The city of Sarajevo passed a law in 2000 forbidding anyone but the city of Sarajevo from using the name Sarajevo. Not much has been said about it because the Sarajevo city council hasn't done much about it. But recently owners of Facebook pages containing the word "Sarajevo" have been receiving legal threats from the city's government.Sarajevo resident Aleksandar Todorović wrote a long blog post detailing the stupidity of this law, which contains firsthand accounts of Facebook page owners who've been threatened with criminal proceedings for failing to secure permission to use the name of a city on their pages. As Todorović notes, his blog post is illegal, simply because it hasn't been pre-approved by Sarajevo's city council.The law can be read here (and loosely translated by Google). It basically states the city owns the name and all others wishing to use it must ask the city council for permission before using it. It also states there are some requests that just aren't going to be granted.

The privacy implications of collecting DNA are wide-ranging, not least because they don't relate solely to the person from whom the sample is taken. Our genome is a direct product of our parents' genetic material, so the DNA strings of siblings from the same mother and father are closely related. Even that of more distant relations has many elements in common, since they derive from common ancestors. Thus a DNA sample contains information not just about the donor, but about many others on the relevant family tree as well. A new paper published in Nature Genetics (behind a paywall, unfortunately) shows how that fact enables the genomes of long-dead ancestors to be reconstructed, using just the DNA of their descendants.As an article in Futurism explains, the unique circumstances of the individual chosen for the reconstruction, the Icelander Hans Jonatan, aided the research team as they sought to piece together his genome nearly two centuries after his death in 1827. The scientists mainly came from the Icelandic company deCODE Genetics, one of the pioneers in the world of genomics, and highly-familiar with Iceland's unique genetic resources. The following factors were key:

The last time we checked in with Vice Media it was firing off a cease and desist letter to a tiny little punk band called ViceVersa, demanding that it change its name because Vice Media has a trademark for the word "vice" for several markets. In case you thought that occurrence was a one-off for Vice Media, or the result of an overzealous new hire to the company's legal team, Vice Media is again trademark bullying another comany, Vice Industry Token. VIT is apparently a pornography cryptocurrency company, which is a three-word combination that I bet god herself could never have imagined being uttered. The claim in the C&D notice that VIT got is, of course, that Vice Media has a "vice" trademark and that this use infringes upon it.

The FBI set the first (and second!) rules of Stingray Club: DO NOT TALK ABOUT STINGRAY CLUB. Law enforcement agencies seeking to acquire cell tower spoofing tech were forced to sign a nondisclosure agreement forbidding them from disclosing details on the devices to defendants, judges, the general public… sometimes even prosecutors.A new wave of parallel construction washed over the land, distancing defendants from the source of evidence used against them. Pen register orders -- used to cover the tracks of Stingray searches -- started appearing en masse, as though it was 1979 all over again. If curious lawyers and/or judges started sniffing around, agencies were instructed to let accused criminals roam free rather than expose details about Stingray devices. According to the FBI, public safety would be irreparably damaged if Stingray details were exposed. Apparently the return of dangerous criminals to the street poses no harm to the public.Another NDA has been uncovered, thanks to a lengthy public records lawsuit. The document finally handed over by Delaware State Police to the ACLU was once referred to as "mythical" by the DSP in court. Yes, the State Police once claimed this NDA never existed. It did so while claiming it had zero communications with Harris while acquiring its Stingray. The ACLU obviously found this hard to believe and the court sent the DSP back to search harder. The Harris NDA is real. And it's spectacular.

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

Spain's government has gotten into the business of regulating speech with predictably awful results. An early adopter of Blues Lives Matter-esque policies, Spain went full police state, passing a law making it a crime to show "disrespect" to law enforcement officers. The predictable result? The arrest of someone for calling cops "slackers" in a Facebook post.Spain's government is either woefully unaware of the negative consequences of laws like this or, worse, likes the negative consequences. After all, it doesn't hurt Spain's government beyond a little reputational damage. It only hurts residents of Spain. When you're already unpopular, thanks to laws like these and suppression of a Catalan independence vote, what difference does it make if you're known better for shutting down dissent than actually protecting citizens from hateful speech?One Catalan resident is getting the full "hate speech" rap-and-ride.

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There's no denying that Rupert Murdoch built up quite a media empire over the decades -- but that was almost all entirely focused on newspaper and pay TV. While he's spent the past few decades trying to do stuff on the internet, he has an impressively long list of failures over the years. There are many stories of him buying internet properties (Delphi, MySpace, Photobucket) or starting them himself (iGuide, Fox Interactive, The Daily) and driving them into the ground (or just flopping right out of the gate). While his willingness to embrace the internet early and to try things is to be commended, his regular failures to make his internet ventures successful has pretty clearly soured him on the internet entirely over the years.Indeed, over the past few years, Murdoch or Murdoch surrogates (frequently News Corp's CEO Robert Thomson) have bashed the internet at every opportunity, no matter how ridiculous. Almost all of these complaints can be summed up simply: big internet companies are making money and News Corp. isn't -- and therefore the problem is with those other companies which should be forced to give News Corp. money.A few years back, I ended up at a small media conference where Rupert's son James Murdoch spoke at great length about his plans for News Corps' internet business -- and what struck me was that he was almost 100% focused on copying the pay TV model. This wasn't a huge surprise -- I think at the time he was running Sky TV -- but it shocked me that he appeared to think through force of will he could turn the internet into a walled garden a la cable and satellite TV systems. Not surprisingly, Rupert is thinking along similar lines, and earlier this week released a bizarre and silly statement saying Facebook should start paying news sites "carriage fees" a la cable companies:

The General Accounting Office (GAO) says the agency will launch an investigation into the fraud that occurred during the FCC's rushed repeal of net neutrality rules. Consumers only had one real chance to weigh in during the public comment period of the agency's misleadingly-named "Restoring Internet Freedom" proposal. But "somebody" paid a group or individual to fill the comment period with bogus comments from fake or even dead people, in a ham-fisted attempt to downplay massive, legitimate public opposition to the plan.The FCC then blocked a law enforcement investigation into the fraud, refusing to hand over server logs or API key data that could easily disclose the culprit(s). FOIA requests and public requests for help (one coming from myself) were also promptly ignored by the Trump FCC.To help speed things along, the GAO says it will launch an investigation into the bogus comments and the FCC's response to them, though they warn in a letter that it may be at least five months before they have the staff and resources for such an inquiry:

Law enforcement officers will often testify that seeking warrants is a time-consuming process that subjects officers' sworn statements to strict judicial scrutiny. The testimony implies the process is a hallowed tradition that upholds the sanctity of the Fourth Amendment, hence its many steps and plodding pace. The problem is law enforcement officers make these statements most often when defending their decision to bypass the warrant process.Criminals move too fast for the warrant process, they argue. Officers would love to respect the Fourth Amendment, but seem to feel this respect is subject to time constraints. Sometimes they have a point. And when they have a legitimate point, they also have a legitimate exception: exigent circumstances. In truly life-threatening situations, the Fourth Amendment can be shoved aside momentarily to provide access to law enforcement officers. (The exception tends to swallow the rule, though. Courts have pushed back, but deference to officers' assertions about exigency remains the status quo in most courtrooms.)The exigent circumstances exception remains intact, something law enforcement can lean on when the warrant process takes too long. When lives or evidence are at stake, sometimes corners have to be cut to ensure officers can get their man/woman and any evidence on hand. But the oft-stated claim that warrant acquisition is a long and difficult process is undercut completely when underlying facts about warrant approval are examined. Jessica Miller and Aubrey Weaver of the Salt Lake City Tribune took a close look at electronic warrants approved by Utah judges and found even the most exigent of exigent circumstances rarely evolve faster than warrants can be obtained.

Techdirt posts about sexting have a depressingly similar story line: young people send explicit photos of themselves to their partners, and one or both of them end up charged with distributing or possessing child pornography. Even more ridiculously, the authorities typically justify branding young people who do this as sex offenders on the grounds that it "protects" the same individuals whose lives they are ruining. Judging by a story in The Local, reporting on a press release that first appeared on the MyNewsDesk site (original in Danish), the police in Denmark seem to be taking a more rational approach. Rather than charging the two young people involved for sexting, they are charging 1,004 people who shared the video and images afterwards, some several hundred times:

Any reading of our thorough coverage of Denuvo DRM could be best summarized as: a spasm of success in 2015 followed by one of the great precipitous falls into failure in the subsequent two years. While some of us are of the opinion that all DRM such as Denuvo are destined for eventual failure, what sticks out about Denuvo is just how stunningly fast its fall from relevancy has come about. Once heralded as "the end of game piracy," even the most recent iterations of Denuvo's software is being cracked on the timeline of days and hours. You would be forgiven if, having read through all of this, you thought that Denuvo was nearly toxic in gaming and security circles at this point.But apparently not everyone thinks this is true. Irdeto, the company out of the Netherlands we last saw pretending that taking pictures of toys is copyright infringement and insisting that a real driver of piracy was winning an Oscar, has announced that it has acquired Denuvo.

A few weeks ago we posted an update on Montagna v. Nunis. This was a case where a plaintiff subpoenaed Yelp for the identity of a user. The trial court originally denied Yelp's attempt to quash the subpoena – and sanctioned it for trying – on the grounds that platforms had no right to stand in for their users to assert their First Amendment rights. We filed an amicus brief in support of Yelp's appeal of that decision, which fortunately the Court of Appeal reversed, joining another Court of Appeal that earlier in the year had also decided that of course it was ok for platforms to try to quash subpoenas seeking to unmask their users.Unfortunately, that was only part of what this Court of Appeal decided. Even though it agreed that Yelp could TRY to quash a subpoena, it decided that it couldn't quash this particular one. That's unfortunate for the user, who was just unmasked. But what made it unfortunate for everyone is that this decision was fully published, which means it can be cited as precedent by other plaintiffs who want to unmask users. While having the first part of the decision affirming Yelp's right to quash the subpoena is a good thing, the logic that the Court used in the second part is making it a lot easier for plaintiffs to unmask users – even when they really shouldn't be entitled to.So Yelp asked the California Supreme Court to partially depublish the ruling – or, in other words, make the bad parts of it stop being precedent that subsequent litigants can cite in their unmasking attempts (there are rules that prevent California lawyers from citing unpublished cases in their arguments, except under extremely limited circumstances). And this week we filed our own brief at the California Supreme Court in support of Yelp's request, arguing that the Court of Appeal's analysis was inconsistent with other California policy and precedent protecting speech, and that without its depublication it will lead to protected speech being chilled.None of this will change the outcome of the earlier decision - the user will remain unmasked. But hopefully it will limit the effect of that Court of Appeal's decision with respect to the unmasking to the facts of that particular case.

It should be no surprise that I'm an unabashed supporter of free speech. Usually essays that start that way are then followed with a "but..." and that "but..." undermines everything in that opening sentence. This is not such an essay. However, I am going to talk about some interesting challenges that have been facing our concepts of free speech over the past few years -- often in regards to how free speech and the internet interact. Back in 2015, at our Copia Summit we had a panel that tried to lay out some of these challenges, which acknowledged that our traditional concepts of free speech don't fully work in the internet age.There are those who argue that internet platforms should never do any moderation at all, and that they should just let all content flow. And while that may be compelling at a first pass, thinking beyond that proves that's unworkable for a very basic reason: spam. Almost everyone (outside of spammers, I guess) would argue that it makes sense to filter out/moderate/delete spam. It serves no useful purpose. It clutters inboxes/comments/forums with off-topic and annoying messages. So, as Dave Willner mentions in that talk back in 2015, once you've admitted that spam can be filtered, you've admitted that some moderation is appropriate for any functioning forum to exist. Then you get to the actual challenges of when and how that moderation should occur. And that's where things get really tricky. Because I think we all agree that when platforms do try to moderate speech... they tend to be really bad at it. And that leads to all sorts of stories that we like to cover of social media companies banning people for dumb reasons. But sometimes it crosses over into the absurd or dangerous -- like YouTube deleting channels that were documenting war crimes, because it's difficult to distinguish war crimes from terrorist propaganda (and, sometimes, they can be one and the same).An even worse situation, obviously, is when governments take it upon themselves to mandate moderation. Such regimes are almost exclusively used in ways to censor speech that should be protected -- as Germany is now learning with its terrible and ridiculous new social media censorship law.But it's not that difficult to understand why people have been increasingly clamoring for these kinds of solutions -- either having platforms moderate more aggressively or demanding regulations that require them to do so. And it's because there's a ton of really, really crappy things happening on these platforms. And, as you know, there's always the xkcd free speech point that the concept of free speech is about protecting people from government action, not requiring everyone to suffer through whatever nonsense someone wants to scream.But, it is becoming clear that we need to think carefully about how we truly encourage free speech. Beyond the spam point above, another argument that has resonated with me over the years is that some platforms have enabled such levels of trolling (or, perhaps to be kinder, "vehement arguing") that they actually lead to less free speech in that they scare off or silence those who also have valuable contributions to add to various discussions. And that, in turn, raises at least some questions about the idea of the "marketplace of ideas" model of understanding free speech. I've long been a supporter of this viewpoint -- that the best way to combat so-called "bad speech" is with "more speech." And, you then believe that the best/smartest/most important ideas rise to the top and stomp out the bad ideas. But what if the good ideas don't even have a chance? What if they're silenced before they even are spoken by the way these things are set up? That, too, would be an unfortunate result for free speech and the "marketplace of ideas".In the past couple of months, two very interesting pieces have been written on this that are pushing my thinking much further as well. The first is a Yale Law Journal piece by Nabiha Syed entitled Real Talk About Fake News: Towards a Better Theory for Platform Governance. Next week, we'll have Syed on our podcast to talk about this paper, but in it she points out that there are limitations and problems with the idea of the "marketplace of ideas" working the way many of us have assumed it should work. She also notes that other frameworks for thinking about free speech appear to have similar deficiencies when we are in an online world. In particular, the nature of the internet -- in which the scale and speed and ability to amplify a message are so incredibly different than basically at any other time in history -- is that it enables a sort of "weaponizing" of these concepts.That is, those who wish to abuse the concept of the marketplace of ideas by aggressively pushing misleading or deliberately misguided concepts are able to do so in a manner that short-circuits our concept of the marketplace of ideas -- all while claiming to support it.The second piece, which is absolutely worth reading and thinking about carefully, is Zeynep Tufekci's Wired piece entitled It's the (Democracy-Poisoning) Golden Age of Free Speech. I was worried -- from the title -- that this might be the standard rant I've been reading about free speech somehow being "dangerous" that has become tragically popular over the past few years. But (and this is not surprising, given Tufekci's previous careful consideration of these issues for years) it's a truly thought provoking piece, in some ways building upon the framework that Syed laid out in her piece, noting how some factions are, in effect, weaponizing the very concept of the "marketplace of ideas" to insist they support it, while undermining the very premise behind it (that "good" speech outweighs the bad).In particular, she notes that while the previous scarcity was the ability to amplify speech, the current scarcity is attention -- and thus, the ability to flood the zone with bad/wrong/dangerous speech can literally act as a denial of service on the supposedly corrective "good speech." She notes that the way censorship used to work was by stifling the message. Traditional censorship is blocking the ability to get the message out. But modern censorship actually leverages the platforms of free speech to drown out other messages.

As we've been warning for a while, the next phase in the war on net neutrality for giant ISPs is pushing a new "net neutrality law" in name only. ISPs are nervous that the FCC's net neutrality repeal won't survive a court challenge due to the numerous instances of fraud and other procedural gaffes. As such, they've convinced blindly-loyal lawmakers like Marsha Blackburn to push fake net neutrality legislation whose entire purpose is to prevent the FCC's 2015 rules from being restored, or real, tough rules from being passed later.These proposed "solutions" ban behaviors ISPs had no intention of doing (like the ham-fisted blocking of websites), but avoid addressing any of the numerous areas where net neutrality violations now occur, from usage caps, overage fees and zero rating, to interconnection shenanigans designed to drive up costs for streaming video competitors like Netflix. But with Democrats hoping to use net neutrality as a wedge issue in the coming midterms (and pushing for a repeal reversal via the CRA), these bogus solutions haven't seen much traction outside of paid editorial support by telecom lobbyists.Enter AT&T, who this week bought full-page ad space in the New York Times and Washington Post to publish this love letter from AT&T CEO Randal Stephenson to American consumers. In it, Stephenson proclaims that despite having spent millions trying to gut consumer protections of every color, the company is a breathless advocate for the "open internet," and is really eager to lead the charge for "new laws that govern the internet and protect consumers":

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No one knows how to handle "fake news." Rather than step back and see what light-touch approaches might work, governments all over the world are rushing forward with bad ideas that harm speech and threaten journalism. No one seems to be immune to the "do something" infection and everything proposed is just another way to give governments more direct control of social media platforms and news outlets.In Italy, the government control of speech under the guide of "fake news" deterrence is being done in the worst way possible. It's not being handed to a regulatory body with instructions to sort of keep an eye on things. Instead, as Poynter reports, it's rolling out as a heckler's veto backed by armed officers.

We've long noted how state legislatures are so corrupt, they often quite literally let entrenched telecom operators write horrible, protectionist laws that hamstring competition. That's why there's now 21 states where companies like AT&T, Verizon and Comcast have successfully lobbied for laws banning towns and cities from building their own broadband networks, even in instances where the incumbent refuses to. In many states, these laws even ban public/private partnerships, often the only creative solution for better broadband in low ROI markets.FCC efforts to pre-empt states from engaging in this kind of protectionism have been shot down by the courts, and voters continue to elect lawmakers whose top priority is protecting entrenched telecom duopolies, ensuring this cycle of pay-to-play dysfunction continues.Occasionally lawmakers propose bills attempting to shake up this cronyism, but the ISP-stranglehold over lawmakers usually ensure they go nowhere. Case in point: Rep. Anna Eshoo has introduced the Community Broadband Act of 2018 (HR 4814), which would not only ban states from passing rules prohibiting community broadband, but would ensure that any community broadband networks that get built don't get preferential treatment by regulators if they compete with private-sector ISPs. As bill co-sponsor Mike Doyle notes, these networks are often the only way many towns and cities get decent service:

Dr. Douglas Berger, an American psychiatrist offering services to ex-pats in Japan, recently sued a bunch of Redditors for telling other Redditors to steer clear of his services. Berger's lawsuit was exhaustive, covering several months of disparaging comments delivered by Redditors, but much of what Berger considered libel fell under the category of "protected opinion."Berger's ultimate goal appeared to be a revamp of his Google search results. Sitting ahead of multiple URLs linked to Berger and his Japanese business (many which appear to be owned by Berger himself) were links to multiple Reddit threads with unhelpful (for Berger anyway…) titles like "Stay away from 'psychiatrist' Doug Berger." In these threads, Berger was accused of everything from a lack of attentiveness during sessions to harassment to dodging income taxes.It wasn't pretty, but Berger's lawsuit was even uglier. Berger wanted a court to unmask multiple anonymous Redditors, while offering up little more than his opinions about opinions. While there were a few marginally-actionable statements listed in the lawsuit, Berger targeted every Redditor who'd ever said anything less than favorable about him.The Redditors put together a fundraising page for legal fees and secured the help of Marc Randazza. The good news is most of this is now unnecessary.

This post will come as no surprise to those of us super-interesting people that for some reason have made trademark law and news a key fulcrom point in our lives, but the United States Army has filed an opposition to the trademark application for the Las Vegas Golden Knights. Some background is in order should you not be one of the roughly twelve of us in America that are hockey fans.Starting around 2007, the United States Army went on something of a trademarking spree, filing for marks long in use, including some of the monikers for well known units and/or what I would call "show units", or units that chiefly serve to be seen at entertainment venues such as air and water shows. Included in these marks were the Army's "Black Knights" mascot for its military academy athletic teams and its Golden Knights paratrooping unit that performs at air and water shows all over the country. The army uses these trademarks to rake in millions of dollars in merchandise.The Las Vegas Golden Knights is an NHL expansion hockey team started by a graduate of West Point, Bill Foley, who wanted the team's garb and name to serve as an homage to his military roots. To that end, he had initially wanted to name the team "The Black Knights", but switched to "The Golden Knights" after the Army voiced its displeasure. The color scheme for the team is a clear call back to the paratrooping team that shares the name.It has been these clear admissions of homage that the Army has pointed to as an indication that this is obvious trademark infringement.

As the result of a public records battle with a local newspaper over court records, two Virginia politicians have decided to address the issue with legislation. One hopes to further open court records to the public.

In the midst of the political chaos in America and the world at large, a whole lot of attention has been turned to Facebook and its role in modern democracy. The social network has responded by announcing another round of news feed changes, the true impact of which (if any) remains far from clear. This week, we're joined by Mathew Ingram from the Columbia Journalism Review to talk about Facebook's changes, and whether we can or should expect them to fix anything.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.

Two of the most important developments in China's clampdown on the digital world took place last year, when the country's Ministry of Industry and Information Technology declared that all VPN providers needed prior government approval to operate, and then apps stores were forced to remove the many VPNs on offer there. In some parts of China, VPNs were banned completely, but such a total shutdown is not really an option for cities with many businesses that require secure overseas communication channels. That put the Chinese authorities in something of a quandary: how could they reconcile their desire to prevent VPNs being used to circumvent online controls, while ensuring that the country's increasingly important corporate sector had access to the encryption tools it needed for operating globally? An article in the FT provides us with the answer (paywall). In recent months, international companies and organizations have found their VPNs blocked more frequently:

If you've been napping, Comcast lobbyists recently convinced the government to kill net neutrality rules, dismantle broadband privacy protections, and bury efforts to make the cable box market more competitive. And they're just getting warmed up. Comcast lobbyists have also successfully convinced the Trump administration to eliminate nearly all state and federal oversight of large telecom monopolies. Should they be successful, consumers and innovators will face a massive new era of little to no accountability for one of the most despised, least-competitive business sectors in America.This new wave of regulatory capture comes at an inopportune time for American consumers and the nation's startups. Comcast was already facing less broadband competition than ever in many markets thanks to incumbent telcos effectively giving up on upgrading millions of aging DSL lines. With neither government oversight nor healthy competition present to keep Comcast in check, the company's awful customer service has become legend, and the rise of arbitrary, unnecessary fees and usage caps have become the norm.As an added bonus for Comcast, the conditions applied to the company's 2011 merger with NBC just expired over the weekend, raising additional concerns about the potential impact of an unshackled Comcast on the emerging streaming video market. Those conditions prohibited Comcast from charging streaming competitors unfair rates, or from meddling in Hulu management to prevent disruption of Comcast's own services. They also required Comcast adhere to some aspects of the FCC's 2010 net neutrality rules, even if they were dismantled in court (they were).With the DOJ suing to block AT&T's own media megamerger, some FCC Commissioners are wondering why Comcast gets a free pass here:

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The teenage hacker who tore CIA director John Brennan a new AOL-hole is awaiting sentencing in the UK. Kane Gamble, the apparent founder of hacker collective Crackas With Attitude, was able to access classified documents Brennan has forwarded to his personal email account by posing as a Verizon tech. Social engineering is still the best hacking tool. It's something anyone anywhere can do. If you do it well, a whole host of supposedly-secured information can be had, thanks to multiple entities relying on the same personal identifiers to "verify" the social engineer they're talking to is the person who owns accounts they're granting access to.Despite claiming he was motivated by American injustices perpetrated around the world (Palestine is namechecked in the teen's multiple mini-manifestos), a lot of what Gamble participated in was plain, old fashioned harassment.

In the wake of the federal repeal of net neutrality rules, numerous states have responded by proposing their own net neutrality rules that either mirror the FCC's discarded rules, or impose new restrictions on net neutrality violating ISPs trying to secure state telecom contracts. New York, Massachusetts, Washington and California are among a dozen states considering their own rules. These efforts come despite the fact that Comcast and Verizon successfully lobbied the FCC to include provisions trying to ban states from protecting consumers in the wake of federal apathy on the subject.Unwilling to run the legislative gauntlet, Montana has taken a shortcut. Montana Governor Steve Bullock has signed an executive order banning ISPs from being able to secure state contracts if they violate net neutrality. Bullock on Twitter proclaimed that the state's future depended on the internet, well, actually working properly:

Hot-button topic "fake news" is going to be the downfall of the internet. All over the world, governments are trying to tackle the non-issue by introducing harmful legislation that will only result in increased direct control of the press by the governments passing these bills. "Fake news" defies definition. It could be read to encompass satire and parody. It could also cover legitimate news that deals with subject matter certain people don't like. That's pretty much how it's been defined by the party in power here: whatever Donald Trump doesn't like is deemed "fake news" by the Commander in Chief, even if the news is based on factual events and credible statements.Allowing the government to get in the speech business is a bad idea. All "solutions" proposed by world government officials are vehicles for abuse by the state -- a way to suppress anything that doesn't align with the party in power's narrative. On a smaller scale, it also creates a handy heckler's veto for social media platforms, putting brigades a click away from shouting down stuff they don't like.In Brazil, fake news is under attack… and in the worst way possible. Governments nudging media platforms and press agencies towards self-censorship is one thing. Handing this over to men with guns is another.

The last time that Techdirt wrote about Tunisia was back in 2011, when the Internet helped bring about a major regime change there. Although violent protests against the government have flared up recently, in general, the processes that are being applied to shift national policies in Tunisia are both peaceful and successful. Here, for example, is some good news from Access Now on the privacy front:

We see all kinds of crazy copyright disputes and lawsuits around here. It is, after all, kind of our thing. Still, occasionally you come across a copyright lawsuit so completely head-scratching as to make you question reality. Thus is the case with the lawsuit Crytek filed against CIG, makers of the long-anticipated Star Citzen game, for both breaking a licensing agreement between both parties and copyright infringement. Strangely, if you read the complaint, all of this centers around CIG choosing not to use the Crytek engine.

Shortly after Trump was elected I wrote a post predicting how things might unfold on the tech policy front with the incoming administration. It seems worth taking stock, now almost a year into it, to see how those predictions may have played out.Most of this post will track the way the issues were broken down last time. But it is first worth commenting how in one significant overarching way last year's post does not hold up: it presumed, even if only naively in the face of evidence already suggesting otherwise, that the Trump administration would function with the competency and coherence that presidential administrations have generally functioned with in order to function at all, let alone effectively enough to drive forth a set of preferred policy positions. There seems to be growing consensus that this presumption was and remains unsound.Furthermore, the normal sort of political considerations that traditionally have both animated and limited presidential policy advocacy do not seem applicable to this presidency. As a result, conventional political wisdom in other areas of government also now seems to be changing, as the rest of the political order reacts to what Trump actually has done in his year as President and prepares for the next major round of elections in 2018.Free speech/copyright – For better or for worse, the Trump administration does not seem to be particularly interested in copyright policy, but it has nonetheless had an effect on it. The denial of the cert petition in Lenz following a strange brief from the Trump Administration's Solicitor General and the appointment of Justice Gorsuch will leave a mark, as without teeth being put back into the DMCA to deter abusive takedown notices, content will still be vulnerable to illegitimate takedown demands of all sorts of speech, including political speech. If there's one thing the Trump administration has accomplished it has been to make people much more politically aware, and we've already seen instances of people using the DMCA's notice and takedown system to try to suppress speech they don't like. To be fair, we've seen people of all political persuasions do this, but the concern is heightened when the views of those who already have power to suppress the views of those that do not. (Note also: it is not clear that a Clinton Solicitor General would have written an any more solicitous brief in support of Lenz, or that a justice other than Gorsuch would have changed the cert vote. Plenty of Democratic appointees have been disappointing on the copyright front. However, it is a policy result that is directly due to the new administration.)More interestingly, however, is the impact on future copyright policy (and, indeed, lots of other tech policy) caused by the political toll the Trump administration has been having on the GOP. The impending retirements of Reps. Goodlatte and Issa, for instance, will lose the tempering influence they have sometimes had on some of the worst copyright policy pushes.On the speech front, however, it looks like all the worry about the Trump administration last year has been born out. From Trump's frequent and overt diminishment of a free and independent media, to his constant legal threats to sue critics, to his administration's outright abuse of power to try to unmask them – and more – the Trump presidency tends to be an extremely cogent example of why it is so critically important to protect the right of free speech from government incursion.Mass surveillance/encryption – This issue is always a mess, but now it's a mess in new ways that have realigned some of the political leanings, which may create opportunity but also creates new reasons for concern.In litigation challenging digital surveillance the details of the surveillance obviously matter: what government authority is trying to do what, to whom, and under what statutory authority all affects the judicial inquiry. But in some ways none of these details matter: the essential question underpinning all these cases is what a state actor can constitutionally do to invade the privacy of its people. Whether the state actor is wearing an FBI hat, a CIA hat, an NSA one, a local police one, or some other official hat doesn't really matter to the person whose private dealings are now exposed to government review. But President Trump's unpopularity, petulance, and track record of threatened, if not actual, attacks on his political enemies should make it easy to see the problem with giving the government too much surveillance power since it means giving someone like him that much surveillance power. His attempts to increasingly politicize our various investigatory agencies further drives home this point because the more government surveillance is politicized, the people with opposing viewpoints will be hurt by those with political power able to wield this surveillance power against them.On the other hand, there are serious allegations of wrongdoing by Trump, his family, and his associates, including allegations that raise serious national security concerns, and it is only because of the work of many of these investigatory agencies that these allegations stand any chance of being uncovered and appropriately prosecuted. And as a result, many who should be fearing the power of these investigatory agencies, simply because as state actors their behavior always needs to be subject to check, are now suddenly feeling quite cheerful about enabling these agencies and enhancing their power, even where the Constitution should forbid it.Figuring out how to empower police in a way that protects our democracy without undermining the civil liberties that also protect our democracy requires a careful, nuanced conversation. Yet it's not one that we are having or seem likely to have under this administration. But if these agencies do become politicized as a result of Trump's presidency, it may then be too late to have it.Net neutrality/intermediary immunity – Things are bad on both these fronts, although the impact of the Trump administration is different on each.With regard to the former topic, the elevation of Chairman Pai by Trump opened the door to the most direct and obvious incursion on Net Neutrality protection. There's no point in dwelling on it here; read any of the many other posts here to see why. While it is possible that any Republican president would have made a similar appointment, a Democratic president would likely have made an appointment resulting in a different balance of power among the FCC commissioners. But there is also something rather Trumpian about Pai's move as well, the choice to govern by brute force rather than consensus, and it is also possible that a more politically-attuned Republican administration would have encouraged its appointee to have used a lighter hand in setting policy, particularly in light of significant opposition against this particular move, including from both sides of the aisle.On the intermediary immunity front Section 230 is under heavy attack. Fortunately the Trump administration itself does not seem to be directly stoking the legislative fires; some of the most significant attacks on Section 230 have largely been instigated by Democrats (although with some bipartisan support). In general the Democrats appear to be a party whose political fortunes are on the rise due to Trump's unpopularity and resulting GOP incumbent retirements, including (as discussed above) some who have historically been helpful on the tech policy front. Although there are some outstanding Democrats on these sorts of issues (i.e., Wyden, Lofgren) tech policy has not often followed standard red-blue party lines, and a legislative switch back to blue overall will not necessarily lead to better policy on these issues overall as well.Especially not when the Trump administration has in many ways been inspiring the attacks on platforms. It has become easy, for instance, for people to fault social media for his rise and for some of the worst things about his presidency (e.g., provoking North Korea on Twitter). As with mass surveillance Trump's unpopularity is tempting many to see as palatable any policy they think might temper him. Unfortunately, like with mass surveillance, this belief that a policy might have this tempering quality is often wrong. For the same reason that Trump is Exhibit A for why we should not do anything to enhance government surveillance power, it is also Exhibit A for why we should not do anything to undermine free speech, including online free speech, which these legislative attacks on platforms only invite.Internet governance – Trump has been a disaster on the foreign policy front, measurably lowering the esteem of America in the eyes of the world. True, as discussed last year, by abandoning the TPP he spared us the harm to the important liberty interests the TPP would have imposed, but in nearly every other way he has undermined those same interests by making it more tempting and politically easier for other countries to try to set policy that will affect how everyone, including Americans, gets to use the Internet.What I wrote last time remains apt:

We've been given six more years of Section 702 collections, thanks to many, many Congressional representatives who just couldn't find it in their hearts to tell the dear old NSA "No." An extension was granted to push the "debate" into 2018, but there was no debate to be had. Instead, oversight committees on both sides of the Congressional aisle used this time to push out zero-reform renewal packages that actually made Section 702 worse.After a brief, two-week consideration of opposing views, things moved ahead as though the program had never been abused by the NSA and had never "inadvertently" swept up US persons' communications without a warrant. The same politicians who complained about the NSA's power being in the hands of Donald Trump were the ones who voted for the passage of "reform" bills increasing the agency's reach and grasp.Now, Congressional reps are granting the Trump Administration even greater control of US spy powers. The House spending bill contains an alteration to the language covering the Intelligence Community's use of federal funds. The funding of surveillance programs is already secret. The NSA's infamous "black budget" makes it impossible for citizens to see how -- and how much -- money is being spent spying on the world.But the book isn't closed to everybody. If the agency or the administration wants to shift funding around, it must first inform Congress. This theoretically gives Congress veto power on spending changes Congress hasn't pre-approved. The disclosures are, of course, done in secret and there's no way to know how often Congress blocks spending changes, but at least it's some form of oversight. That will no longer be the case if the spending bill is approved, as Ryan Grim reports for The Intercept.

As Techdirt readers are well aware, China is rapidly growing more powerful, both economically and politically. Its economic rise has been clear enough for some time, not least in its technological prowess. Its political might, however, has only recently become more evident, as it begins to assert itself in various ways around the world. China's sense of its own power, and its increasing impatience with anyone that dares to go against it, is nicely illustrated in a recent incident. It concerns a drop-down menu and a like on a tweet, both belonging to the "global lodging company" Marriott International, which issued the following corporate statement a few days ago:

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The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.Despite angering multiple judges with its inability to follow simple court orders, the NSA is back in front of a judge trying to explain why it has failed yet again to retain data relevant to the Jewel case.

You might recall that a few years ago the FCC under Tom Wheeler bumped the standard definition of broadband to 25 Mbps downstream, 3 Mbps upstream. This greatly upset the broadband industry (and the numerous lawmakers and policy flacks paid to love them) because it highlighted a lack of broadband competition and deployment. That's especially true at higher speeds, where two-thirds of the U.S. lacks access to more than one ISP at that speed.But recently, the FCC under industry BFF Ajit Pai began playing around with the idea of weakening this definition. Under Pai's plan, the FCC would have declared that 10 Mbps down, 1 Mbps up wireless also counts as "broadband competition," letting the industry effectively say "mission accomplished." The problem is that wireless is often more expensive, capped (especially in rural areas), and inconsistently available (carrier coverage maps are notoriously unreliable).Fortunately, the FCC last week stated that for some, unspecified reason they'd be backing away from the plan. Section 706 of the Telecommunications Act of 1996 requires the FCC to continually assess whether broadband is being deployed on a "reasonable and timely basis," and if not -- to do something about it. While the FCC hasn't released its full assessment yet, Pai ponied up a statement (pdf) last week that makes it clear that Pai believes everything is going swimmingly in the broadband market, thanks largely to his frontal assault on consumer protections like net neutrality:

A long report by Human Rights Watch delves into the secretive world behind the evidence given in criminal cases. Multiple law enforcement entities are making use of DEA tips to build cases and secure convictions, but they're burying the original evidence using parallel construction, whitewashing it of possible Fourth Amendment violations.Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full access to domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of "new" criminal investigations.The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs -- up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them.Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence.

This week, our first place winner on the insightful side came in response to the UK's absurd cartoon-based IP education program for kids. PaulT offered some interesting additional perspective on "Nancy and the Meerkats":

Five Years AgoThis week in 2013, we were shook by the sad news of Aaron Swartz's death. Through the week, we looked at the actions of prosecutors and investigators and the fact that in the US "anyone interesting is a felon", and at all the other crimes that would have resulted in less jail time than Swartz was facing. But we also looked at what we should learn from him moving forward, about how to build up instead of tearing down, and how "content" can't be the end-game of knowledge, and we watched as researchers posted their work online for free in tribute.Ten Years AgoThis week in 2008, while NBC Universal was arguing in favor of ISP filtering and copy protection tech, the recording industry was kinda-sorta getting over its obsession with DRM — and moving to other stupid ideas like digital watermarks and annoying anti-piracy voiceovers on review copies instead. The DMCA was being abused to go after bad reviews, the EFF was making the argument that "making available" is not infringement, and J.K. Rowling was trying to block a third-party Harry Potter guidebook — and amidst this we noted that it seems like most people don't actually know what copyright is for.Fifteen Years AgoThis week in 2003, some people thought it looked like Hollywood's copyright control was loosening a little, but we weren't so optimistic. Indeed, that very week the Supreme Court upheld retroactive copyright extension in the Eldred ruling despite Lawrence Lessig's best efforts (though there was potentially some silver lining). The music and tech industries announced a rather worrying policy agreement that would see the latter stop fighting for user rights in exchange for the former dropping its calls for mandatory hardware-level DRM, though the agreement ended up being largely meaningless and, of course, was completely spurned by the MPAA. Meanwhile those movie studios were being strangled by their own IP obsession while trying to navigate the licensing thicket to get older movies online.

While we cover much here in terms of content creators actually embracing what the internet can do for them rather than fighting what is essentially mere reality, some stories truly do stand out more than others. If you aren't familiar with the story of the film The Man From Earth, you should read up on it because it's plainly fascinating. The sci-fi film was directed by Richard Schenkman on a fairly barebones budget and set for the sort of release that these types of independent films tend to get.And then somebody put a screener DVD up on The Pirate Bay and the film became known in a way it never would have otherwise.

While we cover much here in terms of content creators actually embracing what the internet can do for them rather than fighting what is essentially mere reality, some stories truly do stand out more than others. If you aren't familiar with the story of the film The Man From Earth, you should read up on it because it's plainly fascinating. The sci-fi film was directed by Richard Schenkman on a fairly barebones budget and set for the sort of release that these types of independent films tend to get.And then somebody put a screener DVD up on The Pirate Bay and the film became known in a way it never would have otherwise.

Dashcams -- unlike body cameras -- have been around for years. So while it might be understandable an officer could forget his actions are being documented by his new-ish body camera-- say, when he heads into an alley to plant evidence -- it's difficult to draw the same conclusion when an officer apparently forgets his dashcam is recording his bogus traffic stop.In a criminal case resulting in suppressed evidence, Officer William Davis of the Dayton (OH) Police seems to have done exactly that. His bogus traffic stop resulted in the discovery of marijuana and a firearm, but none of that matters now. What was captured by his cruiser's dashcam undercut his assertions and sworn testimony. That has lead to an Ohio appeals court's memorable decision, in which it's declared the lower court was correct to rely on dashcam footage -- rather than the officer's testimony -- when the two narratives diverged. (via FourthAmendment.com)On a dark, rainy night Officer Davis and Officer Bryan Camden were speeding down a street when a vehicle pulled out in front of them. (Literally speeding: speed limit was 35 mph. Despite the adverse driving conditions, the cruiser was travelling at 43 mph.) Apparently miffed he had to ease back to the posted speed limit, Officer Davis (with Camden's help) began to compose an alternate reality in which a traffic violation had occurred. The problem for the state -- which hoped to retain the evidence obtained during the resulting traffic stop -- is the entire thing was caught on camera. This included the officers' retcon of events in progress. From the decision [PDF]:

For many, many years we've talked about how people were wrong to say that the internet "cut out middlemen" because there are still plenty of middlemen around. Instead, what was important was that the type of middlemen were changing. Specifically, we were moving from an age of gatekeepers to an age of enablers. And the difference here is profound. Gatekeepers keep out most people who want to use their platforms. Think: record labels or movie studios. Most people who wanted to become musicians just a couple of decades ago were not able to. Record labels would not sign them, and without a recording deal, your chance of making any money was just about nil. A few people were signed, a very few of those that signed would make lots of money, the rest would make a little money, and everyone who didn't sign would make basically nothing. The "curve" of how much money people made trying to become musicians was not very smooth. You had a few at the top end, and a giant cliff down to basically zero if you couldn't get past the gatekeeper.But the internet changed that in a massive way. Anyone could start using the various internet platforms to release their content, to build an audience, and to make some money. There remain complaints from some that the amount most users make isn't very much, but that ignores that under the previous gatekeeper system, that amount was almost certainly zero for the vast majority of people who wished to make money from their creative endeavors. With various internet services -- Kickstarter, Patreon, Spotify, YouTube, etc. -- artists could at least make more than zero.There has been some fear that yesterday's enablers would turn into tomorrow's gatekeepers. Unfortunately, one of the most disturbing aspects of what's happening with the internet these days is that more and more people seem to be pressuring these enabling services to become gatekeepers and to lock out smaller creators, out of this new fear that some people shouldn't be allowed to use these platforms to make any money at all.Case in point: YouTube has recently announced new rules around creator monetization, which basically say you need to be pretty popular before you can become a partner who can monetize your videos.

In the past, I've been a pretty big fan of Southwest Airlines. On many routes it has been my first choice for flights. However, after digging into a new lawsuit the company filed earlier this month, I'm pretty close to swearing off Southwest forever. I can't support this kind of bullshit legal bullying. First off, Southwest does have a bit of history legally bullying sites that improve the Southwest experience. Back when your seating on Southwest really depended on how close to 24 hours prior to your flight that you checked in, there were a few services that would automate checking you in at exactly the 24 hour mark, and Southwest sued to shut them down. The company has also threatened tools that merely scraped Southwest fares -- which could be kind of useful, since Southwest doesn't share its fares with popular flight info aggregators like Kayak and Expedia.It is somewhat questionable whether or not Southwest actually has a legal right to block that -- pricing info is not covered by copyright -- but there are lots of attempts these days to twist laws to argue that merely putting something in a terms of service is enough to create a legal obligation.Enter a new site: SWMonkey.com. The idea behind the site is fairly simple. Because Southwest Airlines (unlike basically every other airline) actually has no fees to change your flight, if you spot your same flight available for less, you can call Southwest and basically exchange your ticket for the new ticket and get credit for future flights (and sometimes even cash back). Southwest, of course, relies heavily on the idea that not many people take advantage of this. SWMonkey's clever idea was to monitor price changes for you, and alert you if the price on your flight dropped significantly. The site charged a $3 fee if it could save you $10 or more.The site launched in November and Southwest sent a fairly obnoxious cease and desist letter to SWMonkey almost immediately after it launched. The crux of the cease and desist was that what they were doing was trademark infringement.

While we were just discussing Judge Zilly in California smacking around one of the front-attorneys for a shell-company of the infamous Guardaley company (which pretends to be able to detect copyright infringement from Germany) another case was working its way through the courts. Judge Zilly focused his efforts on just how little evidence there is for the actual existence of many of the shell and parent companies that show up with Guardaley evidence, as well as whether or not Guardaley's "experts" even actually "exist." This other case in Oregon seems to have pointed out that yet another Guardaley front company can't even get the basics of standing in copyright law right and may well have tried to fool the court into thinking it had standing when it didn't.This case concerns a company called Fathers & Daughters Nevada, LLC, which sued Lingfu Zhang for pirating the film Fathers & Daughters using bittorrent technology. The problem that resulted in Judge Michael Simon issuing a summary judgement dismissing the case with prejudice is that F&D Nevada doesn't actually have the copyrights in question, having signed it all away to a third party.

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Back in November, we wrote about a fairly crazy case in which Playboy Enterprises was suing the blog Boing Boing for copyright infringement, over a post by Xeni Jardin, linking to a collection of all Playboy centerfold images on Imgur (and a video version on YouTube). As we wrote in our post, this seemed like a very strange hill for Playboy to die on, given that Boing Boing clearly did not post the images, but merely linked to them, meaning that it was pretty clearly not infringement. There were some really strange arguments in the complaint, and the initial reporting on it that we saw was really bad -- falsely claiming the lawsuit said that Boing Boing "stole every centerfold ever." But, of course, there was no stealing at all. Just linking.Boing Boing has now responded to the lawsuit, with help from EFF and top notch lawyers Mark Lemley and Joe Gratz from the law firm of Durie Tangri. The motion to dismiss is pretty thorough and well argued (no surprise), explaining why the case should be tossed out, because even if everything Playboy argued is true, Boing Boing has not committed any copyright infringement at all in merely linking. The MTD doesn't pull any punches:

By now Apple's app-store approval process is legendary for being completely untethered from anything even vaguely resembling consistency, accountability, or transparency. App makers can often find their passion projects banned for no coherent reason whatsoever, or because the app in question competes with Apple's own offerings. The process of complaining is traditionally semi-Sisyphean, with Apple often refusing to adequately explain their decisions. And it's inconsistent; banned apps and games can often reappear with no concrete explanation as well.The latest case in point: David Coffnes, a researcher at Northeastern University, recently built an app named Wehe to help broadband users test their connections for possible throttling or net neutrality violations. But the app in question was banned by Apple for no coherent reason, the company simply telling Coffnes that his app "has no direct benefits to the user," and contained "objectionable content," neither of which is true:

Several years ago, a music industry transplant into Parliament, Mike Weatherley, made a glorious push to get the government to invade primary schools in the country to teach them that piracy is the worst thing in the world and intellectual property laws are super cool. Children as young as seven years old would be subjected to "educational information" provided by the government on the "proper" use of the internet. This was not the first attempt at pushing copyright propaganda on kids. In fact, we've reported on many of these, going all the way back to 2003 -- and many of the programs have been mockable, including the infamous Captain Copyright.You would think that maybe those producing this propaganda would realize that it basically always is a flop as kids are smart enough to see through it -- and that their attempts to be cool and hip tend to come off as insane. But... the UK has pushed forward with this plan, and you have no fucking idea how insane it actually is.

In the early part of 2017, we brought you the story of an Iowa State University student group pushing for marijuana reform in the state that was being targeted by the university for trademark infringement after the group used some school iconography on t-shirts it developed for its cause. The whole episode was fairly bonkers, with the school initially approving the students' use of the imagery, only to rescind that approval after Iowa House Republicans sent a letter to the school's leadership questioning the decision. That sort of infringement of speech by a school and, in the background, by state legislators that really should have known better, was always destined to result in legal proceedings, given the enormous First Amendment implications. Well, as we reported, that trial ran its course, including an appeal, and was decided in the favor of the student group.While all of that was settled last year, what we didn't know until recently is just how much taxpayer money would be paid out as a result of a public university and state legislators seeking, quite plainly, to infringe on perhaps the most sacred right this country enjoys. Now we have an answer to that question: at least $350,000.