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Thought the monkey selfie saga was over? I'm beginning to think that it will never, ever, be over. If you're unfamliar with the story, there are too many twists and turns to recount here, but just go down the rabbit hole (monkey hole?) of our monkey selfie tag. Last we'd heard, PETA and photographer David Slater were trying to settle PETA's totally insane lawsuit -- but were trying to do so in an immensely troubling way, where the initial district court ruling saying, clearly, that monkeys don't get a copyright would get deleted. Not everyone was comfortable with this settlement and some concerns have been brought before the court. As of writing this, the court seems to be sitting on the matter.We knew exactly why PETA didn't want its big loss to remain on the books, but it initially appeared that Slater was more neutral. However, he's now claiming that he's preparing to sue Wikipedia -- in which case having the earlier ruling off the books (where it makes it clear that a monkey can't get a copyright) would probably be helpful. This bit of news about a planned Wikipedia lawsuit was a throwaway line in... well... a pretty bad episode of This American Life, which takes on the monkey selfie story, but does a surprisingly awful job of it. I'm a huge fan of This American Life, and in the past when they've done stories where I'm intimately familiar with the details, I think they've done a really excellent job.But, on this story, TAL falls flat on its face. It presents the story of David Slater mostly through his own telling of it, and frames Wikipedia declaring the image to be in the public domain to be a fairly radical position. I'm actually surprised that TAL didn't talk to a copyright lawyer about this (they quote Slater's lawyer, but specifically on questions related to PETA's case -- and not the copyright status of the image). Indeed, I'm surprised that the reporter, Dana Chivvis, didn't appear to speak to anyone at Wikipedia itself. She kicks off the discussion of Wikipedia's role in the monkey selfie case with this bit of utter nonsense that does not reflect Wikipedia's view at all:

Given that the Trump administration has been tripping over itself to obliterate popular consumer protections (net neutrality, broadband privacy) and most media consolidation rules (largely to benefit Sinclair broadcasting), many analysts assumed that the administration would see absolutely no problem with AT&T's latest $86 billion acquisition of Time Warner. After all, such vertical integration mergers -- while they can cause very serious market harms -- are often more difficult to make a case for than mergers where direct competitors are eliminated.Supporting that position was the fact that Makan Delrahim, Trump's new antitrust boss at the DOJ, had been on record previously stating that he saw no serious problems with the deal. That's why it was a bit of a surprise last week when reports emerged that Trump's DOJ was considering a lawsuit to block the megamerger, and may not approve the deal unless AT&T either sold off DirecTV (acquired last year) or Turner Broadcasting, owner of channels like Cartoon Network, TBS, and CNN.Given Trump's disdain for CNN's coverage of his Presidency, many began to immediately speculate that Trump was using the merger for leverage. After all, that's what one administration official told the New York Times was on the table in a story back in July:

More irresponsible handling of documents has been uncovered by public records requests. Information you'd think the government would actually want to hang onto has apparently been deleted by those charged with retaining it.

Why Chicago's Police Force Is A Godawful Train Wreck, Part 192: A Staggering Lack of Accountability.

Reading our coverage of Rozcomnadzor, the Russian government agency tasked with keeping the internet clean of piracy, you would know that the agency has a laughably bad track record for pretty much everything. Even as ranking members of the agency have been embroiled in a corruption scandal in which they bilked Russian taxpayers by creating fake employees, the statistics out on Rozcomnadzor's ability to carry out its stated mission -- blocking sites used for piracy on the internet -- are horrendous. Put simply, the agency has managed to take down 4,000 "pirate" sites through legal cluster bombs that have inflicted 41,000 sites worth of collateral damage. Any honest look at those kinds of numbers would lead a sincere government to seriously consider whether such an agency was worthy of existence at all.The Russian government, on the other hand, has decided to expand Rozcomnadzor's powers by essentially nixing anything that would even remotely look like due process. The new proposal being considered by the Russian Ministry of Culture is severe, to say the least.

One more thing we can give Ed Snowden credit for: the possibility we may be seeing even more public access to FISA court opinions and other FISA docs in the future. [h/t Mike Scarcella]There's still a long way to go procedurally, but this latest ruling from the FISA court will allow a First Amendment lawsuit by the ACLU and the Yale Law School Media Freedom and Information Access Clinic to move forward. Being granted the standing to actually challenge government surveillance is a rarity. The cover of national security darkness has prevented many plaintiffs from being able to allege harm, but the Snowden leaks have provided many public entities the information they need to shore up these allegations.The FISA court review process behind this opinion is itself a unicorn: it's an en banc review of the plaintiffs' challenge -- the first time this has ever happened in the history of the court. The opinion [PDF] notes the rarity of the occasion as well as acknowledges the significant "standing" hurdle the plaintiffs were facing.

We've been talking about the Trans Pacific Partnership (TPP) agreement for many, many years. And one point that we've made over and over again about the TPP and other trade agreements, is that there actually is a lot of good and important stuff in those agreements, and we don't understand why the US (mainly) keeps insisting on two issues that don't belong in these agreements at all: (1) "intellectual property" chapters, which are almost always the opposite of "free trade" in that they focus on ratcheting up government protectionism and monopolies for a few specific industries and (2) a section on what we refer to as corporate sovereignty, which which the trade world calls "investor state dispute settlement" or "ISDS." That's where companies can demand an private tribunal judge if a country unfairly treated that company poorly and order the country to pay the company millions or sometimes billions of dollars.Of course, the US has been a major driver of both of those provisions -- but over and over again we were told that these kinds of agreements were "impossible" without an intellectual property chapter and corporate sovereignty. Turns out, once you get the US out of the way, things aren't so impossible. Just a couple weeks ago, we noted that many countries around the world (including the new USTR, Robert Lighthizer) appear to be souring on corporate sovereignty provisions, but the really big news is the TPP.Right after Donald Trump became President, the US officially dropped out of the TPP negotiations, leading many to believe that the entire process was dead. Instead, the other countries have continued to negotiate, and on Friday agreed in principle on key aspects of a deal, for the newly renamed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)One of the stumbling blocks, on which Canada allegedly played hardball, was removing much of the intellectual property chapter (including basically all of the really bad stuff). As Michael Geist notes:

Deputy Attorney General Rod Rosenstein has taken a brief vacation from his "Responsible Encryption World Tour" to defend the merits of something equally questionable: civil asset forfeiture. [h/t Meaghan Ybos]As is the case with any article defending the practice of taking "guilty" stuff from people without even bothering to determine whether the people were actually guilty of anything, Rosenstein's WSJ editorial glosses over the thousands of abuses to home in on a high profile case: the prosecution of Bernie Madoff.

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Last month, I had two blog posts about a particularly insane lawsuit being pushed by the Justice Department against a computer security researcher, Justin Shafer. As we explained, the arrest and prosecution of Shafer appeared to be the result of a truly ridiculous vendetta against Shafer by the FBI because Shafer got angry over a previous (and totally misguided) decision to raid his home, after he properly disclosed security problems involving some dental practice software. It seems clear that Shafer never should have been arrested (and never should have had the FBI raid his house three times over just a few months). Of course, what first brought the case to my attention was an even more ridiculous part of the story, in which the DOJ had sent a subpoena to Twitter demanding basically all info on five Twitter users -- even though two of them don't hide their identity -- because Shafer tweeted a smiley emoji at them.That story is even more insane than it sounds, but I'm not going to repeat the details here -- I'll just repeat: the case involved the DOJ demanding the identity (and more) of five Twitter users because someone else (who they're railroading over bogus charges) sent a smiley emoji to them on Twitter where they were discussing a different lawsuit altogether.We now have two updates on that story: (1) Shafer is appealing the fact that he's still in jail, months later and (2) the DOJ has refused to withdraw the emoji subpoena. Yes. You read that right. The DOJ is doubling down, demanding the identity (and more) of Twitter users because someone they never should have arrested, sent a smiley emoji to them. We can cover that second point first because there's not much more to say beyond"What the fuck is wrong with the DOJ?" As you may recall, the five Twitter users whose info was sought by the subpoena included @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). Ken White and Keith Lee are both known (and each has blogged about the situation). The rest are at least partially pseudonymous. Dissent Doe, for one, has strong reasons for retaining anonymity, given her focus on data breaches and privacy issues. She revealed the DOJ's stunning decision to keep going over the weekend, noting that she now needs to fight the subpoena in court.

Shortly after the horrific shooting of 26 people in a Texas church, the FBI began dropping hints about its inability to access the contents of the shooter's phone. Things didn't go the FBI's way the last time it tried to access a phone's contents following a mass shooting. It was unable to force Apple to break its own encryption and failed to obtain a judicial precedent it could wield against other manufacturers. In the end, the FBI ended up out a large sum of cash in exchange for access to phone contents that ultimately proved worthless.These rumblings follow the DOJ's push for "responsible encryption" -- a mythical beast composed of "strong" encryption that can be broken at the drop of warrant. This is the FBI hinting it's interested in taking a second swing at obtaining a pro-encryption breaking courtroom decision. What the FBI won't do is offer any details on the shooter's phone itself.

"Better than nothing" appears to be the motto of the House of Representatives' attempt to implement Section 702 reforms before the end of the year. The USA Liberty Act was introduced in October, bringing with it a few minor alterations to the NSA's collection efforts. Perhaps the best thing about the bill was its codification of the NSA's retirement of its "about" email collection. This would prevent the NSA from restarting a collection responsible for the greatest "incidental" harvesting of domestic communications (that we know of).It also would expand reporting requirements for agencies making use of Section 702 collections as well as extend whistleblower protections to government contractors. Unfortunately, the bill does not close the loophole allowing "backdoor" searches of domestic communications collected by the program.Beyond that, Section 702 stays pretty much intact. It's better than leaving it unaltered, but it's far less comprehensive (in terms of reforms) than the option introduced in the Senate by Ron Wyden. Unfortunately, the Senate is far more likely to pass the zero reform effort offered by the NSA's oversight -- one that allows the NSA to restart its "about" collection, as well as expand the number of criminal activities that will justify backdoor searches of NSA data stores. That's the bill that's already advanced, according to David Ruiz of the EFF, who brings more bad tidings along with this news.

This week, in response to our post about Playboy suing BoingBoing for linking to a collection of centerfold pictures, one commenter suggested they should have known they crossed a "proverbial line in the sand" that would draw legal attention, leading an anonymous responder to win first place on the insightful side by pointing out why that, in and of itself, is the problem:

Five Years AgoThis week in 2012, while Twitter was improving its DMCA policy, YouTube copyright claims managed to take down a viral video of a 9-year-old football star and, of course, a video all about fair use and remix culture, just as noted asshole Craig Brittain was launching his DMCA abuse strategy with Popehat in the crosshairs. And the Harry Fox Agency somehow managed to claim copyright over 164-year-old Johann Strauss music, while shortsighted publishers managed to extract a hefty ruling against lyric websites.Ten Years AgoThis week in 2007, the huge Writers' Guild strike began, causing all kinds of ripple effects in Hollywood, though not interfering with the Senate's attempts to turn the DOJ into Hollywood's police force. The entertainment industry was really figuring out how to use DRM and the DMCA to stifle innovation by shutting down a DVD jukebox, even as Blu-Ray DRM was being rapidly cracked and other DRM was turning up security holes — not to mention MLB screwing over a bunch of fans who purchased content by changing their DRM scheme and making that content disappear.Fifteen Years AgoThis week in 2002 was pretty much exactly the same on the DRM front, with BMG striving to copy-protect all CDs sold in Europe and EMI taking a similar attitude, while two of the biggest names in copy protection technology were merging to join forces in the futile fight, I suppose not listening to the computer scientists pointing out that CD copy protection is worthless But what else could the music industry do? Online CD sales were falling, and who could they possibly blame but pirates?

Just last week we discussed the alarming trend in media companies for putting in place restrictive social media policies for their employees, including their opinion commentators. In that post, we focused on how this move is both dumb and bad for two reasons. First, restricting the opinions of those followed by the public for their opinions is flatly nonsensical. Second, the goal of these policies -- to have the public view companies as non-partisan -- is simply a fantasy in these hyper-partisan times. Nobody is going to decide that the New York Times or Wall Street Journal are suddenly bastions of non-partisanship simply because either muzzled its staff.But there is another negative consequence of these policies that the original post didn't touch: it paints a target on the backs of the employees it governs. Because of, again, hyper-partisanship that has reached true trolling levels, these social media policies will be wielded like a cudgel by every trollish dissenter that doesn't like a particular media outlet. The New York Times, for example, is already having to endure this.

You may recall that Sega released its title Sonic Mania earlier this year, without bothering to inform anyone that the game came laden with Denuvo DRM and an always-online requirement. While Sega eventually patched the always-online requirement out, Denuvo remained, as did a hefty number of viciously negative Steam reviews from gamers that couldn't play the game as they intended or who were simply pissed off that DRM like Denuvo was included without mention to the public.Well, Sega just released another game, Sonic Forces, and once again the complaints are rolling in. This time, however, gamers are blaming Denuvo for flat out breaking the game completely.

We have been talking a lot lately about how important Section 230 is for enabling innovation and fostering online speech, and, especially as Congress now flirts with erasing its benefits, how fortuitous it was that Congress ever put it on the books in the first place.But passing the law was only the first step: for it to have meaningful benefit, courts needed to interpret it in a way that allowed for it to have its protective effect on Internet platforms. Zeran v. America Online was one of the first cases to test the bounds of Section 230's protection, and the first to find that protection robust. Had the court decided otherwise, we likely would not have seen the benefits the statute has since then afforded.This Sunday the decision in Zeran turns 20 years old, and to mark the occasion Eric Goldman and Jeff Kosseff have gathered together more than 20 essays from Internet lawyers and scholars reflecting on the case, the statute, and all of its effects. I have an essay there, "The First Hard Case: ‘Zeran v. AOL’ and What It Can Teach Us About Today’s Hard Cases," as do many other advocates, including lawyers involved with the original case. Even people who are not fans of Section 230 and its legacy are represented. All of these pieces are worth reading and considering, especially by anyone interested in setting policy around these issues.

So much of the debate about SESTA has focused on three companies: Backpage, Facebook and Google. The focus on Backpage was because it's the go to example for why some claim this bill is needed (even though Congress passed another law two years ago to target Backpage, and that law has never been used, and even though there's already a federal grand jury investigating Backpage and there's nothing that stops the DOJ from going after Backpage under federal law). The focus on Facebook and Google is a bit more nebulous, but could be summed up as: "those companies are too big and should do more to stop bad stuff happening online." There's a pretty easy path from "Section 230 of the Communications Decency Act says internet platforms aren't responsible for what their users do" to "we need them to be more responsible" to "let's amend CDA 230." This line of thinking is problematic for any number of reasons that we've already discussed, so I won't go over them again now.But, as we've tried to explain, SESTA doesn't just impact Backpage, Facebook and Google. Indeed, Facebook and Google are uniquely positioned to handle the burdens (bogus takedowns, trollish threats, baseless litigation) enabled by SESTA. We've already shown how SESTA leaves small sites like our own at tremendous risk (and we're still waiting for anyone -- but especially the bill's authors -- to explain how we avoid that risk), but lots and lots of other sites will be impacted as well.Take Wikipedia for example. The Wikimedia Foundation has published an excellent article describing how Wikipedia only exists because of CDA 230 and how it creates the space for a site driven entirely by its userbase to exist. More importantly, the article, by Wikimedia's Leighanna Mixter, details three ways in which SESTA puts Wikipedia at serious risk by upsetting the careful balance created by CDA 230. And here's where it's important to remind people that CDA 230 actually does two things. Many of its largest critics, incorrectly, think that all CDA 230 does is give websites a free pass to ignore everything that happens on their platform. But it also encourages sites to moderate activity that they don't want on their platform by noting that they don't lose their immunity in doing some forms of moderation. It's this part of CDA 230 that gets less attention, but is potentially more important. And yet SESTA rips that apart. That leads to Wikimedia's first concern:

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Looking through the history of our posts on the topics of fair use and fair dealing, you find plenty of examples for why these exceptions to copyright law are so important. These exceptions are, at their heart, designed to be boons to the public in the form of an increased output in creative expression, educational material, and public commentary on matters of public interest by untethering the more restrictive aspects of copyright law from those efforts. Without fair use and fair dealing, copyright laws are open for use as weapons of censorship against unwanted content, rather than being used for their original purpose of increasing expression and content. Still, in the history of those posts, you might struggle to find what you would consider the perfect example of why fair use laws are necessary.Well, look no more, because we have that example in the case of the production company behind The Cosby Show suing the makers of a documentary entitled Bill Cosby: Fall of an American Icon.

By now, most Techdirt readers are well aware that net neutrality violations are just a symptom of the lack of competition specifically in the broadband industry. If we had lawmakers that were genuinely interested in policies that improve competition, we wouldn't need net neutrality rules protecting consumers from often-unchecked duopoly power. In the absence of said competition -- or lawmakers willing to stand up to AT&T, Verizon and Comcast -- the FCC's current net neutrality rules, however imperfect, are the next best thing.And to be clear, net neutrality is something specific to the uncompetitive telecom industry. Yet we've watched for years as people have tried to take the concept and apply it to other, competitive sectors. AT&T, for example, has tried to foist regulations on Google by insisting the company violates "search neutrality." Other folks, like Blackberry CEO John Chen, have similarly tried to push regulation on Google and Apple by trying to insist we need protections for "app neutrality." Usually, these folks are only interested in saddling their own competitors with additional regulation, not actually improving the internet.These folks consistently ignore the fact that this is an apples to oranges comparison. You don't need search or app store neutrality rules because those markets are actually competitive. While there are certainly some exceptions, users offended by Google or Apple's app store policies, privacy practices, or search engine behaviors have the choice of using a myriad of other services. The same can't be said of the broadband industry, where 75% of the public technically only has one choice for broadband (as defined by the FCC at 25 Mbps). These problems aren't directly comparable.And while Al Franken has been a welcome and outspoken defender of net neutrality, he too fell into this trap this week during a speech given at the Open Markets Institute, a think tank devoted to fighting monopoly power. While engaged in a well-intentioned rant warning of the perils of unchecked social media power at the likes of Facebook, Franken conflated net neutrality with, well, something else entirely:

One way of looking at the history of computing is as the story of how the engineering focus rose gradually up the stack, from the creation of the first hardware, through operating systems, and then applications, and focusing now on platform-independent Net-based services. Underneath it all, there's still the processor, even if most people don't pay much attention to it these days. Unregarded it may be, but the world of the chip continues to move on. For example, for some years now, Intel has incorporated something called the Management Engine into its chipsets:

There's an interesting article on Medium by James Bridle that's generating plenty of discussion at the moment. It has the title "Something is wrong on the internet", which is certainly true. Specifically, what the article is concerned about is the following:

Time and time again we've highlighted how in the modern era you don't really own the hardware you buy. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv.The latest example of this phenomenon is courtesy of Logitech, which annoyed consumers this week by announcing that it would be shutting down all support for the company's Harmony Link hub. Released in 2011, the Link hub provided smartphone and tablet owners the ability to use these devices as universal remotes for thousands of devices. But users over at the Logitech forums say they've been receiving e-mails informing them these devices will be effectively bricked in the new year:

Playboy apparently has lawyers with itchy trigger fingers. As first spotted by Law360, Playboy Entertainment Group has sued the BoingBoing, the popular and awesome blog that covers a variety of issues around culture and technology. The case is technically against the company that owns BoingBoing, called Happy Mutants LLC. Law360 claims the lawsuit claims that BoingBoing "stole every centerfold ever." But... that's not at all what the lawsuit says.It appears that the issue is this blog post from February of 2016, written by one of BoingBoing's core writers, Xeni Jardin. Here's a screenshot of the post from the lawsuit:As you can see, it's a blog post titled "Every Playboy Playmate Centerfold Ever." There's a very short paragraph that reads:

Oh, to be a lawyer retained by Taylor Swift™ -- free of concerns about your client's financial health or the nuances of intellectual property law. When not pursuing bogus defamation claims or targeting clear fair use cases, you can always bring the power of Swift® to bear on the unofficial adoration of the probably-not-a-white-supremacist singer's fanbase.Legal threat after legal threat sent following trademark filing after trademark filing in hopes of capturing 100% of all available SwiftDollars™. Why only collect royalties when you can submit individual lyrics from songs to the US Patent and Trademark Office to lock everyone else out of the Swift Merch Machine®?Ron Coleman -- who knows a thing or two about viable trademark registrations -- cuts to the heart of Swift's now-trademark trademark bullying. Quoting a more respectful article by Billboard, Coleman sets the stage:

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Actor/director Tommy Wiseau has, for some reason, been trying since June of this year to block the release of an unflattering documentary about his infamous 14-year-old film, The Room. Why Wiseau would be concerned about a documentary detailing the making of one of the worst films ever is beyond me, considering Wiseau's post-The Room career has generally been held together by the film's cult status as the worst film of all time, which has led to additional revenue and a number of personal appearances at screenings.Wiseau seems to want to have it all: the box office receipts from the film's cult status and a desire to be "respected" as an actor and director. These two desires are in constant competition, which is why Wiseau is now suing the director of a documentary Wiseau himself participated in making. (And why he's gone after other critics in the past using similar tactics.)The documentary, Room Full of Spoons, details the making of The Room. Up until June, Wiseau seemed relatively at peace with filmmaker Rick Harper's effort. At some point, Wiseau pulled out over "creative differences." This means Wiseau felt the documentary wasn't going to be respectful enough to its subject matter, Tommy Wiseau. Alex Ritman of The Hollywood Reporter has more details on Wiseau's exit from the documentary.

For years we've noted how large ISPs like Comcast quite literally write and buy protectionist state laws preventing towns and cities from building their own broadband networks (or striking public/private partnerships). These ISPs don't want to spend money to improve or expand service into lower ROI areas, but they don't want towns and cities to either -- since many of these networks operate on an open access model encouraging a little something known as competition. As such it's much cheaper to buy a state law and a lawmaker who'll support it -- than to actually try and give a damn.And while roughly twenty three states have passed such laws, Colorado's SB 152, co-crafted by Comcast and Centurylink in 2005, was notably unique in that it let local towns and cities hold local referendums on whether they'd like to ignore it. And over the last few years, an overwhelming number of Colorado towns and cities have voted to do so, preferring to decide local infrastructure issues for themselves instead of having lobbyists for Comcast dictate what they can or can't do in their own communities, with their own tax dollars.Yet another vote on this front was held this week in Colorado Springs. Note that the vote only opened the door to letting city voters consider building such a network, yet Comcast and Centurylink broke local spending records in their attempts to scuttle the ballot initiative. That included numerous misleading videos trying to convince locals that if they voted yes on ignoring the protectionist state laws, the city would struggle to pave roads and develop affordable housing.According to the Coloradoan, none of these efforts worked:

It's been no secret that the MPAA has been sticking its nose in the copyright laws and enforcement of Australia for some time now. From pressuring government officials in the country to force ISPs to act as copyright police, to trying to keep Australian law as stuck in antiquity as it possibly could be, to trying to force the country to enforce American intellectual property law except the parts it doesn't like, the MPAA nearly seems to think of itself as an official branch of the Australian government. Given the group's nakedly hostile stance towards fair use, it should be no surprise that it doesn't want to see that sort of law exported to other countries and has worked to actively prevent its installation Down Under.It seems these efforts are not working, however, as the Australian government is currently entertaining not only adopting American-style fair use laws, but also adding exceptions to geo-blocking as well. The MPAA, as you'll have already guessed, is not happy about this. This whole thing started with the government responding to its own Productivity Commission's report on ways to make copyright law in the country better, so as to make Australian citizens more productive.

In disturbing, but sadly unsurprising news, a law enforcement officer is being accused of killing a family pet -- one that very likely did not need to be killed. Kelli Sullivan's dog was shot by a sheriff's deputy when the deputy responded to Sullivan's call about being harassed by a neighbor. Sullivan soon learned why you're taking the lives of everyone and everything into your own hands by asking for law enforcement assistance.

Six firefighters fired over a racist incident are the possible, but unlikely, beneficiaries of Florida public records law. Here's how they ended up fired, via the Miami Herald, which broke the story. (h/t Boing Boing)

Following the Senate Commerce Committee voting SESTA out of Committee this morning, Senator Ron Wyden quickly announced that he is placing a public hold on the bill while at the same time issuing a warning about just how damaging the bill could be:

David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he's popped up in Techdirt, it's been doing really, really sketchy things. He was the lawyer for SCO in that company's insane "set open source on fire" lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists -- including us! -- for publishing stories based on those leaked emails (we told him "go pound sand.") And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn't just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.But, it turns out that Boies' activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein's legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an "army of spies" to try to trick Weinstein's accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here's just a snippet, involving one of Weinstein's most outspoken victims, Rose McGowan:

Earlier today, the Senate Commerce Committee had its markup on SESTA -- the deeply flawed bill that claims to be about stopping sex trafficking, but which will do little on that front. Instead, it will create massive problems for lots and lots of small internet sites. The bill sailed through the markup, getting approved via a voice vote with no discussion or debate. As expected, last week's decision by the Internet Association -- the trade group representing all of the large internet companies -- ensured that the bill would sail through the markup. Supporters of the bill are now wrongly insisting that "tech" now supports the bill.However, as we've detailed, while the giant companies like Facebook and Google can handle whatever fallout there is from this bill, smaller sites and even users of those big sites will be at risk. So it was extra depressing to see Facebook's Sheryl Sandberg post her glowing, but factually inaccurate, support for SESTA.

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So we've already talked a lot about the problems of the "knowledge" standard in the amended version of SESTA, in that it's way too broad, and leaves smaller sites completely adrift in figuring out if they're on the right side of the law. But there were other changes in the amended version of SESTA as well -- some good, and some bad. Law professor Eric Goldman has an excellent post detailing the changes, but I want to focus on one really perplexing one.For reasons that are totally unclear, SESTA now allows states Attorneys General to file civil charges against websites for violating sex trafficking laws. That's... weird. One good change in the new SESTA was the removal of letting state AGs go after sites for just violating state trafficking laws by requiring "conduct that violated a Federal criminal" trafficking law. That was important, because state laws are a hodgepodge of rules, and can change (often in weird ways) making it next to impossible for many websites to make sure they're magically in compliance with every state's laws on this issue. But perhaps to keep the state AGs happy, this was added instead:

One of the important elements of the First Amendment, and its protections of opinion, is that it opens up all kinds of debates -- from the political to the scientific. Indeed, the very nature of scientific research in academia is one of constant debate between researchers with different viewpoints. This has gone on for centuries. And, yet, it appears that at least one scientist has apparently decided that the standard nature of scientific debate is now defamatory. He's almost certainly wrong, but the details of this case are disturbing. Stanford professor Mark Jacobson apparently was less than happy to see criticism from another scientist, Christopher Clack. Rather than just respond with another paper, Jacobson has sued Clack and the National Academy of Sciences for defamation in the Superior Court in Washington DC (more on that in a moment).The complaint is worth reading as it lays out the path to this dispute in a pretty straightforward way. Jacobson and some other authors published an article in PNAS, the Proceedings of the National Academy of Sciences in late 2015. Early in 2016, Clack communicated with Jacobson via phone and email to better understand some of the assumptions in the original paper. Clack (and others) then published a "rebuttal" article (also in PNAS) to Jacobson's original article. Jacobson, from the complaint, appears to be upset that Clack never requested "a time series of model output from the Jacobson Article" or any information other than what was discussed via phone and email in early 2016.Upon being notified by PNAS of Clack's rebuttal article, and being asked if he'd liked to respond in a letter that PNAS would also publish, Jacobson claimed that Clack's paper had 30 false statements and "five materially misleading statements," and asked PNAS to withdraw the article. PNAS's deputy executive editor responded to ask if he could send Clack and his co-author's Jacobson's concerns, leading Jacobson to write a "slightly updated" list of grievances and specifically asked PNAS to forward them to Clack and the others. For whatever reason PNAS chose not to do so which is its right. There was some more back and forth before Jacobson realized that his list of complaints had not been forwarded, which seems to have greatly upset Jacobson (all the bold is directly from the complaint itself):

A small bit of good news from our lol-worthy Justice Department: federal prosecutors have decided they're no longer interested in jailing someone for laughing at the Attorney General. That isn't the entirety of the story (or the dropped charges, for that matter), so here's a little background.Back in January, Desiree Fairooz attended Jeff Sessions' confirmation hearing. Statements made by a legislator provoked an unfortunate response from this pink-hatted attendee.

Despite all of the coverage we provide on alcohol-related trademark disputes, Moosehead Breweries has still managed to separate itself from the pack with its aggressive trademark enforcement behavior. You should recall that this is the brewery that sued a root beer company called Moose Whiz and a brewery making a beer called Müs Knuckle under the theory that because it somehow got a trademark on the term "moose" it therefore means that any beverage company using that word is infringing its trademark. That's not correct on multiple fronts, including the question of whether any customers are actually or potentially being confused by the so-called infringing uses. Add to that the somewhat strange circumstance of Canada's CIPO approving a heritage word like "moose" in the Canadian market.Well, Moosehead is still at it, this time suing a brewery called Hop 'N Moose over that same trademark.

Once again, Disney has decided to sacrifice goodwill for brand perception. Not content to limit itself to sending C&Ds to kids' birthday party performers, Disney's latest act of self-savagery has resulted in backlash from several top journalistic entities.Back in September, the LA Times dug into Disney's supremely cosy relationship with Anaheim's government -- one that has produced years of subsidies, incentives, and tax shelters for the entertainment giant. Disney wasn't happy with the report, so it responded the way any rational company would: it issued a statement stating the articles were full of errors and claimed the LA Times "showed a complete disregard for basic journalistic standards." (Despite these claims, Disney has yet to ask for corrections to the LA Times' investigative articles.)Then it responded the way any irrational company would: by locking LA Times reviewers out of advance movie screenings.

I don't think I need to say much to introduce this week's topic — we're all well aware of the conversation about Facebook's role in the presidential election, including questions of filter bubbles, fake news, foreign influence, and so on and so on. As is always the case in situations like this, a lot of people seem to be looking for easy answers, and easy places to point fingers of blame, so in this week's episode we're discussing why it's just not that simple.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.

So we've spent some time talking about why SESTA is such a bad bill even in its updated form (which fixes just a tiny sliver of the overall problems). And we may have some more soon about other problems with the language in the bill, but for now I want to make this even more real and ask Congress -- and SESTA authors Senators Rob Portman and Richard Blumenthal, specifically, what they think bloggers, independent journalists, citizen journalists and anyone who hosts comments on their site should do if SESTA passes. Because all these sites are platforms protected by Section 230 of the CEA and, as SESTA is written, parts of it are so unclear that it could introduce significant legal liability, or at least uncertainty over whether or not they're liable for the comments readers post on their sites and articles.One thing we've heard over and over again from SESTA supporters is that the bill won't have any impact on most sites because (they claim) "no one accidentally facilitates sex trafficking." We wonder how they can be so certain. Ignoring, for the moment, that all sorts of important speech can be branded as speech related to trafficking, even for speech we all agree is problematic, it is not clear what the Congressional authors of the bill, and SESTA's staunchest advocates, think smaller sites, like ours, should do to ensure that none of that content ever sneaks through and ends up in our comment sections. To use us as an example: we're a small site, with a small team and limited resources. But we do allow comments on our posts, because we think community is an important aspect of a modern media site -- and we get a lot of comments, to the point that it is literally impossible for us to review every single comment on the site. We also, obviously, get a fair number of spam comments, and have put in place spam filters. The spam filters are pretty good, but they will make a few Type I and Type II errors at times (i.e., accidentally holding a legit comment and accidentally letting through a spam comment).The number of comments (spam and not spam) vary day by day, but it's not uncommon to deal with on the order of 2000 comments or so (both spam and not spam) on a daily basis. We cannot read through all of them. And at least some of the spam may be advertising questionable and illegal behavior -- potentially sex trafficking. Here's an example that I found in our spam filter. The title of the spam reads "hot chinese women" but the text of the comment links to a site advertising "columbian girls" and while we've redacted part of the URL (we don't want to promote them at all), as you can see, part of the domain involves "love." Most of the text is nonsense garbage which is just designed to get through a spam filter (thankfully, in this case, it did not work):Is this comment "facilitating sex trafficking" under federal law? I certainly hope not. But it's possible that the links in that spam go to a site that facilitates sex trafficking. And, while this comment was caught in our spam filter, what if it had gotten through? Do we now have "knowledge" that Techdirt, via its open comments, "assisted, supported, or facilitated" a violation of sex trafficking law? I would still argue that we don't, because we had no knowledge of that particular comment, and if we had seen it sneak through the spam filters, we clearly would have flagged it as spam and taken it off the site. But... the standard in the bill is not at all clear. Even worse: could this very post -- in which I'm explaining to Congress the uncertainty created by its own bill -- be used as evidence of me showing "knowledge" that sometimes spammers try to post these kinds of comments on our site? Is that enough to pass the hurdle in the bill to suggest I now have the requisite "knowledge" to potentially be both civilly and criminally liable? That would be a patently ridiculous outcome, but that, alone, represents some of the key problems of the bill as written.Indeed, my concerns about merely asking Congress what sites like ours should do, demonstrate the automatic chilling effect in the bill. The chilling effect is happening now, before the bill is even passed.I would hope that most rational people would say that we should not be liable just because some spammer is possibly clever enough to get a comment like this around our spam filters. But... as the bill is worded now, I am left wondering how do I avoid such liability? There are no clear safe harbors that tell me what steps to take to avoid such liability. Are we required to use a spam filter? What if none are perfect enough? Is the only way I can protect Techdirt be to kill the comment section and all the benefits a comment section enables? Can Senators Rob Portman and Richard Blumenthal tell me what to do? After all, during the hearing on this bill, when Blumenthal was told about its effect on smaller, independent sites, he insisted that such sites were "outliers" who "should be prosecuted." Is that what Blumenthal really thinks? A blog with a spam filter that is not 100% accurate should be prosecuted? If that's not what he thinks, then shouldn't the law he helped write make it clear for bloggers like me that merely allowing comments should not expose us to liability? Do small sites like Techdirt need to get pre-approval by the Internet Association who endorsed the bill to know if we'd be ok? Or, more likely, should sites like ours now need to go spend hundreds or thousands of dollars on lawyers to get an opinion that won't actually stop any potential lawsuit?I am sure that many supporters of SESTA will argue that this is an extreme scenario. They will say, "Oh, come on, no one is going to go after you for a spam comment." I hope that's true! But, under the language of the bill, it's unclear. And that's the problem. We've certainly seen (repeatedly) that when someone wants to attack a site, they will use whatever laws they can find on the books. To make matters worse, SESTA also allows state Attorneys General to bring both civil and criminal suits. We've certainly upset some state Attorneys General in the past. Would a vindictive one use this opportunity to stifle Techdirt and shut it down? I, again, hope not, but we're living in an age where apparently it's considered okay for politicians to use their bully pulpits to threaten legal action against opponents, including the press.There may be ways to improve SESTA -- but many of the ideas on the table also have potential serious negative consequences. We should be engaged in a careful discussion about those consequences and the costs and benefits of various approaches. There needs to be a clear explanation for how sites like ours can avoid these risks. But that's not what's happening. Small sites don't have the resources of a Facebook or a Google. They can't just spend thousands of dollars on lawyers to figure out how to navigate this new vague language, which wouldn't even guarantee that they won't get in trouble just because, say, a spam filter isn't good enough.SESTA isn't just a bad bill because it won't do anything to stop trafficking (the trafficking will continue). It leaves smaller sites, such as ours, completely in the lurch over what our own level of risk is. So, a plea to Congress -- and Senators Portman and Blumenthal specifically: if you are going to move forward on this bill at least fix it so that sites like ours know what to do to stay on the right side of the law.

Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat -- aimed at a blogger -- oversteps its bounds egregiously.PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:

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The Internet Association's support for SESTA is truly bizarre. Should its support cause the bill to pass it will be damaging to every one of its members. Perhaps some members feel otherwise, but it is hopelessly naïve for any of them to believe that they will have the resources to stave off all the potential liability, including criminal liability, SESTA invites to their companies generally and to their management teams specifically, or that they will be able to deploy these resources in a way that won't destroy their user communities by over-censoring the creativity and expression they are in the business of providing forums for.But that's only part of the problem, because what no one seems to be remembering is that Section 230 does not just protect the Internet Association's platform members (and their management teams) from crippling liability; it also protects its platform members' users, and if SESTA passes that protection will be gone.Naturally, Section 230 does not insulate users from liability in the things they themselves use the platforms to communicate. It never has. That's part of the essential futility of SESTA, because it is trying to solve a problem that was not a problem. People who publish legally wrongful content have always been subject to liability, even federal criminal liability, and SESTA does not change that.But what everyone seems to forget is that on certain platforms users are not just users; in their use of these systems, they actually become platforms themselves. Facebook users are a prime example of this dynamic, because when users post status updates that are open for commenting, they become intermediary platforms for all those comments. Just as Facebook provides the space for third-party content in the form of status updates, users who post updates are now providing the space for third parties to provide content in the form of comments. And just as Section 230 protects platforms like Facebook from liability in how people use the space it provides, it equally protects its users for the space that they provide. Without Section 230 they would all be equally unprotected.True, in theory, SESTA doesn't get rid of Section 230 altogether. It supposedly only introduces the risk of certain types of liability for any company or person dependent on its statutory protection. But as I've noted, the hole SESTA pokes through Section 230's general protection against liability is enormous. Whether SESTA's supporters want to recognize it or not, it so substantially undermines Section 230's essential protective function as to make the statute a virtual nullity.And it eviscerates it for everyone, corporate platforms and individual people alike – even those very same individual people whose discussion-hosting activity has been what's made platforms like Facebook so popular. While every single platform, regardless of whether it is a current member of Internet Association, an unaffiliated or smaller platform, or a platform that has yet to be invented, will be harmed by SESTA, the particular character of Facebook, as a platform hosting the platforms of individual users, means it will be hit extra hard. It suddenly becomes substantially more difficult to maintain these sorts of dynamic user communities when a key law enabling those user communities is now taken away, because in its absence it becomes significantly more risky for any individual user to continue to host this conversation on the material they post. Regardless of whether that material is political commentary, silly memes, vacation pictures, or anything else people enjoy sharing with other people, without Section 230's critical protection insulating them from liability in whatever these other people should happen to say about it, there are no comments that these users will be able to confidently allow on their posts without fear of an unexpectedly harsh consequence should they let the wrong ones remain.

We've noted for years how giant ISPs have literally written and purchased protectionist laws in more than twenty states restricting towns and cities from building their own broadband networks. Many of these laws even go so far as to restrict these towns from striking public/private partnerships with companies like Google Fiber, often one of the only options for areas incumbent ISPs have declared not-profitable enough to serve. In this way giant ISPs get their cake and eat it too: they don't have to expand service, but make sure nobody else can either.Colorado's SB 152 is one such law. SB 152 was a 2005 product of lobbying from Comcast and CenturyLink, and required communities jump through numerous hoops should they want to simply make decisions regarding their own, local infrastructure. Like all such laws the ISP pretense was that they were simply looking to protect taxpayers from financial irresponsibility (an idea often lacking in ISPs' daily business efforts), though it's abundantly clear the real goal was to prop up and protect the dysfunctional broadband duopoly status quo from anything vaguely resembling change or competition.However, over the last few years ballot initiatives have allowed several Colorado communities like Boulder, Montrose, and Centennial to take back their right to determine their infrastructure needs for themselves and ignore the restrictions SB 152 imposes. Rather unsurprisingly, residents angry at substandard service from the likes of Comcast have been overwhelmingly opting out of the restrictive state law. Again -- not because they think building a network will be fun -- but because they're so disgusted by incumbent service they feel they have no other option.Fort Collins is the latest city to this week vote on opting out of SB 152. To be clear: opting out of the law's restrictions only opens the door to the possibility of building a network or striking public/private partnerships. But the incumbent ISPs like Comcast that bought the law have spent more than $200,000 to prevent that conversation from even happening:

Last month, we wrote about the strange and unfortunate decision by a magistrate judge in the copycat lawsuit by the American Chemical Society against Sci-Hub, the "renegade" online repository of academic knowledge. As we've discussed for years, the copyright attacks on Sci-Hub are silly, given the entire stated purpose of copyright is supposed to be to increase "learning" (and there's rarely a monetary incentive to the scholars writing academic articles). Copyright in academic papers is silly for a whole host of reasons, and then using copyright law to take down what is effectively an incredibly useful library of academic knowledge seems to run entirely counter to the basis of copyright law.And yet, things with Sci-Hub keep getting dumber. After it lost the lawsuit Elsevier filed against it, the American Chemical Society jumped in to file a copy cat lawsuit. The issue last month was our surprise that a magistrate judge recommended an injunction against third parties who were not parties to the lawsuit, demanding that they block all access to Sci-Hub. This could impact tons of ISPs, search engines, domain registrars and more. On Friday, amazingly, the Title III judge on the case, Judge Leonie Brinkema, more or less went with the magistrate's recommendations, with one slight change. You can see the order and injunction either at those links, or embedded below.Because Sci-Hub -- run by a woman who doesn't live in the US -- chose to ignore the lawsuit, this is a default judgment, so the judge never got to hear anyone else's viewpoint, other than ACS. It's troubling that the judge -- just prior to issuing the injunction -- decided to reject an attempted amicus brief from CCIA, which sought to explain why site blocking is not allowed as a remedy. The judge did make one change, which at the very least improves the injunction slightly. The official injunction reads as follows:

Seeing trademark bullies in operation, particularly when a large entity bullies a small business, will never cease being a source of frustration for me. That said, my frustration gets supercharged when the trademark being wielded as a bullying weapon is laughably generic and clearly should never have been granted in the first place. And when the bully is attacking a company that it doesn't even compete with, that's the anger-cherry on top of the hate-sundae.Speaking of which: meet Village Hotels. Based in the UK, the chain operates 29 hotel properties and makes for itself a great deal of money. BH Village Inn, on the other hand, is a community owned pub in Roughlee, Lancashire. It has no rooms for rent. It has no concierge. It was simply a pub, once known as the Bay Horse Inn, which was bought by three hundred residents of the town and re-opened as the Bay Horse Village Inn, as a nod to the community ownership. They tried to register the name of the pub as a trademark. That's when Village Hotels fired off a threat letter.

Court decisions stripping officers of immunity for civil liberties violations are still mostly an anomaly. But we'll take what we can get. This immunity-stripping decision by the Ninth Circuit Appeals Court appears to have been aided by the police department's own dashcam video, which helped dispel some of the "our word against yours" haze that clouds excessive force cases.In this case, acts of violence followed several seizures (of the epileptic variety, rather than the law enforcement variety). From the decision [PDF]: