clear problem with the proposed settlement. Not only are they asking the court to dismiss the case due to the settlement, the parties have also agreed to ask the court to vacate the district court's ruling saying that animals cannot copyright works they create. Basically, PETA and its high-priced lawyers lost really badly on a fundamental issue of copyright... and now they want to erase that precedent so they or others can try again. PETA is arguing, incredibly, that if the original ruling stands, it will unfairly bind the monkey Naruto:

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So, yes, by now you know all about the whole Equifax hack and how really, really terrible it is. Lots of sites have been posting various stories about what you should do about it, when the truth is you really can't do much. A lot of people are likely going to deal with an awful lot of bad stuff almost entirely because of this leak by Equifax. Not surprisingly, the FTC has weighed in with some suggestions, most of which won't actually help very much. Most of them are the standard suggestions everyone's giving -- including checking your credit reports, putting a credit freeze on your files and basically watching very closely to see if you're fucked over by whoever has access to these files.But the FTC's very last suggestion is the one I wanted to focus on today. It's basically "um, well, maybe try to file your tax returns early next year, so you beat hackers trying to do the same?"

We've noted for years now how broadband and cable providers have created a high art out of bogus, misleading fees. Such fees, ranging in name from Comcast's "broadcast TV fee" to CenturyLink's "internet cost recovery fee" -- allow these companies to falsely advertise one price, then sock consumers with a much higher rate once the bill comes due. This allows these companies to not only jack up prices while claiming the don't, but it has the added bonus of making direct price comparisons with competitors almost impossible.Comcast initially charged $1.50 when its broadcast TV fee first appeared back in 2013, but now charges upwards of $6.50 more per month in many markets -- a 333% increase in just three years. With the occasional exception, regulators and lawmakers tend to turn a blind eye to this practice as little more than pricing creativity. Comcast was however sued for the practice last year, plaintiffs claiming that this practice is not only false advertising, but is primarily designed to let the company raise rates on customers it convinced to sign long-term contracts.For its part, Comcast has spent the last few years insisting that sneaky, misleading fees are just the company's way of being "transparent" with its users:

Routine misconduct by DEA agents? The DEA could not possibly care less. An Inspector General's report released in 2015 in the aftermath of a sex-parties-and-harassment investigation showed 8 of the 14 agents investigated received bonuses and awards while still under investigation, a violation of DEA policy. None of the agents were fired or even demoted. The DEA's unwillingness to address serious misdeeds seriously made it clear DEA agents are nigh un-fireable.Even minor disciplinary actions tend to be rolled back, as the Inspector General's office reports [PDF]. An agent engaging in plenty of unrelated misconduct found himself stripped of his security clearance, but only momentarily. The list of things the agent did wrong is as impressive as it is disturbing. [h/t Brad Heath]

We've been sounding the warning bells on this for some time now, but the craft beer industry has a trademark problem. As the industry continues its explosive growth, bringing with that growth all of the benefits to the economy and to the public along with it, so too has grown the industry's use of trademarks on all of these new brands. What once was a relatively small cottage industry filled with congenial small players has morphed into very big business. Morphing with it has been that congenial attitude in the industry, with craft breweries now far more protective of their brands and far more willing to send out legal threats and engage in court battles over intellectual property than ever before. It's gotten to the point that even intellectual property attorneys are beginning to warn everyone that the lawsuits and threats are going to inevitably increase. This represents a roadblock to an otherwise thriving industry and it's only going to get worse.That's because, in the last ten years alone, trademark registrations for craft brews have doubled in number, while just this past year at least one market has seen a twenty-percent increase in registrations.

The Ninth Circuit Appeals Court has handed down a decision which appears to lower the bar for probable cause. The government's evidence -- obtained via a warrantless search -- will remain unsuppressed. Here's the summary of the decision [PDF]:

In the lead up to Hurricane Irma hitting Florida over the weekend, Tesla did something kind of interesting: it gave a "free" upgrade to a bunch of Tesla drivers in Florida, extending the range of those vehicles, to make it easier for them to evacuate the state. Now, as an initial response, this may seem praiseworthy. The company did something (at no cost to car-owners) to help them evacuate from a serious danger zone. In a complete vacuum, that sounds like a good idea. But there are a variety of problems with it when put back into context.The first thing you need to understand is that while Tesla sells different version of its Model S, with different ranges, the range is actually entirely software-dependent. That is, it uses the same batteries in different cars -- it just limits how much they'll charge via software. Thus, spend more on a "nicer" model and more of the battery is used. So all that happened here was that Tesla "upgraded" these cars with an over the air update. In some ways, this feels kind of neat -- it means that a Tesla owner could "purchase" an upgrade to extend the range of the car. But it should also be somewhat terrifying.In some areas, this has lead to discussions about the possibility of hacking the software on the cheaper version to unlock the greater battery power -- and I, for one, can't wait to see the CFAA lawsuit that eventually comes out of that should it ever happen (at least some people are hacking into the Tesla's battery management system, but just to determine how much capacity is really available).But this brings us back to the same old discussion of whether or not you really own what you've bought. When a company can automagically update the physical product you bought from them, it at least raises some serious questions. Yes, in this case, it's being used for a good purpose: to hopefully make it easier for Tesla owners to get the hell out of Florida. But it works the other way too, as law professor Elizabeth Jo points out:

A year and a half ago, we wrote about how the same team of lawyers who successfully got "Happy Birthday" recognized as being in the public domain (despite decades of Warner Chappell claiming otherwise, and making boatloads of money) had set their sites on a similar fight over the copyright status of the song "We Shall Overcome." There were a lot of details in the original lawsuit that we wrote about -- all suggesting very strongly that the song "We Shall Overcome" was way older than the copyright holder claimed, and it was almost certainly in the public domain.There's been some back and forth in the case, but a new ruling on summary judgment motions effectively says key parts of the song are not under copyright. Specifically at issue is whether or not the first and fifth verse of the song are "sufficiently original" to qualify for copyright. And here, Judge Denise Cote says "nope." The verse in question is probably the part of the song you know:

No job too small. That's asset forfeiture for you. But small jobs are the safest jobs when it comes to the government keeping someone else's property. Keeping the seizures small makes it less likely they'll be challenged by those whose property was taken.The year-end totals may look impressive, but behind those totals are lots and lots of tiny cash grabs. In the cases where agencies' forfeitures have been itemized and examined (which is a rarity -- there's a ton of opacity in forfeiture reporting), the largest number of forfeitures are for the smallest amounts, usually well under $1,000.Officers take what they can because they can. A video going viral on Twitter shows a California police officer rummaging through the wallet of an unlicensed street vendor and taking the vendor's cash and debit card. A citation and a shutdown of the hot dog stand should have been enough. But it wasn't. Officer Sean Aranas decided -- with the only citation handed out during the football game -- to take the man's earnings.

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We've pointed out time and time again that one of the problems with setting up any rules that allow for content to be taken down online is just how widely they will be abused. This is one of the reasons why we think that CDA 230's immunity is much better than the DMCA 512 safe harbors. Under CDA 230, if a platform receives a takedown over content that is, say, defamatory, they get to decide how best to act, without a change in their own legal liability. They can take it down, or they can leave it up, but there's no greater legal risk in either decision. With the DMCA, it's different. If you, as a platform, refuse to take down the content, you then risk much greater legal liability. And, because of this, we regularly see the DMCA abused by anyone who wants to make certain content disappear -- even if it has nothing to do with copyright.Take this latest example of game developer Sean Vanaman, who has promised to issue DMCA takedown notices for YouTube star PewDiePie's (Felix Kjellberg) videos featuring Vanaman's video game, Firewatch:

So you may have noticed this already, but giant telecom conglomerates don't much like having to upgrade their networks, especially in lower ROI areas. And while that's understandable from a purely-financial perspective, this practice is creating some major, notable broadband deployment holes where poor people tend to live. With telcos specifically refusing to upgrade lagging DSL networks at any real scale, that's also creating an emboldened cable broadband monopoly in many areas. That by proxy keeps prices high, speeds low, and allows the introduction of things like bullshit usage caps and overage fees.By and large, localized efforts to do something about this generally run face-first into brick walls, thanks in large part to the almost comical stranglehold most ISPs have over state legislatures and regional telecom regulators. In many instances this culminates in ISPs not only refusing to expand their networks into under-served areas, but quite literally writing protectionist state laws to make sure nobody else can, either. This cake and eat it too mentality persists in countless states that have prioritized campaign contributions from the likes of AT&T and Comcast over the general welfare of their public constituents.Despite the broadband industry consistently whining about "burdensome regulation," the reality is there's little to nothing passing for real oversight in many of these areas, and the regulation that is written -- is often focused primarily on protecting these duopolies' uncompetitive geographical fiefdoms. In Vermont, the Vermont Public Utility Commission (VPUC) recently tried to buck this trend by including provisions in Comcast's 11 year permit (pdf) with the state requiring it to not only retain public access programming in the state, but expand "no less than" 550 miles of additional cable into under-served Vermont communities over 11 years.To be clear, deploying that much cable over more than a decade is a pittance to a company that sees $21 billion in quarterly revenues. But instead, Comcast decided to sue the state, claiming that doing this extra work violates the company's First Amendment rights:

How private are your medical records? You'd think they'd be pretty damn private, considering Congress specifically passed a law regulating the disclosure of these sensitive records. Some states feel the same way, extending even greater privacy protections to things like prescription records. Not only are medical entities prevented from passing on sensitive info without patients' consent, local law enforcement agencies aren't allowed to obtain third-party records like prescription data without a warrant.Seems pretty locked down, but as Leslie Francis and John Francis point out at the Oxford University Press blog, federal law enforcement agencies have undone both Congressional protections and state protections.

This week, we're going to go out of order again, since we've got a good discussion with our first place winner in the middle — sandwiched by two good editor's choices. On our post about friend-of-patent-trolls Judge Rodney Gilstrap crafting an incredibly broad set of conditions for having patent cases heard in East Texas, aerinai offered up our first editor's choice for insightful with some thoughts on the impact this will have:

Five Years AgoThis week in 2012, as the election drew near, we noted that both the Democrats and Republicans were in deep denial about the need for copyright reform — even as the tide seemed to be turning on bad copyright laws in some other countries. Meanwhile, the copyright takedown game was going nuts as usual, with rightsholders issuing takedowns over content that has been gone for months, and automated bots managing to take down the live-stream of the Hugo awards (for showing clips from an award-winning show) and even the official stream of the Democratic National Convention (with claims from a shockingly long list of media companies).Ten Years AgoIronically for sci-fi fans who couldn't watch the Hugos in 2012, this same week in 2007 it was a sci-fi writers group abusing the DMCA to take down content. Meanwhile, Ridley Scott gave as an interlude from Hollywood's usual complaints about technology being used for piracy (like the MPAA's new crusade against camcording in UK cinemas) to complain about small screens killing the art form. This was also the week that Apple made major updates to its iPod line including the introduction of the iPod Touch, and we noted that the excitement around the technology was itself a good argument against music industry business models.Fifteen Years AgoThis week in 2002, record labels were actually backing away from copy protection, although their official music download sites were still languishing in obscurity. The industry was fresh off an insane attempt to stop piracy with a lawsuit against internet backbone providers, and Duke University had just received a curious anonymous $1-million donation to fight abuse of the DMCA. This was also the week that Greece passed a somewhat-infamous anti-gaming law that, due to its vague wording, effectively banned all video games.