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Back at the end of March, the Department of Homeland [in]Security issued rules stating that all electronics larger than a smartphone should be checked instead of kept in a carry-on on flights into the US from 10 airports or on 9 airlines from mainly Muslim countries in the middle east and north Africa. This was following claims by US and UK intelligence that terrorists are smuggling explosive devices in various consumer items to 'target commercial aviation'.Not only does this not pass the smell test -- anyone looking to bring down an aircraft with explosive devices won't care if they're in the cabin or the hold: boom is boom. The idea that items are going to go through some sort of super-secret screening is laughable, when red-team penetration tests find it trivial to get prohibited items onto aircraft (including via people with no ticket who bypass security screenings). And, of course, airports already require carry-on electronics to be x-rayed, and often swabbed for explosive residue. What's more, I remember seeing 'explosives smuggled on board' hysteria since Pan Am 103 almost 30 years ago, where Czech explosive Semtex was suspected to be in everything from fake muesli to electronics following the use of just 12 ounces (340g) to blast a 50cm hole in the 747's hold.A more "credible" theory is potential "cyber warfare" (a pox on that term). With electronics out of sight of the passengers after check-in, access to them is far easier for 'security services'. As well as allowing easy access to snoop on passenger electronics and data, there is a potential for far more nefarious actions in the tradition of Stuxnet.Stuxnet was a worm that targeted a certain Siemens industrial control system primarily used by Iranian nuclear centrifuges. However, it spread via infected USB drives to computers, and from those computers to other USB drives, all the while using rootkits with compromised digital signatures to hide. It essentially used a digital version of '6 degrees of separation' to eventually infect its target. What better way to spread similar malware than to infect a bunch of computers on flights to the target country? It's not just laptops either, cameras need memory cards and are just as easy to infect. As a theory, it's got a lot to commend it, but that's beside the point, because, remember, this is about 'safety' and people not taking bombs into aircraft cabins.So fast forward to the present, and while expanding the ban has been kicked about, a JetBlue flight has shown the incredible danger of requiring electronics to be put into bags that often are kicked about.

By now you likely know that Denuvo, the DRM once thought to be the end of piracy, is in what looks like a losing battle for relevance. The DRM's ability to keep piracy groups from cracking video games went from months to weeks to days over the span of a year or so, with its Version 3 roll-out defeated so quickly that I could barely keep up writing the post about its demise. Reactions among game developers has varied, with some developers refusing to use Denuvo entirely, while others silently patched it out of their games once those games have been cracked. From the perspective of the gamer, of course, this all appears to be every bit as silly as every other DRM that has ever been used. Denuvo tends to annoy legitimate game buyers at best, while the pirates, against whom it is meant to fight, appear to have defeated it completely.And so the real story now is in watching how gaming companies are going to behave in this new reality where Denuvo has been neutered and gamers are revolting. Tequila Works, an indie developer responsible for Rime, has a take that ought to indicate exactly what the state of Denuvo's DRM is.

Over the last few months, a battle has played out over what will happen to the 6,700 page "CIA Torture Report" that the Senate Intelligence Committee spent many years and approximately $40 million producing. The report apparently reveals all sorts of terrible details about how the CIA tortured people for little benefit (and great harm in other ways) and lied to Congress about it. While a heavily redacted executive summary was released, there is apparently significantly more in the full report. And if we, as a country, are to actually come to terms with what our nation did, this report should be made public and there should be a public discussion on our past failings.Instead, it looks like the report is going to be returned and destroyed. Senator Richard Burr has been against the report from the beginning, and ever since he took over the Senate Intelligence Committee he's demanded that the administration return the report, arguing (totally against all evidence) that it was a work product of the Senate Intelligence Committee not meant for distribution to the executive branch. Of course, that's the exact opposite of what Senator Dianne Feinstein -- who spearheaded the effort to create the report -- has said. The intention was to understand what the CIA did and make sure the same mistakes were not repeated. And, in fact, Feinstein asked the executive branch agencies to put the document into their own records -- which would make the report subject to a FOIA request.The previous administration did not give the report back to Burr, but did block those in the executive branch from reading it or from putting it into their records -- which has so far stymied FOIA requests. And now, the Trump administration has started returning the report to Burr to destroy:

A child porn indictment in California has led to a full-fledged examination of the FBI's use of "private searches." Private searches, performed by citizens, can be used to instigate investigations and obtain warrants. In this case, the private searches were performed by Best Buy Geek Squad members, who came across alleged child porn images while fixing the defendant's computer.Private searches during computer repairs are normal. But they're not roughly analogous to searches performed with a warrant. Companies that repair electronic devices are legally required to report discovered child porn to law enforcement. What they're not supposed to do, however, is dig through devices they're repairing in hopes of finding something illegal.Most techs don't go looking for child porn. But the FBI's close relationship with Best Buy turned private searches into searches performed by paid informants. Once government money is introduced into the equation, the search can no longer be considered "private." The introduction of cash rewards also skews the incentives, possibly encouraging Geek Squad members to spend more time looking for illicit images than focusing on the repair job at hand.Documents uncovered in this case strongly suggest the FBI has been using Best Buy repair center techs as confidential informants, paying them for their discoveries while claiming these warrantless, secondhand searches are nothing more than completely legal "private searches."The EFF wants to know what the FBI knows about its long-running Best Buy partnership. The FBI isn't nearly as interested in making this information public. It sent a FOIA request to the FBI in early February. The FBI's first response was a Glomar. From the EFF's FOIA lawsuit [PDF]:

Last June, the UK held a referendum on whether to stay in the European Union, or to make a British exit -- Brexit. The majority of those casting their votes -- but only 36% of the UK electorate -- chose to turn their backs on Europe and its people. Since then, the British government has been taking every opportunity to burnish its xenophobic credentials, and with some success: recent figures show that EU citizens who have been resident in the UK for years are leaving in droves.But it seems that the UK government feels it hasn't punished those foolish enough to live beyond the white cliffs of Dover as much as it could, and has come up with a cunning new plan to show Jane and Johnny Foreigner they are not welcome in any way, shape or form. The government department that handles immigration and the granting of UK visas has just announced that there will be some additional discrimination, specifically:

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A lawsuit filed against a news website over an embedded tweet sounds an awful lot like the vindictive, moronic move of someone who thought complaining about a perfectly legal action would somehow result in an instant cash payment.

It's funny what a little added competition can do. It's no surprise that with the rise of streaming alternatives from AT&T (DirecTV Now), Dish (Sling TV), Google (YouTube TV) and Sony (Playstation Vue) -- last quarter saw one of the biggest cord cutting spikes on record. MoffettNathanson analyst Craig Moffett has noted that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. SNL Kagan agrees, noting that traditional pay TV providers lost around 1.9 million traditional cable subscribers. That was notably worse than the 1.1 million net subscriber loss seen last year.The shift has finally forced a number of denial prone industry executives to admit things are changing, even if few want to adapt their products and services (read: lower prices) in order to weather the storm.But while the simple metric of subscriber totals tells quite a tale, the story gets worse for traditional cable if you look a little deeper at the numbers. For example, Moffett has been one of the only analysts to emphasize how people who are moving or buying new homes aren't signing up for cable at their new location. Millennials moving out of their parents' houses aren't either. So while the pay TV sector lost around 762,000 customers during the first three months of the year, that total is actually higher if you include movers and home buyers:

The slow boil of ultra-intrusiveness at the border is underway. Americans apparently signed away a great deal of their rights in exchange for some national security, resulting in a Constitution-free zone extending inland 100 miles from the nation's borders. Visitors and visa holders are in for a much more revealing experience upon arrival, although they'll be on the only ones doing the revealing.The DHS has floated several ideas over the last several months, ranging from "voluntary" requests for social media account info to straight-up demanding account passwords. The vetting of newcomers and visitors is moving towards the "extreme" end of the dial, with the DHS finally formalizing the first part of its list of demands.

In what is beginning to look like a much-welcomed trend, it seems like copyright trolls are finally due to receive some pushback from powerful industry players. Whereas previous pushback has been both isolated and chiefly the province of smaller European government groups, the real curtailing of copyright trolling efforts was always going to come from a revolt by tangential corporate interests. It appears that the soldier on the front of that fight might be Telenor, an ISP that has previously pushed back against efforts for wholesale site-blocking in the name of copyright, and one that is is now looking to export its recent anti-troll win in Norway to the country of Denmark by gathering allies in the ISP industry to its side.

The Supreme Court’s recent decision in Impression Products v. Lexmark International was a big win for individuals’ right to repair and modify the products they own. While we’re delighted by this decision, we expect manufacturers to attempt other methods of controlling the market for resale and repair. That’s one reason we’re giving this month’s Stupid Patent of the Month award to Ford’s patent on a vehicle windshield design.D786,157 is a design patent assigned to a subsidiary of Ford Motor Company. While utility patents are issued for new and useful inventions, design patents cover non-functional, ornamental aspects of a product.Unlike utility patents, design patents have only one claim and usually have little or no written description. The patent only covers the non-functional design of a certain product. But design and utility patents are alike in an important way: both are intended to reward novelty. According to U.S. law, the Patent Office should issue design patents only for sufficiently new and original designs. By that test alone, it’s easy to see that the windshield patent should never have been issued.Why did Ford apply for the patent on its windshield design? One possible reason is that it’s the automotive industry’s latest attempt to control the market for repair. If the shape of your windshield is patented by Ford, then no one else can replace it without risking costly patent litigation.Ford has a troublesome history with independent repair shops: in 2015, it sued the manufacturer of an independent diagnostics tool under Section 1201 of the Digital Millennium Copyright Act, the infamous law that makes it illegal to circumvent digital locks on products you own. Later in 2015, the Librarian of Congress granted an exception to 1201 for some forms of auto repair, but manufacturers have continued to seek out creative ways to close out the market, whether it’s through copyright, contract clauses, or patents.In the Supreme Court Lexmark opinion, Justice John Roberts specifically noted the danger of automobile manufacturers shutting out competition in the repair space:

Here's the latest on how we're winning the Drug War, stripped of the DEA's deceit and spin by the Office of the Inspector General. The report [PDF] takes a look at three incidents the DEA was involved with in Honduras during 2012. The DEA's FAST (Foreign-Deployed Advisory and Support Team) team was supposed to help Honduran drug warriors (TRT-- Tactical Response Teams) fight the local drug war. It was only supposed to act in an advisory role, but it took a much more hands-on approach.A seized boat loaded with cocaine lost power in the middle of a river on its way back to the nearest village. While drifting around awaiting rescue, a passenger boat "made contact" with the seized boat (called a "pipante"). All hell broke loose.

In a decision reached recently by a Florida federal court, a person has no expectation of privacy in a phone that was thrown away. [h/t Orin Kerr] In this case, the defendant was sought in connection with a missing child investigation. He was questioned by police and released. A few days later (when he was supposed to be meeting detectives at his house), the defendant (allegedly) went for a walk in the rain and got lost. He discovered his phone was wet and, according to his testimony, threw the phone in a ditch because he believed the wet phone was completely useless.The defendant's phone was recovered by someone else. The police traced the phone back to the phone's (temporary) new owner. The phone was then subjected to a warrantless search. Police were hoping to find information about the missing child as phone records obtained earlier showed the defendant's phone had been in the area. (They also exposed inconsistencies in the defendant's assertions about where he had and hadn't been.)Instead, the police found something else: child porn. The defendant moved to have the evidence suppressed, arguing that while he may have abandoned the phone, he did not abandon his privacy interest in the phone's [contents]. From the decision [PDF]:

A couple of months ago, the Oregon state government finally decided it was tired of listening to a civilian poke holes in its yellow light timing theories. So, it did what any reasonable government would do: used licensing laws to shut him up.Mats Jarlstrom, a resident who had performed a great deal of research into traffic light timing, was informed by the state's engineering licensing board that he could no longer perform engineering without a state-ordained license. Not that Jarlstrom was actually performing any engineering. (Although he could! He has a BS in electrical engineering.) He just wanted to discuss his research with the state's engineering body. He also discussed his findings in more informal contexts, which was a necessity because the state wasn't interested in listening to him.In essence, Jarlstrom was told to stop criticizing the government without permission. He was fined $500 and told to shut up if he didn't want to be fined in the future. Jarlstrom sued the state for violating his Constitutional rights. And he's already achieved a small victory, as the Institute for Justice reports:

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We've written two separate stories about the Titan Note -- a small recording/transcription device that was originally sold via a crowdfunding project at IndieGogo. It was an interesting device, that immediately generated a fair bit of press -- though that included some reasonable skepticism about whether or not the product could really do what it claimed it could do (especially since many other larger companies couldn't seem to produce similar voice recognition capabilities, despite putting tremendous resources towards it). I still backed the project hoping that maybe it was legit. The good press still beat out the few skeptical posts and the campaign initially raised over $1 million dollars. However, soon after the project closed, IndieGogo canceled the campaign (perhaps due to a group of online skeptics contacting them) and refunded everyone's money, saying that that Titan Note had violated its terms. We reported on this not because of the project being canceled, but because in discussing the cancellation, the Verge also noted that Titan Note had sent a bogus DMCA notice over its skeptical story -- and writing about censorious DMCA takedowns is pretty common around here.Last week we wrote about Titan Note again, following what the company did after IndieGogo shut it down. Our post highlighted a number of other sketchy moves by the company, including blaming IndieGogo (and promising to sue the company for unspecified reasons). Then there was the second crowdfunding platform that also canceled a Titan Note campaign. And the fact that Titan Note kept deleting the fairly innocuous questions I asked on its Facebook page, which were just about trying to understand the real reasons for getting kicked off IndieGogo (and for sending the bogus DMCA notice). As part of this I also sent Erik Jansson, the guy behind Titan Note, an emailed list of questions.Rather than respond... he sent a DMCA takedown notice to us in response.In that last post, we included screenshots of Titan Notes' comments on Facebook. We showed the screenshots specifically because Titan Note had a history of deleting others' Facebook comments, and I feared that the company might delete its own embarrassing statements. Similarly, we posted a closely cropped image of Titan Note's own website to show the questionable claim it makes about how the product raised over $1.1 million with 12,000 backers via crowdfunding. That claim is highly misleading, given that the project was canceled and Titan Note never received that money. Its website certainly appears to imply otherwise.The DMCA notice claims that all of these screenshots are infringing:

Congress agrees (with who, I don't know): to save our nation's children from the scourge of sexting, we much incarcerate our nation's children. As Elizabeth Nolan Brown reports for Reason, the way to salvation sext-free kids runs through our nation's prison pipelines, where they'll be rehabilitated through the power of life-crippling criminal sentences and accelerated to adulthood via actual sexual assault at the hands of prisoners/guards.

So if you've been watching the Trump administration's attempt to kill net neutrality, you've probably noted that one-time net neutrality supporters Google and Netflix have been notably absent from the debate, leaving small companies and consumers outgunned and outspent in the attempt to protect the rules. If you're a regular Techdirt reader, you'll recall that despite still favoring a reputation as a consumer ally, Google hasn't really given much of a damn about protecting net neutrality since around 2010 or so. Its interest waned even further once the company launched its own ISP, Google Fiber.Netflix's blooming disinterest in the subject has been a more recent affair. In a recent letter to shareholders, the company made it clear it believes that now it's an international video powerhouse, fighting for things like an open and healthy internet and level playing fields are no longer a priority:

Ross Ulbricht -- sentenced to two life sentences for running a dark web drug marketplace -- has just had his appeal rejected by the Second Circuit Appeals Court. Ulbricht raised several challenges to the verdict and sentence, including the denials of his motion to suppress, motion for a new trial, and several alleged errors by the district court. He also challenged the reasonableness of the sentence (which certainly seems unreasonable): two life sentences plus a judgment holding him personally financially responsible for every drug transaction on the Silk Road ($184 million).On the Fourth Amendment grounds, the appeals court panel determined IP addresses have no more expectation of privacy than dialed phone numbers -- no warrants needed. Ulbricht pointed out a lot has changed, even in terms of jurisprudence, since 1979's Smith v. Maryland decision (the basis for the Third Party Doctrine) but the appeals court isn't interested in setting new precedent [PDF link].

It's a point we apparently need to keep hammering home: for there to be trademark infringement, there must be simultaneous use of a validly held trademark in the same market and there must be real or potential customer confusion. Too often businesses throughout the world are under the impression that trademarks are far more broad than they actually are and that they can be used like a cudgel to smack change out of the pockets of other businesses, competing or otherwise. There are risks to this behavior, including a ding to the bully's reputation, backlash from the public, and a loss of money spent on a legal action that need not have occurred.And, sometimes, a company risks losing the trademark over which it fought entirely. Meet Figjam & Co., a catering business in Australia that threw something of a fit over an Aussie brewery, Burleigh Brewing, having a celebrated beer entitled "FIGJAM Pale Ale."

If you hadn't noticed, the incredibly flimsy security in most Internet of Things devices has resulted in a security and privacy dumpster fire of epic proportions. And while recent, massive DDoS attacks like the one leveled against DNS provider DYN last year are just one symptom of this problem, most security analysts expect things to get significantly, dramatically worse before they get better. And by worse, most of them mean dramatically worse; as in these vulnerabilities are going to result in attacks on core infrastructure that will inevitably result in human deaths... at scale.Estimates suggest that 21 billion to 50 billion IoT devices are expected to come online by 2020. That's 21 to 50 billion new attack vectors on homes, businesses and governments. And many of these are products that are too large to replace every year (cars, refrigerators, ovens) but are being manufactured by companies for whom software -- and more importantly firmware updates -- aren't a particular forte or priority.To date, there are a number of solutions being proposed to tackle this explosion in poorly-secured devices, none of which seem to really solve the issue. Agencies like Homeland Security have issued a number of toothless standards the companies that are making these poorly-secured products are free to ignore. And efforts at regulating the space, assuming regulators could even craft sensible regulations without hindering the emerging sector in the first place, can similarly be ignored by overseas manufacturers.In the wake of the Wannacry ransomware, University of Pennsylvania researcher Sandy Clark has proposed something along these lines: firmware expiration dates. Clark argues that we've already figured out how to standardize our relationships with automobiles, with mandated regular inspection, maintenance and repairs governed by manufacturer recalls, DOT highway maintenance, and annual owner-obligated inspections. As such, she suggests similar requirements be imposed on internet-connected devices:

The Eighth Circuit Appeals Court has handed down a judicial shrug [PDF] in a case where police decided an IP address was pretty much all they needed to search eleven occupants and their devices for child porn. Qualified immunity is upheld, despite the fact the officers searched rooms they possibly had no Fourth Amendment permission to search and despite the fact that no child porn was discovered anywhere on the multiple devices they seized.The detectives had a warrant to search a single-family dwelling. This residence had been split into unofficial apartments. Despite there being some clear delineation between the multiple private spaces, the police decided the original warrant covered every separate "residence" inside the residence.

In the era of "retweets ≠ endorsements," a ruling like this makes no sense. It makes no sense even without this caveat, but welcome to Switzerland's bizarre take on free speech.

Shortly after the FCC voted to begin killing net neutrality earlier this month, we noted how a mysterious bot began spamming the FCC comment system with posts favoring the dismantling of net neutrality. Analysis of the bot indicates it has simply been pulling names from a hacked database of some kind, posting the same exact missive over and over again. The scale of the informational assault isn't subtle; one estimate suggests that more than 40% of the nearly 3 million comments filed so far are courtesy of this bot, the operator of which still hasn't been identified.The original report detailing this bot activity actually managed to get a hold of many of the people whose names are being used, and confirmed that these folks never left comments at the FCC website -- and in many instances have no idea what net neutrality even is. In some instances, many of the supposed anti-net neutrality commenters are no longer, well... living:

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When you sue Does en masses for copyright infringement with no more evidence than an IP address, you're going to run into problems. Those who aren't intimidated by baseless federal court filings fight back. The problem with every troll is they're completely unequipped to handle actual litigation.Pumping out lawsuit after lawsuit stretches the resources of most copyright trolls. Often they look to outside consultants and experts with malleable morals to pitch in on the tech side of things. David A. Lowe, a Seattle-based copyright litigator hoping to help studios somehow turn box office losers like "Elf-Man" and "London Has Fallen" belatedly turn a profit, has apparently farmed out expert witness work to Guardaley. Guardaley, somewhat infamously, is also the secret sauce behind an awful lot of copyright trolling, including for notorious troll Malibu Media -- either under its own name or using one of its many shell companies.This does not mean Guardaley offers competent work in exchange for a cut of the profits. But Guardaley's "experts" are willing to sign almost any statement put in front of them, as is evidenced by Fight Copyright Troll's latest post. According to the letter [PDF] sent by a troll victim's lawyer (J. Christopher Lynch of Lee & Hayes, PLLC), the experts employed by Criminal Productions (represented by Lowe) apparently can detect infringing activity that has yet to take place.

You might recall that Tennessee Representative Marsha Blackburn recently played a starring role in gutting FCC consumer broadband privacy protections using the Congressional Review Act. It was one of the more bare-knuckled examples of pay to play government in recent memory, and many of the straight GOP-line voters have been getting an earful from their constituents back home. Utterly unmoved, most of those lawmakers have quickly shifted on their heels and are now busy trying to gut net neutrality with the same blatent disregard for public opinion they showed while killing privacy protections.In what appears to be largely a PR move to try and deflect significant criticism for her large ISP-friendly policies, Blackburn has subsequently introduced the BROWSER Act -- aka the Balancing the Rights of Web Surfers Equally and Responsibly Act. The act, as the FCC's now-discarded rules would have done, requires that consumers must opt in before a broadband provider is allowed to collect and sell subscriber information.According to a Blackburn press statement on the legislation, killing the FCC's popular privacy protections, then introducing this new bill (which has little more than zero chance of passing for reasons we'll get into) was necessary to eliminate "confusion":

The Fifth Circuit Appeals Court has issued a ruling on cell site location data which basically gives the government permission to engage in real-time tracking without a warrant. The acquisition of historical cell site location data is still the source of much judicial dispute. But at the federal appellate level, courts that have handled these cases have decided no warrant is needed. Location records are just another thing law enforcement can have warrantless access to, thanks to the Third Party Doctrine.Prospective location records, like those obtained in this case, have received less scrutiny. While ostensibly third party records, these allow for "real-time" tracking of individuals using records flowing directly to law enforcement almost as quickly as they're obtained by the cell service provider. A defendant tracked using this poor man's Stingray moved to have the evidence suppressed, arguing the near-real time warrantless "search" violated his Fourth Amendment rights. The court disagreed, finding the momentary landing at the service provider was enough to make them third party records, even if law enforcement was figuratively (or possibly literally) hovering over the cell provider's shoulder as the location records rolled in. From the ruling [PDF]:

New York's court system is finally pushing back against the NYPD's refusal to provide better accounting of its forfeiture programs. Late last year, the NYPD informed people requesting information on seizures it had no way of compiling this data for them. Its $12 million software -- meant to provide "cradle-to-grave" tracking of seized property -- apparently couldn't handle routine inquiries about seizure totals.When the NYPD did decide to talk about its forfeiture operations, it used incomplete and misleading numbers. It claimed to have forfeited only around $12,000 in 2015, something miles away from the $69 million estimate of seized cash-on-hand others had cobbled together using info the NYPD had managed to turn over. According to numbers the NYPD said its software couldn't compile, the department had generated $6 million in revenue in 2015 alone.The Bronx Defenders, a group of public defenders, has been trying for nearly four years to force the NYPD to turn over documents related to its forfeiture programs. The NYPD has a few of these, including an unofficial program that turns personal belongings into "evidence" upon arrest and forces those with dismissed charges or acquittals to jump through a number of time-consuming and expensive hoops to reclaim their belongings -- which include things like cellphones, cash, credit cards, and prescription medication.The NYPD's refusal to cooperate with the Bronx Defenders' FOIL request has led to a lawsuit. The city moved to have it dismissed, but Judge Arlene Bluth doesn't see much merit in the NYPD's arguments. Or actions.

As a parting gift to the incoming president, Barack Obama approved information-sharing rules which gave sixteen federal agencies access to unminimized NSA collections. The whole list of agencies involved in the information sharing can be found at the ODNI's (Office of the Director of National Intelligence) website:

This week we've got a special crossover episode with our friends at TechFreedom. Mike joined their Tech Policy Podcast recently to discuss notice and takedown systems and the future of internet copyright, and we're cross-posting the conversation as an episode of the Techdirt Podcast too.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.

Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

More bag-sorting and intrusiveness awaits more flyers thanks to the DHS and TSA. The TSA has already banned electronic devices larger than a cellphone from being brought on board flights originating in 10 predominantly Muslim countries. Now, it wants to extend that ban to European nations. For now, the new inconvenience is in its test phase.Rather than make things safer, officials now want lithium ion batteries and other similar fire hazards to be stowed in areas where no one's likely to notice a developing fire and subject them to the sort of abuse airline employees save for items they haven't personally purchased. All in the name of safety, and all in the name of unspecified threats.The additional stupidity is this would only apply to flights in and out of the US, but not to domestic flights… at least not at this point. DHS boss John Kelly sort of clarified this on Fox News last week, utilizing a very governmental vagueness.

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Since the FCC's decision to begin gutting net neutrality earlier this month, broadband providers have been busy as hell trying to convince the public that gutting these essential consumer protections is just no big deal. We, of course, had that horrible Verizon video in which the company not only falsely claimed that net neutrality isn't being killed, but tried to pretend ISPs like Verizon didn't just spend a decade trying to kill it. Other ISPs like Comcast have penned similar "nothing to see here, guys" missives, in which they insist this whole thing is all some kind of big misunderstanding.While these ISPs use polite, sensible-sounding public statements to insist that nothing's really changing and none of this will hurt consumers (that's false, if it needs repeating), their usual assortment of think tankers, astroturfers, lobbyists, consultants, hired economists and other "doller per holler" policy folks are under no such constraints, and have been busy taking an already hyperbolic debate to an entirely new level.For example, just two days removed from the recent Manchester bombing, Forbes ran this abomination of an attempt at prose by former FCC Commissioner Harold Furchtgott-Roth, who now works at the ISP-funded Hudson Institute. In none-too-subtle fashion, Furchtgott-Roth uses the Manchester attack to suggest that none of this bloodshed would have happened if it wasn't for net neutrality protections:

It's the normal state of things, but familiarity makes it no less enjoyable to observe: power changes hands in the White House and suddenly everything the previous president authorized with the support of his followers becomes a dangerous weapon in the hands of the new guy. The only surprising thing is the cycle never ends.As has been noted here, longtime fans of government surveillance under Obama were suddenly deeply concerned about Trump's command of the nation's spycraft. Then there were all those Republicans who helped assemble the surveillance machinery in the wake of the 9/11 attacks, expressing their displeasure with the FBI, NSA, and others using powers they'd granted them. Domestic surveillance is fine, they argued. Years later, it's NIMBY but for recently-elected presidents.But there's a darker current running below the irony and schadenfreude. Both sides applaud possible surveillance abuses when they harm their political enemies, but act like these are Espionage Act violations when the target is one of their own. The ultimate problem isn't the right/left, Republican/Democrat partisan divide and the hypocrisy that goes with it. The problem is the abuse/misuse of surveillance powers for political gamesmanship.The FBI didn't go rogue after Trump canned Director James Comey in the most duplicitous, chickenshit way ever. It had been coloring outside of the lines for months, if not years, with Comey making the most of his many grandstands to push his personal agenda at the expense of the agency's. He routinely made statements others in the DOJ have refused to back up and broke protocol (twice) by openly discussing investigations that resulted in no criminal charges.The Trump presidency has been notable for the number of leaks it has prompted, which seem to spring from nearly every agency with access to collected intelligence. The reaction to the leaks by the Trump Administration has been awful in pretty much every way, and the looming threat of prosecution by Jeff Sessions' god-guns-and-government DOJ hasn't done much to slow the bleeding.What's being overlooked is the danger this autonomy poses. While some would love to see every presidential administration undermined by intelligence leaks [raises hand], this isn't always a good thing. Nor is it something that should be cheered on without reservation when it's the other side sustaining damage. Agencies with access to domestic communications (and there are a lot of them, thanks to loosened information-sharing restrictions) have their own agendas to push, too, and they're rarely directly aligned with either party.As Julian Sanchez notes, partisans need to stop cheering when things go their way and crying foul when they don't. The problem goes far beyond politics and stabs at the heart of rights and protections the government is supposed to be ensuring for everyone.

One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.

This week, both winning comments on the insightful side came in response to our post about more legislators jumping on the "blue lives matter" bandwagon. Since the top comment was actually further down the same thread as the runner up, this week we'll present the winners in reverse order, starting with the second place winner from Anonymous Anonymous Coward who swooped in with the first comment on the post:

Five Years AgoThis week in 2012, the jury in the Oracle/Google patent trial ruled that there was no infringement, while Judge Alsup revealed his coding knowledge on the copyright side. MPAA boss Chris Dodd was saying they should stop calling infringement "theft" despite the MPAA's own website doing exactly that many times, Congress proposed giving ICE another ten million dollars to fight intellectual property infringement, and TV networks were suing DISH with the insane argument that skipping commercials is copyright infringement. Meanwhile, five years before its recent successful reusable rocket tests, SpaceX was making its first successful cargo run to the ISS, marking a significant milestone in private space travel.Ten Years AgoThis week in 2007, the proprietary video services launched by various companies were continuing to struggle and die off, with CNN dropping its paid online video service while Time Warner struggled with its own, and Budweiser got ready to kill the ill-fated Bud.TV. The RIAA was trying to close the "radio loophole" by convincing Congress to force radio stations to pay royalties for playing music (leading some to notice that the industry was similarly worried about the "jukebox loophole" nearly half a century earlier), even while it was carefully backing down on new webcasting royalty rates that would have killed smaller webcasters.Fifteen Years AgoThe webcasting battle was not new — five years earlier this week in 2007, an equally disastrous attempt to enact webcasting royalties fell through. Meanwhile, a virus that aimed to stop the trading of infringing material was spreading on the Kazaa network, Hollywood was trying to get copy protection built into all analog-to-digital converters, and you could cut the tension between Silicon Valley and Hollywood with a knife. Google launched its now-defunct Labs page, authoritarian regimes were wielding the power of the internet in frightening new ways, and the still-DVD-based Netflix went public, joining the ranks of stocks-you-really-wish-you'd-bought.One-Hundred And Seventy-One Years AgoThey've done good reporting and bad, they've struggled to adapt to the digital world, and we've often criticized them here on Techdirt — but nevertheless the Associated Press is an old and proud fixture of the journalistic world, and it was on May 22nd, 1846 that it was founded by five New York City dailies to share the cost of covering the Mexican-American War.

Not wanting to be outdone by idiots in Congress, two idiot senators from the great state of Texas* are pushing their own "Blue Lives Matter" legislation. Senators Cruz and Cornyn have (re)introduced the Backed and Blown "Back the Blue Act," which adds mandatory minimums to any act of violence against most government officials. Oh, and for extra fun, automatic death penalty considerations for anyone charged under this act.I'll get out of the way and allow Senator Cornyn to toot his own horn:

The thing about biometric scanning as a security practice is it is one of those things that sounds great. "Lock your phone with your fingerprint or facial scan", shout the manufacturers and security companies that came up with the scans. Well, shit, thinks the average person, if nobody else has my face I'm in the clear. Even when movies and television tackle the subject, the methods for breaking the biometric security typically involve convoluted plans and insane stunts so brazen they would make Danny Ocean's jaw drop.The problem is that the hype around this tech is typically more effective than the tech itself. Fingerprint scanners are easily fooled and facial recognition software has been shown to be defeatable by, and I swear this is true, printouts of a person's face. That isn't security, it's a punchline. So, when Samsung and its security partner decide to pimp the iris-scanning security feature of the Galaxy S8 with language like "airtight" and suggestions that owners of the phone can "finally trust that their phones are protected", one would expect those claims to be backed up by strong technology.It isn't.

We're going to jump right into this one without too much of a preamble, other than a quick refresher on what trademark law is designed to accomplish and what triggers a concern for infringement. The idea behind the law itself is to allow companies to utilize unique identifiers, be it name or branding, in order to distinguish itself from competitors by monopolizing those trademarkable items. The chief concern regarding infringement, therefore, is real or potential customer confusion in the marketplace as to the source of a particular product or service. With that out of the way, let's have some fun discussing how a recent lawsuit filed by PayPal against Pandora gets just about everything wrong with respect to the above preamble.

You may recall that when Charter proposed spending $79 billion to acquire Time Warner Cable and Bright House Networks last year, the usual promises of job creation, lower prices, better broadband, and improved customer service came along for the ride. The problem: none of those things have materialized under the new company (Spectrum). In fact, like so many telecom mergers, many customers of the nation's now second-largest cable provider say Charter's prices have gotten higher and the company's customer service (already ranked among the worst in any industry) has somehow managed to get worse.With this week being the one-year anniversary of this mega-deal, customers in acquired territories say the company is engaged in yet another round of blanket rate hikes. In Lexington, Kentucky, for example, Spectrum customers say they're being forced to pay $20-$40 more (plus assorted fees to swap out their cable boxes) for effectively the same service. And when they call in to complain, they're discovering that part of the new Spectrum experience involves a company that's no longer willing to haggle on promotions (because it doesn't have to):

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.Earlier this month, I helped Techdirt's think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It's also why sites like Yelp let users post anonymously, because often that's the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.But as we also see, people who don't like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that's a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can't always fight them -- for instance, like DMCA takedown notices, they may simply get too many -- but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user's speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms' efforts to stand up for their users even more risky and expensive than they already are.So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.

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Remember, to hear the MPAA tell it, piracy is really killing the movie industry. It's been whining about piracy for basically my entire lifetime, and constantly predicting its own demise if "something" is not done. And, despite the fact that Congress has repeatedly obliged Hollywood in ratcheting up copyright anti-piracy laws and despite the fact that the MPAA has been clearly wrong repeatedly (such that the new technologies it feared actually helped expand Hollywood's business), the studios continue to push for awful changes to copyright law, citing the horrors of piracy.And yet... now it's coming out that Disney not only had a good year last year, it had the best year ever for a movie studio. Not surprisingly, Disney put out its own glowing press release over this:

By now, most Techdirt readers realize that far too many members of Congress don't so much have thoughts about technology policy, as they do bulleted mental lists of talking points provided by a lobbyist happy to do their thinking for them. That has been particularly true when it comes to telecom policy over the last few months, especially the GOP's ham-fisted attack on popular consumer broadband privacy protections and the telecom sector's self-serving frontal assault on net neutrality.Over the last few weeks, as the FCC was preparing to begin dismantling net neutrality rules, House lawmakers received an email from GOP leadership educating them on how to best defend the agency's extremely unpopular decision. Included in that e-mail was an attached list of talking points (pdf) making all manner of disengenous claims about the net neutrality debate:

People in Australia have been asking for the introduction of fair use as part of a broader copyright reform for a long time. Techdirt first wrote about it four years ago, then again last year, when the Australian Law Reform Productivity Commission produced one of the best reports ever written on the topic by a government body. Amazingly, most of its ideas, including a call for fair use, survived in the final version of that document, which appeared at the beginning of this year.However, it turns out that those are just a few of the six Australian government reports which have recommended adopting fair use for copyright in Australia. That emerges from a new entry on the English-language Wikipedia, called "History of fair use proposals in Australia". Its appearance is not simply down to some random urge to wiki: it's part of a new campaign by Wikipedians in Australia to put pressure on the government there to bring in fair use after so many official calls to do so. A post on the Wikimedia blog explains the current copyright situation in Australia:

We've heard many stories at this point about video game producers attempting to use copyright and the DMCA as a censorship tool against criticism. As it happens, the frequency of these stories has tapered off somewhat as best as I can tell, even as the indie gaming scene has resulted in an explosion of small gaming studios. The reason for that delta is probably that the gaming community as a whole has become both far more educated and vocal about any attempts to use copyright as a censorship tool. Rightly or wrongly, honesty and transparency in gaming reviews and commentary has become something of a thing the past few years and one of the possibly unintentional results of that campaign has been for attempts at stifling criticism about games to be top of the average gamer's mind.Which brings us to Wargaming, the studio behind World of Tanks. If you have not heard about the drama from last week yet, it began with a YouTuber called SirFoch, who issued a scathing and expletive-laden review of a specific tank customers could purchase withing the game.

We've already discussed a memo read by some FBI officials that supposedly was a record of an Oval Office conversation between former FBI Director James Comey and Donald Trump apparently contains the president asking after the possible prosecution of journalists for publishing leaks. Hearsay squared, but still in line with Trump's antagonistic relationship with free speech.There's not much popular support for treating journalists like criminals just for doing their job, but there appears to be plenty of administrative support for the idea. Comey claimed he wouldn't go after journalists for publishing leaks -- something he said with one side of his mouth while redefining journalism to exclude Julian Assange and Wikileaks, which the DOJ is apparently considering pursuing charges against.But that's not the extent of the new administration's Bullets For Messengersâ„¢ program. As Betsy Woodruff reports for The Daily Beast, the DOJ is looking to crack down on leaks, leakers, and -- given its inability/unwillingness to subject itself to accountability -- whistleblowers.