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Because even some lawyers can't seem to understand the legalities of Section 230 of the CDA or third-party liability, the courts are frequently burdened with stupid defamation lawsuits that can't survive a motion to dismiss. DC lawyer Harry J. Jordan lobbed one of these lawsuits into court late last year on behalf of Dawn Bennett, who felt she was defamed by a blog run by Scott Pierson, an SEO specialist who apparently failed to make Bennett's less-than-flattering history with the SEC disappear.While there may have been a legitimate complaint against Pierson for some of the statements he made, Jordan and Bennett formed a legal suicide pact and decided to sue Google, which did nothing but provide hosting for the blog. The deadly duo pursued this theory in an attempt to hold Google responsible for something a user said:

For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud:

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As we recently covered, Minnesota law enforcement tried to snatch victory from the expiring body of a black driver shot by a St. Anthony police officer by immediately asking an uninvolved social media company to turn over information on Philando Castile's girlfriend. The reason for this? The "affiant" swore criminals often used social media services to discuss criminal activities. This was an attempt to mine for dirt that might be used to justify an unjustifiable shoot.One warrant was served to Facebook, along with an indefinite gag order. Facebook challenged the gag order. Ill-prepared for pushback and having no solid reason to demand the release of Facebook posts and private messages, the warrant was rescinded.Unfortunately, another company was far more compliant.

So we've discussed how there's growing controversy about the gaming of the FCC's public docket on net neutrality to give the illusion of support for what's an extremely unpopular plan to kill the rules. A bot has been stuffing the ballot box with bogus comments using dead or otherwise fraudulent people, and I've seen my name hijacked and used to support the killing of the rules as well. So far, there's every indication that the FCC has no intention to crack down on any of this, since this fraudulent behavior supports its awful plan to kill net neutrality protections.One analysts suggested that up to 40% of the roughly five-million comments submitted so far are coming from the aforementioned bot. After initially telling me they were "looking into" things, the FCC has ignored repeated requests for comment on why it's failing to police even the most rudimentary abuse of its own systems, like the example in my name above.And now, with the ballot box stuffed, it's easier than ever for industry-connected groups to pretend the FCC's plan has broad support among the public. For example, a "free market" group calling itself Consumer Action for a Strong Economy (CASE) this week conducted a "study" of the comments. It's findings? People apparently overwhelmingly don't want a healthy and open internet free from the meddling of historically anti-competitive telecom duopolies:

It's been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans' communications are being swept up "incidentally" in the NSA's Section 702 surveillance net. Six years later, he still doesn't have an answer.Section 702 is up for reauthorization at the end of the year and there's still no information coming from the ODNI [Office of the Director of National Intelligence]. A group of Congressional reps is hoping to pry this info loose before the reauth, but the DNI's been able to hold Wyden off for six years, so…

This week, we were concerned to see the Canadian Supreme Court make a hugely problematic ruling that Google must block sites worldwide. Bergman won most insightful comment of the week by summing up one example of why this is a bad way to approach the internet:

Five Years AgoThis week in 2012, we saw some obstinate reactions to the ACTA protests, with an EU Parliamentarian saying dissent was "a soft form of terrorism", and the EU Commissioner saying he would simply ignore rejection of ACTA by the EU Parliament — while Australia's parliamentary committee on the subject was recommending rejection. As for the TPP in the US, we were annoyed but unsurprised to learn that the MPAA had full online access to the text of the agreement even as Congress continued to struggle to get even the slightest glimpse. Rep. Darrell Issa made the reasonable request that he be allowed to observe the next round of TPP negotiations, but he was (again unsurprisingly) rejected.Ten Years AgoThis week in 2007, some people were beginning to ask whether the RIAA's piracy investigation tactics were even legal. Of course, Attorney General Albert Gonzales was far more interested in throwing people in jail for attempted piracy. Rolling Stone rolled its eyes and wrote an obituary for the recording industry, while the MPAA was off doing its own thing — suing sites for just linking to infringing content. Meanwhile, statistics about reality kept being disobedient to the world of anti-violent-videogame crusaders, with their protests driving up the hype around Manhunt 2, and violent crime rates continuing to fall while violent video games got more popular.Fifteen Years AgoThis week in 2002, the new era of the web was slowly being born as the world noticed that broadband internet access unlocked entirely new usage patterns and behaviors for internet users — even though broadband was still really struggling to catch on in the US. Meanwhile, a congressman introduced a bill to legitimize all sorts of nasty anti-piracy vigilante tactics including the increasingly popular music industry scheme of trying to swamp file trading networks with fake files. Newspaper executives were looking to the future of the mobile web, while newspaper columnists were stuck in the past and moaning about those newfangled "blogs". And the RIAA succeeded in scaring workplaces into cracking down on employees sharing MP3s.

Yeah, yeah, before you rush to the comments and start justifying this by saying that Europe doesn't respect free expression in the same way the US does, let's just say while that may be true, this is still bad: Germany has moved forward with a plan to fine internet companies which don't quickly censor the internet. Censor what, though? Three loosely defined (and easily abused) categories: hate speech, criminal material and fake news.

When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here.Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House.The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal.

Two years ago, Techdirt wrote about an industry study of Spain's "Google tax", which requires a Web site to pay for sending traffic to publishers when it quotes snippets of their texts. Just as everyone who actually understands the Internet predicted, Spain's new law had a disastrous effect on the publishing industry there, especially on smaller companies. Despite that unequivocal evidence, the law is still in place, and it's a further sign of how pointless it is that only now has the Spanish Center for Reprographic Rights (Cedro) finally managed to sign up its first deal with a news aggregator, called Upday (original in Spanish). Cedro is claiming that this "pioneering" move possesses a "strategic importance" because it recognizes the rights of those whose publications appear elsewhere as snippets.The fact that it has taken so long to find anyone willing to accept that point is bad enough, but it gets worse. Upday operates across Europe, and was launched in Spain at the beginning of March this year. It turns out to be a partnership between Axel Springer and Samsung. As Techdirt readers may recall, the giant publishing group Axel Springer is one of the biggest supporters of the Google tax in Germany. Initially, it tried to take a hard line against the US search company. But Axel Springer was soon forced to back down humiliatingly and offer Google a free license to post snippets from its publications. A two-week experiment without search engine leads caused Web traffic to Axel Springer's sites to plunge.So, far from being a "pioneering" move that validates the whole snippet tax approach in Spain, Upday's deal with Cedro is simply a key German supporter of this daft idea trying to give the impression that the moribund Spanish Google tax is still twitching somewhat. It's pretty clear why Axel Springer and Cedro would be keen to do that now, after years of nothing happening in Spain. The European Union is currently revising the main EU Copyright Directive. Article 11 of the proposed text is an EU-wide version of the snippet tax, despite the fact that the idea has failed miserably everywhere that it has been tried. The agreement between Upday and Cedro will presumably be used as "evidence" that the Google tax is "working" in Spain. The fact that it is a "circular" deal between German and Spanish supporters of the idea proves the exact contrary.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Leaked NSA exploits have now been the basis for two massive cyberattacks. The first -- Wannacry -- caught hospitals and other critical infrastructure across several nations in the crossfire, using a tool built on the NSA's ETERNALBLUE exploit backbone. The second seems to be targeting Ukraine, causing the same sort of havoc but with a couple of particularly nasty twists.This one, called Petya, demanded ransom from victims. Things went from bad to worse when email provider Posteo shut down the attacker's account. Doing so prevented affected users from receiving decryption keys, even if they paid the ransom.It soon became apparent it didn't matter what Posteo did, no matter how clueless or ill-advised. There was no retrieving files even if ransoms were paid. Two separate sets of security researchers examined the so-called ransomware and discovered Petya is actually a wiper. Once infected, victims' files are as good as gone. No amount of bitcoin is going to reverse the inevitable. The ransomware notices were only there to draw attention to the infection and away from the malware's true purpose.Both cases are considered to be attacks by nation states. Inconsistently-applied patches -- most of them released with zero information by Microsoft -- have led to an insane amount of damage.Through it all, the NSA -- whose tools were leaked -- has remained consistently silent. There's been no indication if the agency is working to mitigate the ongoing threat or whether it's far more concerned with discovering who left behind the malware toolkit first exposed by the ShadowBrokers.It's unlikely we'll hear much being said publicly by the agency, but Rep. Ted Lieu has sent a letter to NSA chief Mike Rogers demanding answers. The letter [PDF] points out both attacks have been based on NSA exploits (ETERNALBLUE and ETERNALROMANCE). Lieu also states he fears the attacks seen in the past few weeks are only the "tip of the iceberg." The agency's refusal to discuss the attacks apparently isn't going to fly anymore.Lieu makes two requests: the first is for the agency to see if it has some sort of magic "OFF" switch just laying around.

It appears that many people don't remember this, but the RIAA used to be a major force in protecting free speech and the First Amendment. It had many good reasons to do so, after all, since free speech is very important to all of the artists that the RIAA's labels work with. Artistic expression -- especially in the musical realm -- has frequently come under attack by politicians and, for decades, the RIAA was actually a really important player in standing up for the First Amendment. See, for example, this 1992 article in the LA Times from then RIAA President Jason Berman, in which he lists out all the ways that the RIAA has been fighting censorship. Yes, these are all specific in protecting musicians, but they were some really important First Amendment arguments to be made in these areas:

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ProPublica recently obtained some internal documents related to Facebook's hate speech moderation. Hate speech -- as applied to Facebook -- isn't a statutory term. Much of what Facebook removes is still protected speech. But Facebook is a private company and is able to remove whatever it wants without acting as a censorial arm of the government.That being said, there's a large number of government officials around the planet who feel Facebook should be doing more to remove hate speech -- all of it based on very subjective views as to what that term should encompass.It's impossible to make everyone happy. So, Facebook has decided to apply a set of rules to its moderation that appear to lead to completely wrong conclusions about what posts should be removed. A single image included in the ProPublica article went viral. But the explanation behind it did not. The rules Facebook uses for moderation lead directly to increased protections for a historically well-protected group.[If you can't read/see the image, the slide says "Which of the below subsets do we protect?" with the choices being "female drivers," "black children," and "white men." The answer -- to the great internet consternation of many -- is: "white men."]Given Facebook's general inability to moderate other forms of "offensiveness" (mainly female breasts) without screwing it all up, the answer to this quiz question seems like more Facebook moderation ineptitude. But there's more to it than this one question. The rest of the quiz is published at ProPublica and it shows the "white men" answer is, at least, internally consistent with Facebook's self-imposed rules.Facebook must define "hate speech" before it can attempt to moderate it, since there are no statutes (at least in the United States) that strictly apply to this content. Here's how Facebook defines it:

A few years ago, large ISPs began taking advantage of a lack of competition in the broadband market by imposing arbitrary, unnecessary and confusing usage caps and overage fees. Initially, these companies tried to claim that this was necessary to manage congestion on their networks. As data emerged indicating that this claim was bullshit, large ISPs were ultimately forced to acknowledge as much and back away from the claim.Shortly after that, ISPs instead began claiming that these glorified price hikes were necessary as a simple matter of "fairness," and the industry narrative-du-jour became that it only made sense that heavier users should pay more money for broadband.This excuse was bullshit too; Americans already pay some of the highest prices for broadband of any developed nation under the flat-rate pricing model, which any large ISP earnings report will show you is perfectly profitable. And if "excessive consumption" really was a problem, it was a problem caused solely by a small number of users that could easily be shoved toward business-class tiers. It didn't require saddling everyone with confusing and expensive surcharges.These days, after being hammered for years for bogus justifications, large ISPs no longer even provide a reason for these rate hikes. Take Cox Communications for example. The company has quietly announced it would be expanding usage caps into several new markets, charging users $10 per each additional 50 GB of data users consumed over a one terabyte limit. The e-mail being sent to users, which is getting widespread attention on Reddit, doesn't even really bother to offer a justification for the price hike:

The DHS and TSA are just going to keep making things worse. Despite there being almost no evidence of terrorists targeting planes, the DHS is looking to expand its laptop ban to cover even more incoming flights from foreign airports.

Having been told "no" twice by the Second Circuit Court of Appeals, the DOJ is asking the Supreme Court to overturn the decision finding Microsoft did not need to hand over communications stored in foreign data centers in response to a US warrant.The Appeals Court told the DOJ that statutory language simply didn't agree with the premise pushed by the government: that US-issued warrants should allow the law enforcement to dig through "file cabinets" not actually located at the premises (United States) searched. The court noted jurisdictional limitations have always been part of the warrant process (although recent Rule 41 changes somewhat undercut this). That the information sought is digital rather than physical doesn't change this. The court suggested the DOJ take it up with Congress if it doesn't like the status quo. The DOJ has proposed legislation but likely feels a Supreme Court decision in its favor would be a swifter resolution.The DOJ's 207-page petition [PDF] actually only contains about 30 pages of arguments. The bulk of the petition is made up of previous court decisions and oral argument transcripts covering the DOJ's losses at the lower level. The Table of Contents gets right to the point, utilizing the section header "The panel's decision is wrong" to set the tone for its rehashed arguments.The DOJ quotes the dissenting judges from the Appeals Court's decision, one of which makes the ever-popular "appeal to 9/11" argument:

The saga of Zillow's totally bullshit legal threat has lasted all of three days. Following a terrible (and still wrong) attempt at damage control, Zillow has sent a note to all the reporters who have covered the story to say that it won't be taking legal action:

Paul Levy has tracked down yet another abuse of the court system to illegitimately erase factual news articles from the internet. The person behind the bogusly-obtained court order is Megan Welter, who achieved national fame and national infamy within the space of a few days back in 2013.

Earlier this week, we wrote a little bit about the 20th anniversary of a key case in internet history, Reno v. ACLU, and its important place in internet history. Without that ruling, the internet today would be extraordinarily different -- perhaps even unrecognizable. Mike Godwin, while perhaps best known for making sure his own obituary will mention Hitler, also played an important role in that case, and wrote up the following about his experience with the case, and what it means for the internet.The internet we have today could have been very different, more like the over-the-air broadcast networks that still labor under broad federal regulatory authority while facing declining relevance.But 20 years ago this week, the United States made a different choice when the U.S. Supreme Court handed down its 9-0 opinion in Reno v. American Civil Liberties Union, the case that established how fundamental free-speech principles like the First Amendment apply to the internet.I think of Reno as "my case" because I'd been working toward First Amendment protections for the internet since my first days as a lawyer—the first staff lawyer for the Electronic Frontier Foundation (EFF), which was founded in 1990 by software entrepreneur Mitch Kapor and Grateful Dead lyricist John Perry Barlow. There are other lawyers and activists who feel the same possessiveness about the Reno case, most with justification. What we all have in common is the sense that, with the Supreme Court's endorsement of our approach to the internet as a free-expression medium, we succeeded in getting the legal framework more or less right.We had argued that the internet—a new, disruptive and, to some large extent, unpredictable medium—deserved not only the free-speech guarantees of the traditional press, but also the same freedom of speech that each of us has as an individual. The Reno decision established that our government has no presumptive right to regulate internet speech. The federal government and state governments can limit free speech on the internet only in narrow types of cases, consistent with our constitutional framework. As Chris Hanson, the brilliant ACLU lawyer and advocate who led our team, recently put it: "We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television."The decision also focused on the positive benefits this new medium had already brought to Americans and to the world. As one of the strategists for the case, I'd worked to frame this part of the argument with some care. I'd been a member of the Whole Earth 'Lectronic Link (the WELL) for more than five years and of many hobbyist computer forums (we called them bulletin-board systems or "BBSes") for a dozen years. In these early online systems—the precursors of today's social media like Facebook and Twitter—I believed I saw something new, a new form of community that encompassed both shared values and diversity of opinion. A few years before Reno v. ACLU—when I was a relatively young, newly minted lawyer—I'd felt compelled to try to figure out how these new communities work and how they might interact with traditional legal understandings in American law, including the "community standards" relevant to obscenity law and broadcasting law.When EFF, ACLU and other organizations, companies, and individuals came together to file a constitutional challenge to the Communications Decency Act that President Bill Clinton signed as part of the Telecommunications Act of 1996, not everyone on our team saw this issue the way I did, at the outset. Hanson freely admits that "[w]hen we decided to bring the case, none of [ACLU's lead lawyers] had been online, and the ACLU did not have a website." Hanson had been skeptical of the value of including testimony about what we now call "social media" but more frequently back then referred to as "virtual communities." As he puts it:

With the telecom sector seeing the Trump administration as somewhat of a blank check, the industry is busy considering all manner of mergers and acquisitions that would have been blocked under any number of previous administrations for being competition-killers. Verizon has made an offer to buy Charter (Spectrum), Sprint has been trying to merge with T-Mobile, AT&T's pushing for approval of its acquisition of Time Warner, Altice USA is gobbling up smaller providers hand over foot, and the industry is consolidating at a faster rate than ever.While obviously not all M&As are bad by default, ignored in this rush is that several recent high-profile telecom deals have been utter shitshows for the American consumer.While the Obama administration did block both AT&T and Sprint's attempted acquisitions of T-Mobile (which wound up being a very good thing for competition and consumers), its approval of Frontier's acquisition of Verizon's unwanted DSL customers in Florida, California and Texas resulted in endless outages and problems courtesy of a bungled integration. The Obama administration also approved Charter's $79 billion acquisition of Time Warner Cable and Bright House, resulting in not only much higher prices for consumers, but (somehow) even worse customer service for already one of the least-liked companies in America.Undaunted by any potential history lessons, now Trump-era merger mania rolls on with the news that Charter and Comcast are considering either a joint acquisition of Sprint, or a minority ownership stake in exchange for a more lucrative network sharing deal for both companies' wireless services:

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It's not secret that we still desperately need comprehensive patent reform to fix the many, many problems of our patent system. Even as the Supreme Court has spent the past twelve years repeatedly fixing broken parts of patent law one piece at a time (by repeatedly smacking down awful decisions by the Court of Appeals for the Federal Circuit) there's still much more that can, and should, be done. To date, most of these efforts are being blocked by powerful pharmaceutical interests, with some help from short-sighted trial lawyers who fear things like fee shifting (i.e., "loser pays") coming to patent law. With broad bipartisan support for real patent reform, it's really just been a few well-connected organizations that have blocked the whole thing from going through.But, apparently, those groups have a friend in Senator Chris Coons, who last week introduced a patent reform bill so bad that it would basically wipe out pretty much all of the major gains towards fixing the patent system from the past twelve years. It's that bad. And shame on Senators Tom Cotton, Dick Durbin and Mazie Hirono for co-sponsoring the bill. It's unfathomably bad and would destroy innovation in many parts of the country. You know the bill is going to be bad when it conflates monopoly patent rights with traditional property rights, despite the two being entirely different things:

Opponents of net neutrality often claim the rules placed "onerous burdens" on small and large ISPs alike. But when push comes to shove, you'll rarely see any of these folks provide hard evidence of such "burdens." Usually, opposition is driven by a fundamental misunderstanding of what the rules do, and by a conflation of the rules with nebulous partisan worries that net neutrality somehow represents "government run amok." That confusion is, quite often, courtesy of "insight" on the subject from the likes of Ted Cruz, who has repeatedly tried to insist that killing the popular consumer protections somehow "restores freedom" (citation needed).But in yet another example of net neutrality's broad support out here in the real world, the EFF this week accumulated a list of 40 or so ISPs, VPN and VoIP providers that would very much like it if the rules remained intact. Noting how the last FCC's decision to reclassify ISPs as common carriers under the Communications Act actually helps them compete with their larger counterparts, the companies note that net neutrality hasn't hurt their ability to develop and expand their networks in the slightest:

FOIA terrorist Jason Leopold has scored another win, securing a copy of an Intelligence Community Inspector General's investigation from the Office of the Director of National Intelligence. It's the sort of thing that's rarely released, most likely because it comes from the inner sanctum's inner sanctum. Maybe this one just seemed too damning to keep secret -- not for the ODNI or the Intelligence Community, but for the unnamed (well... redacted) ODNI employee who was caught abusing all sorts of policies, procedures, and laws while on the clock.The investigation report [PDF] opens with a list of five violations affecting all areas of the employee's work. And also possibly some violations of other employees.

One of the surveillance state's biggest cheerleaders is seeing his years of support pay off.

So we've been talking the past month about a push by the marketing industry (a company by the name of "All About The Message," specifically) to exempt "ringless voicemail" from existing robocalling and privacy rules. Ringless voicemail lets a company leave a marketing or political message in your inbox without your phone ringing. But such technology is currently prohibited by the Telephone Consumer Protection Act (TCPA) , which prohibits such marketing efforts without the "prior express consent of the called party."In its petition to the FCC (pdf), All About the Message tried to claim that the existing consumer protections on this front were "archaic," ringless voicemails shouldn't be included because they're not technically "calls," and that exempting ringless voicemail from these rules provided an "important public purpose:"

Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote:

For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation.

By now, of course, you've probably heard that the EU Commission has fined Google €2.4 billion for antitrust violations, specifically regarding shopping search (there are at least two other investigations going on around antitrust questions involving Android and Adsense). The specific issue leading to this fine is that Google, for years, has been pushing its own comparison shopping results in response to searches on products, and other comparison search vendors feel this is unfair, as users are more likely to just jump to Google's shopping options in the boxes up top -- usually called the "onebox" (for what it's worth, I almost never click on those boxes, in fact, I almost never use Google for product search, preferring other, better, dedicated sites -- but that's a single anecdotal point, while the EU is citing some data it claims supports its position). Anyway, rather than digging all that deep, let's go with three thoughts I had in reading through the EU's announcement (linked above), Google's response and some of the other coverage.

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One of the big stories of the week so far was Zillow's mind-numbingly bizarre decision to have a recent-hire lawyer send out a completely bullshit threat letter to the website McMansion Hell. Things have not gone well for Zillow in the wake of this. Multiple news articles have been mocking Zillow's decision, and my own Twitter feed has been filled with people saying unkind things directed at the company. And then there's whatever this is:

For decades now, AT&T has promised that an incredible boon in broadband investment is waiting just around the corner -- but only if AT&T gets what it wants from the government. Whether it's gunning for tax cuts and subsidies, or looking for approval of its latest megamerger, AT&T's an absolute master of the regulatory carrot and a stick game. Even if the carrot is entirely hallucinated, as we saw when AT&T threatened to curtail already minimal fiber optic deployment unless net neutrality was killed.Of course because AT&T doesn't face meaningful competition in most markets, and few members of either party of government are truly interested in doing much of anything about this problem, this investment explosion never really materializes one way or the other. That's why millions upon millions of AT&T customers still pay an arm and a leg for last-generation DSL speeds, AT&T's consistently under fire for failing to upgrade many cities, and most of the company's network can't offer speeds remotely close to the gigabit-speeds now being offered by cable.Yet somehow, each and every time AT&T comes stumbling toward government with its hand outstretched, we oddly and mysteriously ignore this history lesson and provide AT&T with absolutely every benefit of the doubt. Case in point: with AT&T looking for Trump administration approval of its $85 billion Time Warner deal, the company last week trotted out its latest promise: a massive wave of broadband investment if the company sees some major tax cuts and has its latest merger approved; a narrative the press was happy to reiterate without qualification:

Earlier this year, we brought to you the story of one man's quest to sue all of the news organizations for using a clip of his Facebook video in which his partner is giving birth to his child. Kali Kanongataa sued ABC, NBC, Yahoo, CBS, Microsoft, Rodale and COED Media Group for reporting on the video and showing a clip of it, claiming copyright infringement. It was an odd claim for many reasons, not the least of which being that Kanongataa made the stream public and available on his Facebook page, not to mention the obvious Fair Use case to be made by the news groups reporting on the matter. The suits didn't work, of course, with most or all of them having now been dismissed.But that wasn't the end of the story for Kanongataa and his crack legal team that saw fit to entertain this frivolity. The judge in the case, Lewis Kaplan, decided to verbally light his lawyers on fire when assessing Kanongataa to pay legal fees to the defendants.

Nobody trusts anybody, and it's probably going to end up affecting end users the most. The Snowden leaks showed the NSA's Tailored Access Operations routinely intercepted network hardware to insert backdoors. The exploits leaked by the Shadow Brokers indicated the NSA was very active on the software exploit front as well.In response to the Snowden leaks, it appears the Russian hardware/software purchasers are stepping up their due diligence efforts. This comes at a time when the Russian government is suspected of hacking away at the American democratic process, as Reuters reports.

The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. Two years ago, the district court ruled in favor of Straughn Gorman, who was subjected to two lengthy traffic stops in less than an hour by officers hoping to help themselves to cash he was carrying in his RV.After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. His reasonable suspicion? Gorman's use of the word "chick" to describe the girlfriend he was driving to visit and the supposedly "rehearsed" aspects of his employment history. Trooper Monroe performed an extensive background check on Gorman while hoping to prolong the stop until a K-9 unit could be deployed, but even his non-routine call to an El Paso DEA records center failed to drag out the traffic stop long enough for it to arrive.All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions." He also told the other officer (Deputy Doug Fisher) to bring a drug-sniffing dog with him. Fisher wasn't assigned to patrol the highway Gorman was traveling on, but decided that would be the best use of his time.Fisher pulled over Gorman after his tire touched the fog line a couple of times. Another records check was run, even though Fisher already knew what results to expect, thanks to Trooper Monroe's heads-up. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.The government appealed the lower court's decision, which gave Gorman back his $167,000 plus legal fees. It raised a number of defenses for its actions (which included the state's attorney omitting several facts about the two searches from its affidavits), but the Appeals Court is no more receptive of this deception and deceit than the lower court. From the decision [PDF]:

As we reported last month, CDN provider Cloudflare has decided to hit back against patent troll Blackbird Technologies with an aggressive strategy. Leading this charge is Doug Kramer, Cloudflare's General Counsel, who joins us this week to discuss the current situation with Blackbird and the broader patent landscape.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.

The ACLU is celebrating twenty years of making the internet better. On June 26th, 1997, the ACLU prevailed in Reno v. ACLU, with the Supreme Court striking down the anti-indecency portions of the 1996 Communications Decency Act (CDA).As can be gathered by the law's name, it was written from a position of morality and panic -- the fear that the internet's connectivity would drown the nation's youth in easily-accessible porn. And yet, the law survives today as one of the most important factors in the internet's speedy growth, thanks to Section 230, which prevents service providers and social media platforms from being held civilly responsible for users' posts and actions.But it might not have been that way. In 1996, the ACLU didn't even have a website of its own and most legislators had nothing more than bill sponsors' parades of horribles to go on. So, for the children, the CDA criminalized "obscene or indecent" material if it could be viewed by minors.It was another case of legislators "knowing" what was indecent when they saw it. But even under that wholly subjective standard, the government spent most of its time shrugging.

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

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Stories about both the abuse of the DMCA process and the peril YouTubers regularly find themselves subject to by way of intellectual property laws are both legion, but to see the truely egregious nature of the abuse of this sort of thing, it takes a story about them intersecting. We appear to have such a story on our hands in the form of a music composer hired to work on a video game that then began sending DMCA notices to YouTubers over a contractual dispute with the game publisher. This story weaves a strange path, so let's dig in.Alex Mauer is a digital composer. She was hired to do contract work by Imagos Softworks, the developers of Starr Mazer: DSP. That game had been available for early access on Steam, but is still down at the time of this writing. The reason for that is that Mauer sent Steam a DMCA notice for the game, claiming that it used her music without proper payment. Mauer and Imagos are in the middle of a fairly heated contract dispute, one which Imagos has been taking public with explanations of what happened and why the claim is not true.

Last year, the cable industry quietly launched one of the most misleading and successful lobbying efforts in the industry's history. The target? A plan concocted by the former FCC that would have let customers watch cable programming without having to rent a cable box or use a CableCARD. Given the industry makes $21 billion annually in rental fees off of this entrenched hardware monopoly, the industry got right to work with an absolute wave of disinformation, claiming that the FCC's plan would confuse customers, increase piracy, and was (with a little help from Jesse Jackson) somehow even racist (seriously).At one point, the industry even managed to grab the help of the US Copyright Office, which falsely claimed that more cable box competition would somehow violate copyright. Of course the plan had nothing to do with copyright, and everything to do with control, exemplifying once again that for the US Copyright Office, public welfare is often a distant afterthought.As part of this stage show, the cable industry also created a group specifically tasked with attacking the proposal. Dubbed the Future of TV Coalition, the group set forth to not only attack the FCC's plan, but to propose its own counter proposal it claimed made any cable box reform efforts at the FCC unnecessary. Dubbed the "ditch the box" proposal, the cable industry and the Future of TV Coalition breathlessly stated the industry (pdf) was already cooking up ways to help consumers avoid rental fees have greater choice, and that these efforts were already well underway:

The Ninth Circuit Court of Appeals has upheld Matthew Keys' conviction and sentence of two years for a 40-minute web defacement he didn't actually perform himself. That works out to basically 18 days for every minute of mild disruption the LA Times suffered, as it (very briefly) suffered through a headline changed to read "Pressure builds in House to elect CHIPPY 1337."Prosecutors actually wanted five years for this momentary mild hacking, but still managed to end up with two years after the LA Times submitted enough paperwork to make it appear as though this 40-minute malicious hiccup racked up $1 million in CFAA damages.The appeals court isn't there to question the accuracy of the LA Times' bill of lading, but it does use the inflated figure to affirm the part of the sentencing affected by the claimed damages. From the unpublished opinion [PDF]:

Of all the wonderful gifts the internet has bestowed upon humanity, there is perhaps none more precious to me than the now famous Crying Jordan meme. After Michael Jordan's tearful Hall of Fame induction speech, an image of him in tears took on the secondary purpose of being photoshopped onto anyone the internet wanted to portray as being sad or upset about pretty much anything. The creativity of some of the memes is nearly unmatched, leading to it becoming so popular that then President Obama brought it up when giving Jordan the Presidential Medal of Freedom. In other words, as far as internet memes go, the crying Jordan meme is nearly as prolific and celebrated as the basketball career of Jordan itself.Which is why it's somewhat odd that the loser of a local township committee election went completely bonkers when he himself got "crying Jordan'd."

There are few things I hate more than when tech platforms -- which have benefited from key rights provided to internet platforms and the public -- turn around and abuse the law to try to silence or kill off others. And the latest company to dive headfirst into this unfortunate pool of shame is Zillow, which is threatening to sue the person behind McMansionHell.com based on a number of different awful interpretations of the law that can be summed up as: "hey, you can't use our images to make fun of homes."This threat against McMansion Hell is particularly dumb. On multiple levels. The threat letter offers up a bunch of theories for why McMansion Hell is illegal, none of which make any sense at all when you dig in. Zillow just looks like a particularly assholish, censorial thug.McMansion Hell, if you didn't already know about it, is basically exactly what it says on the tin. It's a website that looks critically at some trends in home design. I've visited the site a few times in the past, but not in a while -- and because of the threat, the site is currently down. This is what you see as I write this:But, before that, it looked something like this (via Google Cache):I realize there's a lot there, but the site would take a bunch of images, of houses, sometimes adding annotations and captions and the go into great detail critiquing a trend, or style, or architectural or real estate idea. It was informative and funny. And, at least for the time being, it doesn't exist.Zillow's legal theories here are... mostly of the crazypants variety. First, the letter says that McMansion Hell is violating Zillow's terms of service, because the terms of service forbid reproducing or modifying images on Zillow.

Last week, the Copyright Office finally released a report that it had been working on for some time, looking specifically at Section 1201 of the DMCA. In case you're new around here, or have somehow missed all the times we've spoken about DMCA 1201 before, that's the "anti-circumvention" part of the DMCA. It's the part that says it's against copyright law to circumvent (or provide tools to circumvent) any kind of "technological protection measures," by which it means DRM. In short: getting around DRM or selling a tool that gets around DRM -- even if it's not for the purpose of infringing on any copyrights -- is seen as automatically infringing copyright law. This is dumb for a whole host of reasons, many of which we've explored in the past. Not only is the law dumb, it's so dumb that Congress knew that it would create a massive mess for tons of legitimate uses. So it built in an even dumber procedure to try to deal with the fact it passed a dumb law (have you noticed I have opinions on Section 1201?).Specifically, every three years, people and companies can petition the Copyright Office/Librarian of Congress to "exempt" certain technologies or uses from 1201, saying that it is legal to circumvent the technological protection measures in that case, for the succeeding three years (yes, after three years, the original exemption expires, unless it is renewed). This triennial review process has historically been an (annoying) joke, where people basically have to beg the Copyright Office to let them, say, get around DVD DRM, in order to make documentaries. Or, famously, that time in 2012 when the Librarian of Congress refused to renew the phone unlocking exemption, magically making it illegal to unlock your phone for no clear reason at all. The whole thing is fairly described as a hot mess.And, it really harms our own security the most.That's because security researchers often need these exemptions the most, because they don't want to be accused of violating copyright law for doing their jobs in figuring out where there are weaknesses and vulnerabilities in various technologies. So, many of the applied for exemptions tend to come from the security community -- and sometimes they're granted, and other times they are not. A year ago, some security researchers (along with the EFF) sued the US government, arguing that 1201 violates the First Amendment, scaring off security researchers, and providing none of the usual defenses against infringement, such as fair use (which the Supreme Court has argued is a necessary First Amendment valve on copyright). That case is still waiting for a judge to rule on early motions (and it's waiting a long time).Given all that as background, it's somewhat fascinating (and marginally surprising) to see that the Copyright Office officially agrees that the 1201 setup totally sucks for security researchers, and it would actually like Congress to fix that. The report specifically recommends expanding the existing "permanent exemption" for certain types of "security testing" to make it more applicable to a wider set of security practices:

Last year, you might recall that AT&T came up with an ingenious idea: to charge broadband customers significantly more if they actually wanted to protect their own privacy. It basically worked like this: users ordering AT&T's broadband service could get the service for, say, $70 a month. But if that user wanted to opt out of AT&T's Internet Preferences snoopvertising program (which used deep packet inspection to study your movement around the Internet down to the second) users were forced to pay upwards of $800 more each year. With its decision, AT&T effectively made user privacy a premium service.AT&T backed off this idea after massive backlash, in part because the former, Wheeler-run FCC had started raising a stink about the practice, but also because it wanted regulatory approval for its $85 billion acquisition of Time Warner.But after successfully lobbying the GOP to kill FCC broadband consumer privacy protections (which would have let the FCC crack down on these kinds of practices on a case-by-case basis), AT&T is apparently considering bringing the program back.Speaking last week on C-SPAN's The Communicators program, AT&T Senior Vice President Bob Quinn acknowledged that AT&T's first attempt to charge more for privacy didn't go over all that well:

Winning the never-coveted "Stupid Patent of the Month" award is no honor. In fact, it sometimes enrages recipients to the point of sueball-throwing. But there is definitely a large amount of schadenfreude to be enjoyed by onlookers -- perhaps no more so than in the case of 2015 "SPotM" winner, conspiratorially-monikered Rothschild Connected Devices Innovations, LLC (whose limited liability fails to save it).Rothschild "invented" a method of hooking up a mixing device to the internet to allow consumers to produce custom blends of their own. Prior art should have invalidated it, but didn't. Instead, the stupid patent allowed Rothschild to go after anyone who allowed users to customize anything over the internet. In one case, Rothschild applied its super-vague patent to a remotely accessible thermostat, arguing this was patent infringement because it allowed users to remotely customize temperatures. To cap off its troll pedigree, Rothschild filed all of its infringement lawsuits in the Eastern Texas District.Now it's being told by the Federal Circuit Court of Appeals it must shell out some money for its disingenuous claims and litigation. (h/t The Technologist) As the opinion details, Rothschild tried to dismiss the lawsuit once it became apparent it wasn't going to win. The defendant served Rothschild with notice the patent would likely be found invalid after examination, as its first patent claim was ineligible for protection under federal law. ADS (the defendant) offered to settle for $43,000 in legal fees. Rothschild refused.ADS then filed a motion to dismiss, using the same information it had given to Rothschild. It also included prior art that further bolstered its claims about the patent's lack of validity. Rothschild quickly moved to dismiss the case, hoping to avoid both a settlement or being stuck with paying the defendant's legal fees. This attempt failed.ADS moved to block the dismissal, detailing Rothchild's long history of patent trolling. From the decision [PDF]:

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