France's decision to inhibit free speech in response to local terrorist attacks has resulted in ridiculous applications of laws being written (and rewritten) on the fly. The current French president -- and supposed moderate -- wants to "ban" fake news and the French government has previously expressed a desire to censor websites for national security reasons. The attack on satirical publication Charlie Hebdo supposedly prompted French government officials to stand in solidarity with free speech. This show of unity was followed immediately by multiple arrests for violations of France's speech laws -- including the arrest of comedian for an anti-Semitic Facebook post and another for posting a video mocking dead policemen.I'm not sure if this latest action is approaching the French speech law event horizon, but it says nothing good about the current state of speech protections in France.

Back in 2014, Techdirt first wrote about TISA, the Trade in Services Agreement, another massive international trade deal that was being negotiated behind closed doors with no public scrutiny. Its central aim was to establish a common regulatory framework for services globally. But in doing so, it would circumscribe the ability of governments to bring in their own national laws, since many options would be forbidden by the agreement. For key areas, then, TISA would impose globally-agreed standards for services, with little freedom to diverge, whatever the local populace or democratically-elected politicians might think or want.During 21 rounds of talks, good progress was made on agreeing what should be in TISA, and it seemed that a final text was quite near. But with the election of Donald Trump, everything went quiet, as TISA negotiators waited to find out what his views on the deal would be. Since then, not much has happened, although TISA's supporters are doubtless hoping that negotiations can be picked up again at some point.As part of its participation in TISA, the European Commission is obliged to undertake a trade sustainability impact assessment of the likely effects. In this case, the analysis was carried out by the Dutch consultancy ECORYS and the London-based CEPR, both familiar names in this context. The final report was submitted in July 2017, which has given others a chance to examine what benefits the EU expects TISA to bring with it, and the assumptions that lie behind those predictions. The Chamber of Labour, Vienna, commissioned the Austrian Foundation for Development Research (OFSE in German) to produce a report on the report, and this has now been published. Drawing on the sustainability impact assessment's own predictions, the OFSE underlines that TISA is really pretty pointless from an economic point of view:

Over the past few weeks, we've mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA's anti-circumvention exemptions provisions. While we've thus far limited our posts to the Museum of Art and Digital Entertainment's bid to have those exemptions extended to preserving online video games and the ESA's nonsensical rebuttal, that isn't the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

Last month you might recall that the NRA gave FCC boss Ajit Pai the Charleton Heston Award for Courage for his decision to dismantle popular net neutrality rules. The tone-deaf celebration was a pretty hollow attention seeking move, but was also an ouroboros of blistering idiocy. One, the NRA appears oblivious to the fact that net neutrality rules would have helped it as well, since the entire point is to ensure the internet is a level playing field for all competitors and voices. Net neutrality protects free speech (even speech you don't agree with), something you'd think the folks at the NRA would be able to appreciate.Two, there's simply nothing courageous about teaming up with Comcast to screw over the public and the nation's small businesses and startups. Pai's decision is widely derided as the dumbest decision in the history of modern tech policy. And while ISPs like to frame net neutrality as partisan to sow division and prevent meaningful rules, surveys repeatedly indicate the rules had broad bipartisan support.It didn't take long for ethics experts to point out that the award and the NRA's gift to Pai (a Kentucky long rifle) was over $200 and therefore violated ethics rules and lobbying restrictions:

The Chesterfield County Police Department is willing to violate your rights. If it's not your Fourth Amendment rights, it'll be your First. And this is fine with the department's chief, who's gone on record as a supporter of rights violations.A traffic stop for a minor violation quickly escalated into a life-or-death situation for a black college student cops. Elie Mystal of Above the Law breaks it down as only Elie can.

Here's a bit of a surprise. The Wall Street Journal's Editorial board has come out vehemently against SESTA. The reason this is surprising is that much of the push for SESTA has been a fairly obvious attack on internet companies, especially Google, by trying to undermine CDA 230. And the Wall Street Journal has spent years attacking Google at every opportunity.But, this time, the editorial gets the story right -- highlighting that the effort is clearly being driven by anti-Google animus, even though it will create all sorts of other problems (problems that Google can mostly survive easily). However, the most important part of the editorial details why SESTA is not actually needed. Throughout the process, the backers of the bill always point to Backpage.com as the reason the bill is necessary. As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.But what none of them want to talk about is that we don't need this law to take down Backpage. As the WSJ report notes, Backpage is currently in court in Massachusetts where it seems likely that a judge will say that it's not protected by CDA 230, because of recent evidence showing that it was a more active participant in creating advertisements involving trafficking. Earlier ruling saying that Backpage was protected by CDA 230 did not have the evidence revealed later that Backpage actually was an active participant:

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Once social media companies and websites began acquiescing to EU Commission demands for content takedown, the end result was obvious. Whatever was already in place would continually be ratcheted up. And every time companies failed to do the impossible, the EU Commission would appear on their virtual doorsteps, demanding they be faster and more proactive.Facebook, Twitter, Google, and Microsoft all agreed to remove hate speech and other targeted content within 24 hours, following a long bitching session from EU regulators about how long it took these companies to comply with takedown orders. As Tim Geigner pointed out late last year, the only thing tech companies gained from this acquiescence was a reason to engage in proactive censorship.

A few years ago, anger at John Deere's draconian tractor DRM birthed a grassroots tech movement. The company's lockdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM and the company's EULA prohibited the lion-share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska. This push then quickly spread to multiple other states, driven in part by consumer repair monopolization efforts by other companies including Apple, Sony and Microsoft. Lobbyists for these companies quickly got to work trying to claim that by allowing consumers to repair products they own (or take them to third-party repair shops) they were endangering public safety. Apple went so far as to argue that if Nebraska passed such a law, it would become a dangerous "mecca for hackers" and other ne'er do wells.Wary of public backlash, many of these companies refuse to speak on the record regarding their attacks on consumer rights and repair competition. But they continue to lobby intensely behind the scenes all the same. The latest example comes courtesy of the "The Security Innovation Center," a new lobbying and policy vehicle backed by hardware vendors and wireless carriers. The group issued a new "study" this week that tries to use the understandable concerns over flimsy IOT security to fuel their attacks on right to repair laws.The study starts out innocuously enough, noting how they hired Zogby to run a poll of 1015 users on consumer privacy and security concerns in the internet of broken things era:

A half-decade's worth of litigation by "FOIA terrorist" Jason Leopold is finally bearing fruit. The petition, filed in 2013 to peel back a few layers of opacity from the Feds' favorite court (DC District Court), has been partially granted by Chief Judge Beryl Howell. (h/t Mike Scarcella)Nearly two years ago, substantial progress was made when Judge Howell ordered the US Attorney's Office (USAO) to examine sealed dockets (of which there are many -- the DC circuit is home to hundreds of dockets rendered invisible by government requests for secrecy) and to start unsealing anything that wasn't related to ongoing investigations.The government fought back, but as the lengthy opinion [PDF] shows, there was much more cooperation between the USAO and Leopold than one would expect, given the government's antipathy towards him goes so far the Pentagon once offered Leopold a stack of documents in exchange for him promising to never file another FOIA request.Several pages are given over to the facts of the case. They're definitely worth reading. It details the push-and-pull of the two parties, the logistical hurdles standing in the way of compliance, and the unexpected compromises made by both parties. Leopold was requesting access to Pen Register/Trap and Trace (PR/TT) requests and Stored Communications Act (SCA) warrants, many of which are apparently obtained by DOJ components with little input from from the USAO. Leopold agreed to limit his request to USAO documents, only to find out the USAO had no reliable system in place to track its own involvement in federal prosecutions.

This week, our first place winner on the insightful side is Qwertygiy responding piece-by-piece to a commenter who was rabidly defending the CBP's constitution-free zones:

Five Years AgoThis week in 2013, we saw plenty of copyright fails, like NASCAR trying to get rid of videos of a crash at Daytona, and a company trying to hide a recording of its exec cursing an analyst, and sheet metal and air conditioning contractors trying to prevent the publication of federal standards, and even one of the companies in charge of administering the new six-strikes program misidentifying content. Speaking of the six strikes program, it was starting to look weird and ugly — although anyone looking at other countries saw that coming.Ten Years AgoThis week in 2008, while one court was dismissing racketeering charges against the RIAA, another was rejecting the RIAA's own claims about "making available" being infringement, and some musicians were wondering if they should take the RIAA to court to find out where all that settlement money was going. Meanwhile, a Canadian politician pushing for a Canadian DMCA was caught violating copyright himself, and Pakistan joined the list of countries to attempt to censor YouTube with disastrous results leading it to quickly reverse course.Fifteen Years AgoThis week in 2003, while Roxio was trying to resurrect Napster by hiring Shawn Fanning, it was becoming more common to see predictions of the death of the CD. People were starting to notice the feds seizing domain names, while congress decided it was time to target P2P sharing on college campuses. Netflix signed up its millionth customer, and lots of people were starting to see the profit potential of eBay — from businesses realizing it could be their sole distribution channel to a California airport using it to sell confiscated goods.

Late last year, we covered a very odd lawsuit brought against the BBC by the production team for The Cosby Show centering around a BBC documentary covering Bill Cosby's fall from grace in America. Bill Cosby: Fall of an American Icon used several short clips from The Cosby Show, altogether totaling less than four minutes of run-time, and all of them used to provide context to Cosby's once-held status as an American public figure in good standing. Despite the BBC distributing the documentary exclusively overseas, production company Casey-Werner filed its suit in California. Whatever the geography around the legal action, we argued at the time that the BBC's actions were as clear a case of fair use as we'd ever seen.It seems that legal argument will not be answered in this suit, however, as the court has decided instead to simply dismiss over a lack of jurisdiction. While the BBC's filings had indeed hinted at a forthcoming fair use defense, it also argued that the California court had no business adjudicating this matter to begin with.

Unsubstantiated driverless car hype may be annoying, but that shouldn't blind us to the real cost of unnecessarily delaying autonomous vehicle (AV) deployment.Last week, after exploring new data from the California AV disengagement reports, Ross Marchand of the Taxpayers Protection Alliance argued that we should "put driverless cars back in the slow lane." California requires AV companies testing in the state to report each time a human operator takes over for a driverless car — an event otherwise known as a "disengagement." Marchand offers some interesting analysis, but ultimately reads far too much into a limited dataset and pushes for a restrictive policy prescription that would undermine public safety. The discussion is worth fleshing out because it reveals important limits to the "precautionary principle" mindset that is so common in AV discussions.In 2017, Waymo — the self-driving car project formerly belonging to Google — reported driving over 350,000 miles on California roads with 63 total disengagements. Marchand claimed that, based on these data, Waymo's test vehicles are still not as safe as human drivers and that they are improving at a slower rate than those hyping AVs would have us believe. Further, he argued that until driverless cars can prove they are safer than human operators, we should keep them off public roads — and instead test them on expensive private tracks.There are a few glaring issues with this argument. First, it overestimates how applicable and reliable the California disengagement data really are. As many commentators have pointed out, disengagement data are a poor measure of AV progress. Not only are disengagement reports an apples-to-oranges comparison across vehicle manufacturers who use different definitions, strategies and road conditions for testing, but Marchand drills down by comparing particular disengagement subcategories, leaving him with sample sizes of less than 20 — several orders-of-magnitude too small to make meaningful comparisons. Furthermore, comparing disengagements to would-be fatalities is problematic given that a safety driver's presence enables testing in regions that the vehicle is still learning to handle.Marchand also left aside the successful testing and deployment of Waymo's fully driverless cars in Arizona. Since November 2017, hundreds of AVs have been providing free taxi services in the suburbs of Phoenix without any safety driver in the front seat. To date, there have been no reported accidents or fatalities. This suggests what we've known all along: these companies already face a host of legal, political, economic, regulatory and publicity pressures that incentivize them to prioritize safety in AV deployment. They know that every bump, scrape and crash will make headlines (regardless of who is at fault) and will slow or — if it's serious enough — completely derail their path to market. Waymo obviously feels confident enough to take its hands off the wheel, and so far has been right. Why rip AVs off the roads when no one has been harmed?Marchand's larger argument against AV testing on public roads provided a textbook example of the precautionary principle in practice. Simply put, the precautionary principle requires innovators to prove that their new technology will not harm society, rather than placing the onus on regulators and litigators to demonstrate that an innovation actually causes harm.And to that point, Marchand fails to specify what exactly the harm of public testing has been. Public testing has not unleashed mass fatalities on society, or even mass fender-benders. Rather, it appears to be speeding up the feedback loop of better data and more-rigorous test environments, leading to faster improvements in autonomous technology.As a society, we can't afford to wait until we are 100-percent certain that driverless cars are statistically safer than humans before letting them on the roads. As a report from RAND highlighted, it could take several decades to accumulate enough miles on private test courses to know beyond a shadow of a doubt that AVs are safer than their human counterparts. Relying on Marchand's precautionary principle approach would mean waiting decades while nearly 40,000 people die on our roads every year. Regulatory delay of this magnitude could, conservatively-speaking, cost tens of thousands of lives.That's not to say private test courses don't have a role to play in AV development. Indeed, Waymo already operates an extensive test track in Arizona where operators take real-world scenarios and experiment with hundreds of possible variations. This hybrid approach combines the advantages of real-world testing and private test courses. But forcing all AV testing onto private test tracks cuts off the real-world data necessary for this complementary approach and substantially raises the barrier to entry for new competitors.To be clear, we should avoid over-hyping the progress made in AV development. Carefully taking into account the safety data will be a key part of this effort. But halting all real-world AV deployment is a heavy-handed "solution" desperately in search of a problem.Caleb Watney (@calebwatney) is a technology policy associate at the R Street Institute. Marc Scribner (@marcscribner) is a senior fellow at the Competitive Enterprise Institute.

The federal judge presiding over the prosecution of a government contractor who took home 50 terabytes of sensitive national security documents home with him has sent a message. And the message is this: collect it all.Harold Martin did what surveillance agencies do best. He built himself a haystack of government documents, some of them designated "top secret." The prosecution is counting on this haystack to put Harold Martin in prison on espionage charges. But the judge has just ordered prosecutors to prove the few "top secret" needles justify a conviction for the entire haystack. Josh Gerstein at Politico has the details.

As predictable as the sun rising in the east, whenever a tragedy occurs, such as the recent school shooting in Florida, entirely too many people trot out their favorite whipping posts and put on a public show. One of those whipping posts is violent media, with video games for some reason taking on a particularly large portion of the backlash. We've already seen grandstanding politicians jump into this fray, all the way up to America's current Dear Leader, but it isn't only at the highest levels that this occurs. In the suburbs of Chicago, a 16 year old recently made a dumb comment in the wake of local threats of a school shooting that was essentially him being exasperated about all the commentary on his preferred social media channels.

The Australian government has decided it can beat math at its own game. The laws of math will be defeated by the laws of Australia, the government declared last year. In an effort to tackle something this article calls "terror encryption," the Home Office says laws punching holes in encryption for government access are just around the corner.Prime Minister Malcolm Turnbull may not understand the laws of mathematics or how signing a bunch of words into law doesn't actually suspend them, but he does know tech companies are going to figure it out for him. Home Affairs Minister Peter Dutton agrees: the government just needs to mandate broken encryption and the tech companies will handle the rest. It's for the good of the country, if not the world.

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For years, we've quoted a copyright lawyer/law professor who once noted that the standards for fair use are an almost total crapshoot: nearly any case can have almost any result, depending on the judge (and sometimes jury) in the case. Even though there are "four factors" that must be evaluated, judges will often bend over backwards to twist those four factors to get to their desired result. Some might argue that this is a good thing in giving judges discretion in coming up with the "right" solution. But, it also means that there's little real "guidance" on fair use for people who wish to make use of it. And that's a huge problem, as it discourages and suppresses many innovations that might otherwise be quite useful.Case in point: earlier this week the 2nd Circuit rejected a lower court decision in the Fox News v. TVEyes case. If you don't recall, TVEyes provides a useful media monitoring service that records basically all TV and radio, and makes the collections searchable and accessible. It's a useful tool for other media companies (which want to use clips), for large PR firms tracking mentions, and for a variety of other uses as well. The initial ruling was a big win for fair use (even when done for profit) and against Fox News' assertion of the obsolete doctrine of "Hot News" misappropriation. That was good. However, that initial ruling only covered some aspects of TVEyes' operations -- mainly the searching and indexing. A second ruling was more of a mixed bag, saying that archiving the content was fair use, but allowing downloading the content and "date and time search" (as opposed to content search) was not fair use.Some of this was appealed up to the 2nd circuit -- specifically that second ruling saying parts of the service were not fair use. Thankfully, Fox didn't even bother appealing the "hot news" ruling or the "fair use on index search" ruling. As you'd expect, the court runs through a four factors test, and as noted above, the analysis is... weird. Once again, it seems clear that the court decided Fox should win and then bent its four factors analysis to make that happen. The court separates out TVEyes operations into two things: "Search" and "Watch." Whereas the lower court separated out "Watch" into various components, here the court decides that the entire "Watch" part is not fair use, and thus there's no need to examine the components (the "Search" part remains covered by fair use -- which, again, Fox did not challenge).First, the court explores "the purpose and character" of the use, and whether or not its transformative, which would lean towards fair use. Much of the discussion focuses on the Google Books case, in which the same court found that Google scanning books and making them searchable was transformative and thus, fair use. Here, the court notes the similarities that make TVEyes transformative, which is a good start:

In the wake of the FCC's net neutrality repeal, nearly half the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.Of course incumbent ISPs saw this coming, which is why both Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to "preempt" state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.So far, states aren't taking the FCC's threats very seriously.Washington State for example became the first state in the union this week to pass net neutrality legislation (though Oregon is neck and neck). Washington's new law largely mirrors the discarded FCC rules by prohibiting the anti-competitive throttling and blocking of competitors, as well as "paid prioritization" deals that prevent ISPs from letting deep-pocketed content companies buy an unfair advantage over smaller companies and startups. Also like the FCC's rules, it carves out notable exemptions for "reasonable network management" -- as well as for the prioritization of legitimate services that may need it (medical, VoIP services).Amusingly, the bill's sponsor doesn't appear particularly flummoxed by FCC restrictions on what states can and can't do:

Late last year, the FISA Court did something it had never done before. It performed an en banc review of an earlier decision to determine whether or not the ACLU had standing to petition the court to release decisions pertaining to ongoing surveillance programs. The judges found the ACLU could continue its legal battle -- one it has waged on and off for more than a decade. It pointed out the ACLU had raised enough of a First Amendment allegation to be heard, although it wasn't particularly optimistic about its ability to overturn decades of FISA court secrecy.The FISA court has posted the opening briefs from both parties. The government's brief [PDF] basically argues that the court has worked in near-total darkness for years and it should go on doing so for years to come. The phrase "national security" is used frequently. It points to two earlier petitions by the ACLU -- filed with different FISA judges -- as having set up a dilemma the government shouldn't even need to address. Judge Saylor's opinion in 2013 opened the door for the ACLU's standing, finding the ACLU was entitled to access at least one opinion dealing with bulk collection authority.Judge Collyer's decision, released only months later, made no such finding. Instead, Collyer noted the court's secrecy was essential to the nature of the surveillance it approved and the ACLU had no standing to allege a violation of a First Amendment right to access FISA court documents. The government argues Collyer's decision was correct, not the one recently reached by the full panel of FISA judges.

The new administration's plan to undo everything Obama ever did (along with lots of stuff other presidents put in place) continues. Fighting leakers and multiple investigations, the Trump administration is steamrolling regulation by slashing through red tape and common sense with equal aplomb. This administration may have a reputation for inadvertent openness, but its new directives aren't so much draining the swamp as building a swamp in its own image.The Bureau of Land Management is apparently viewed as the Fed version of Greenpeace. Previously-protected federal lands are being opened up for business, starting with the removal of environmental impact reviews. This should speed up the return of the government's land to certain people -- mining companies, the CBP's inland expeditions, wall builders, etc. This affects nearly 950 million acres of federal land. A raft of exclusions would make it easier for the Bureau of Land Management to manage land however it sees fit.

About a half-decade ago, Customs and Border Patrol turned roads in and out of a small Arizona town into East Germany. Now, the Ninth Circuit Appeals Court has ruled residents of Arivaca, Arizona can move forward with the civil rights lawsuit against several federal government agencies, including the DHS and CBP.The backstory to the lawsuit is stunning, in a "surely this can't be happening in America" sort of way. The New York Times covered the misery of Arivaca residents back in 2014. It shows what can happen when the federal government is allowed to turn large swathes of American soil into a proto-DMZ with armed guards and "papers, please" checkpoints.

Last week, the Communist Party of China issued a short statement:

While America is in desperate need for strong federal anti-SLAPP legislation, it's useful to point out when versions of these laws at the state level do their good work. One such law is the Texas Citizens Participation Act, or TCPA. Stories featuring the TCPA protecting the speech of those leaving ratings and comments online have been featured in our pages before, such as when a Houston law firm sued a former client for comments she made on Yelp and Facebook, or when a pet-sitting company sued one of its clients over a Yelp review that mentioned that the customer's fish was overfed.The latest lawsuit to be defeated by the TCPA is that of Jennifer Lane, an opera singer of some renown (more on that later) and a professor at the University of North Texas. It seems that Lane had few fans among her students, judging by the defamation suit she filed against Christine Phares and several Does over negative reviews they gave on singer forums and ratemyteacher.com. From the latest ruling, for background:

If you've paid attention to the net neutrality debate, you'll recall that large ISPs routinely threaten to hold back on network investment if governments pass rules protecting an open, healthy internet. They also routinely try to claim that the passage of such protections cause a massive slowdown in overall sector investment, something that simply isn't supported by actual facts (remember them?). Such rhetoric is fear mongering designed to scare regulators away from imposing "job killing regulations," even if those regulations make sense for a telecom market where limited competition fails to keep bad actors in check.This hollow fear mongering has played a starring role as carriers worldwide begin to deploy faster fifth-generation wireless (5G) networks. You'll recall that both American and European telcos have routinely tried to claim that the deployment of these faster, more efficient wireless networks will be derailed by net neutrality.Usually, this rhetoric is accompanied by claims that 5G will be the centerpiece of the smart cities of tomorrow, and that net neutrality rules will prevent ISPs from using these networks to provide prioritized connectivity for health and other related services. Ignored is the fact that this has never been a problem, since any well-crafted net neutrality rules carve out massive loopholes for all manner of essential services, especially on the medical front. Of course that doesn't stop ISPs from routinely claiming that net neutrality hurts sick people all the same.With the Mobile World Congress trade show underway this week in Barcelona, all of this debunked rhetoric is being regurgitated like a bad hairball. Speaking at the trade show, Ericsson CEO Börje Ekholm tried to inform attendees that Europe's net neutrality rules must be weakened lest they derail Europe's efforts to build 5G Networks:

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Way back in the summer of 2013, Justin Carter, a teen living in Texas, made a joke on Facebook while chatting with other League of Legends players. Responding to facetious comments he was insane, Carter sarcastically agreed, using a very regrettable choice of words.

So when the FCC's 2015 net neutrality rules were passed, we warned how the agency's failure to include zero rating (exempting an ISP's own content or the content of a deep-pocketed partner) was going to let ISPs creatively engage in anti-competitive behavior. And sure enough, companies like Verizon and AT&T began exempting their own content from usage caps, giving them a leg up in the market. Carriers like Sprint similarly began to fracture the internet experience, at one point charging users more money if they wanted to enjoy music, video and games without having their connection throttled.T-Mobile pushed these creative barriers further with its Binge On offering, which exempted only the biggest and most popular video services from the company's usage caps. This automatically put thousands of smaller video providers, non-profits, educational institutions and startups at a notable market disadvantage, but by and large nobody outside of the EFF and academia gave much of a damn because a) ill-informed consumers are happy laboring under the illusion that they're getting something for free and b) the public (and by proxy media) was lazy and tired of debating net neutrality.Just as the Wheeler FCC realized the error of their ways and began showing signs of cracking down on carriers that use usage caps and zero rating as an anti-competitive weapon, Trump won the election and Ajit Pai's FCC began dismantling the rules entirely. You know, for "freedom." As the U.S. moved further away from a truly open internet, regulators in other countries (like India) moved to prohibit ISPs from using usage caps or zero rating as an anti-competitive bludgeon against smaller operators, startups and non-profits.With the rules now on the chopping block, and ISPs successfully gutting FCC and state oversight of ISPs, zero rating is going to be the least of our problems. We're back to now worrying about things like "paid prioritization," or the ability of ISPs to give their own video content (or the content of the deepest-pocketed companies) priority treatment on the network. And ISPs that were previously against such deals are now walking back their promises at an unsurprising pace.Throughout all of this, carriers like Sprint repeatedly professed their breathless dedication to net neutrality while they continued to implement policies that made consumer connectivity less transparent, more expensive, and less open. And speaking at the Mobile World Congress this week, Sprint CEO Marcelo Claure made it clear that the company doesn't think this whole paid prioritization thing is that big of a problem, either:

Violent video games may not cause violent people, despite what some people think, but we can certainly point out that they make a certain class of people very, very stupid. That class is the political class. Every time some violent happening occurs in America, the reaction by grandstanding politicians with no imagination is to lash out at video games for causing all the world's violence, to propose such games be banned entirely, or to propose a tax on them. On the question of taxing or banning these games, these politicians fortunately run face-first into the First Amendment and the Supreme Court's 2011 decision that video games are art, they are speech, and the government can't infringe upon that speech.Sadly, it doesn't keep some from trying. In the wake of the tragedy in Florida, one Rhode Island state representative announced new proposed legislation that would tax games with an "M" rating or higher.

This month's Stupid Patent shows what happens when the patent system strays outside its proper boundaries. US Patent No. 8,706,513 describes a "fungible basket of investment grade gems" for use in "financial instruments." In other words, it's a rating and trading system that attempts to turn diamonds into a tradeable commodity like oil, gold, or corn.Of course, creating new types of investment vehicles isn't really an invention. And patents on newfangled financial techniques like this were generally barred following Bilski v. Kappos, a 2008 Supreme Court case that prevents the patenting of purely financial instruments. Since then, the law has become even less favorable to abstract business method patents like this one. In our view, the '513 patent would not survive a challenge under Bilski or the Supreme Court's 2014 decision in Alice v. CLS Bank.Despite its clear problems, the '513 patent is being asserted in court—and one of the people best placed to testify against the patent may not be allowed to.The public's right to challenge a patent in court is a critical part of the US patent system, that has always balanced the exclusive power of a patent. It's especially important since patents are often granted by overworked examiners who get an average of 18 hours to review applications.But there are two types of persons that, increasingly, aren't allowed to challenge problematic patents: inventors of patents, and even partial owners of patents. Under a doctrine known as "assignor estoppel," the Federal Circuit has barred inventors from challenging patents that they acquired for a former employer. Assignor estoppel was originally meant to cover a narrow set of circumstances—inventors who engaged in fraud or bad dealing, for instance—but the nation's top patent court now routinely applies it to prevent inventors from challenging patents.Patent scholar Mark Lemley flagged this problem in a 2016 paper, noting assignor estoppel could be used to control the free movement of employees or quash a legitimate competitor. "Inventors as a class are put under burdens that we apply to no other employee," he wrote. "If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer."In this case, the Federal Circuit's expansive view of assignor estoppel may prevent a person who owned just a fraction of a patent from fighting back when that patent gets used in an attempt to quash a competing business.Despite the fact that this gemological trading system should never have been granted a patent, so far, it's being successfully used by its owner to beat up on a competitor—and the competitor could be barred from even challenging the patent by assignor estoppel.Competing Diamond CompaniesGemShares was created in 2008 to market "diamond investment products." The original partners were joined in business by a man named Arthur Lipton, who bought 20% of GemShares in 2013. He struck a deal not to compete with GemShares.GemShares says [PDF] Lipton broke that deal in 2014, when he started working on his own project, a "secure diamond smart card," and filed for patents related to it. But in addition to breach of contract, GemShares sued for patent infringement. They said Lipton's new business violated the '513 patent.The litigation also involves breach of contract claims, and allegations of fraud from Lipton's former partner. Without getting into the weeds on all that, the defendant in this case may not even be allowed to argue that the "gem financial product" patent is invalid. Earlier this month, the judge overseeing the case issued an order [PDF] noting that "the Federal Circuit has upheld the doctrine of assignor estoppel, which precludes an inventor-assignor of a patent sued for infringement from arguing the patent's invalidity."The Federal Circuit has made assignor estoppel so powerful, in fact, that Lipton's 20% ownership contract with GemShares may be enough to stop him and his lawyers from mounting an invalidity defense.It's bad policy to stop the public from challenging bad patents, and assignor estoppel should only be used in narrow cases, like outright fraud. As it's been applied by the Federal Circuit, it's destined to be used in exactly the way that Lemley warned it would—as an anticompetitive cudgel.We agree with the brief signed by Lemley and more than two dozen other law professors [PDF] in EVE-USA, Inc. v. Mentor Graphics Corp., arguing that the Supreme Court should take up this issue and keep assignor estoppel within the narrow limits it originally intended.Reposted from EFF's Stupid Patent of the Month series.

You may recall that in 2014, bit-actor Frank Sivero of Goodfellas semi-fame sued Fox over a recurring character that appeared on The Simpsons. Sivero says several writers for the show were living next door to him just before Goodfellas began filming, at a time he says he was creating the character of Frankie Carbone. He then claims that the writers for The Simpsons were aware of this work and pilfered it to create the character Louie, who is one of Fat Tony's henchmen. Because of this, he claimed that the show had appropriated his likeness, the character he was creating, and decided he was owed $250 million from Fox for all of this. For its part, folks from The Simpsons claimed that Louie is an amalgam of stereotypical mobster characters and a clear parody of those characters.In response, Fox asked a Los Angeles Superior Court to strike the complaint on anti-SLAPP grounds. In 2015, the court agreed, the ruling resulting from such memorable exchanges as:

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country's government to obtain them. After all, the US government certainly doesn't want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.Or maybe it does. Or maybe the DOJ just doesn't care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986's SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn't a search. From the transcript [PDF]:

In late 2016, we wrote about the positively silly case that lawyer Harry Jordan filed on behalf of his client, Dawn Bennett, in which she sued Google because a guy she had once hired to do some search engine optimization work for her, and with whom there was a falling out, later wrote a mean blog about her and her company. As we noted, Bennett did not sue that person -- Scott Pierson. Instead, she and Harry Jordan went the Steve Dallas lawsuit way of filing against some tangential third party company, because that company is big and has lots of money. In this case, it meant suing Google, because Pierson's blog was hosted by Google.As we noted, this would be an easy CDA 230 win, because Google is not at all liable for what bloggers using its blog hosting do (we also noted that the lawsuit botched the legal meaning of "defamation" -- which is generally not a good thing to do in a defamation lawsuit). And thus it was of little surprise to see the lawsuit dismissed last summer. It was an easy ruling to make given the status of CDA 230 (which, yes, is now under threat). But, Bennett appealed. And... the results of the appeal are exactly the same as the results in the district court. Case dismissed, quick and easy (in just 10 pages), because CDA 230 makes it obvious that Google is not liable.Still, as law professor Eric Goldman notes in his post about this ruling, the DC Circuit makes some useful statements about CDA 230 and how it works.

While Verizon, Comcast and AT&T may have convinced the FCC to repeal net neutrality, they've still got a steep, uphill climb before they can be comfortable that the repeal is on solid footing, meaning we still have some time before they begin taking full anti-competitive advantage. The FCC's repeal still needs to survive a wall of legal challenges from consumer groups, Mozilla, and nearly half the states in the union. From there, ISPs need to ensure that a future FCC or Congress doesn't just pass new, tougher rules all over again.That's why Verizon, Comcast and AT&T are all now pushing for a new "net neutrality law" in name only. While the same ISPs that gutted these popular consumer protections insist they're just interested in "putting this contentious issue to bed," the reality is they want a law that pre-empts any future federal or state attempts to protect consumers. As usual, they've managed to get industry marionettes like Martha Blackburn behind the legislative push. Since they've long since demolished any credibility on this subject, there's been little traction in these legislative efforts so far.But with the power they wield over Congress, they remain dedicated to the cause all the same, and they know full well that many of these kinds of legislative efforts are won by brutal repetition. Enter AT&T, who this week penned yet another blog post insisting that they really love net neutrality just like you!:

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The UK government has rolled out an auto-flag tool for terrorist video content, presumably masterminded by people who know it when they (or their machine) see it and can apply the "necessary hashtags." The London firm behind it is giving its own product a thumbs-up, vouching for its nigh invincibility.

It can't be overstated that the broadband industry isn't just trying to kill net neutrality, it's trying to gut most meaningful federal and state oversight of entrenched telecom monopolies. While Ajit Pai dismantled consumer protections at the FCC, his "Restoring Internet Freedom" order also ironically attempts to ban states from holding ISPs accountable for privacy, net neutrality, or other anti-competitive behavior. With neither adult regulatory supervision or healthy organic competition in place to keep bad actors in line, the end result will likely be even worse behavior than the kind of Comcast shitshows we've grow used to.But there's one part of this effort that just faced a notable setback.Under Ajit Pai's (read: the broadband industry's) proposal, the FCC would take a step back from overseeing ISPs, ceding any remaining authority to the FTC. What Pai and his ISP friends didn't mention is that the FTC's authority over ISPs is severely limited, or that AT&T has spent the last four years in court trying to demolish what authority the FTC does have. That this would leave consumers almost entirely unprotected from monopoly behavior must have simply slipped Ajit Pai's mind during his endless sales pitches for his unpopular repeal.AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very absurd and Schrodinger-esque tap dance.At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America:

Could this be the answer to FBI Director Chris Wray's call for broken device encryption?

A couple of weeks ago, Techdirt wrote about Marriott International kowtowing to China because of a drop-down menu that dared to suggest that Tibet might be a country. We noted that a newly-confident and increasingly aggressive China might well start finding more of these alleged "insults" to use as pretexts for asserting itself internationally. And sure enough, that's already happened again, this time with Mercedes-Benz. As a New York Times story explains, the German car maker posted an image of a white car parked on a beach, along with a quotation popularly ascribed to the Dalai Lama -- "Look at the situations from all angles, and you will become more open. #MondayMotivation" -- to its official Instagram account.Becoming "more open" by looking at things from this particular angle didn't go down at all well in China, where the authorities regard Tibetan veneration of the Dalai Lama as a threat to political stability in the region. According to the New York Times, the post provoked an "outcry" from Chinese internet users, many of whom pledged to boycott the Mercedes brand. It's hard to gauge to what extent Chinese citizens did this spontaneously, or whether some of those protesting online were part of the authorities' well-oiled Internet surveillance and propaganda machine. In any case, what mattered was that the Chinese government was not happy at all, and Mercedes-Benz realized that if it wanted to carry on selling its cars in China, it had better start apologizing quickly and deeply. This it did by posting to its official Weibo account, translated here by the Shanghaiist:

As we've been discussing, this afternoon, the House voted both on Rep. Mimi Walters' bad amendment to attach SESTA to FOSTA, and then on the combined bill -- and both sailed through Congress. Somewhat incredibly, this happened even though the Justice Department weighed in with a last minute letter saying that the language in the combined SESTA/FOSTA is so poorly drafted that it would actually make it more difficult to prosecute sex traffickers, and also calling into question whether or not the bill was even Constitutional.You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:

When a tech company is huge and dominant, it can feel like competing with them is impossible. Worse still, it can sometimes feel like innovating is impossible, since they might just step in and take over as soon as someone executes on a good idea. Once upon a time this was how startups felt about Microsoft, while today it's more likely to be Google or Facebook. But no company, no matter how mighty, is immune to being disrupted — and figuring out how is the subject of this week's episode.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.

Lately I've been enjoying watching re-runs of Rowan & Martin's Laugh-In. It's somewhat reassuring to watch a previous generation get through a period of political angst as we go through this current one, especially as there are quite a few parallels that can be drawn.I mention this because as people call for Amazon, Apple, Roku, and YouTube to drop NRA-TV, I realize that we've seen calls for censorship like this before. What's happening today:

Back in November, we wrote about a pure SLAPP lawsuit filed by Stanford professor Mark Jacobson against another scientist, Christopher Clack, and the National Academy of Sciences. Jacobson claimed that Clack and others defamed him by publishing a rebuttal of a paper that he and some others had published earlier. In other words, this was a standard kind of academic dispute, with different scientists taking different positions. Rather than continue to debate it in academic settings, Jacobson sued the critics. We went through all of the details of the case, and why it was so ridiculous in the original article, so we won't rehash that here. However, we will note that Jacobson has now dropped the case, but in doing so published an FAQ where he still insists that it was the proper thing to do in the first place:

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Cool. Let's just throw more legislation at the problem.

The NRA last week thought it would be a good idea to give FCC boss Ajit Pai an award for killing net neutrality. More specifically, the NRA gave Pai the Charleton Heston Award for Courage at the CPAC conference for killing the popular consumer protections. The entire affair was a tone deafness supernova from beginning to end, with American Conservative Union (ACU) Executive Director Dan Schneider making it abundantly clear that he and other attendees have absolutely no coherent idea what net neutrality even is. Schneider went so far as to declare the unpopular agency boss the "most courageous, heroic person that I know":

In a time when law enforcement officials are calling Apple "evil" and demanding access to encrypted communications, it doesn't make much sense for the company to be doing this.

Two new bills have been introduced in the Kansas state legislature with the intent of forcing law enforcement agencies to turn over body camera footage in a timely manner. They appear to have been prompted by the family of a man shot and killed by police officers late last year. It took police 11 weeks to turn over footage of the incident. Even then, it wasn't as though the footage was given to the executor of Dominique White's estate. Instead, White's father was "granted access" to the the body cam footage, which means he was able to watch the video on police equipment at a police station by himself with no other surviving family members.This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE's argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.