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In addition to high costs and the slow pace of digging up streets, one of the reasons Google Fiber is contemplating a pivot from fiber to next-gen wireless broadband is the boring old utility pole. As it stands now, new market competitors often have to navigate an archaic, elaborate and expensive process to attach fiber to poles. Quite often, attaching fiber requires having any other ISPs in the area notified in writing, then waiting for each one to move their own equipment piecemeal, one of several bureaucratic processes incumbents have long abused to slow down the arrival of new competitors.When Google Fiber began more seriously deploying fiber, it proposed new "one touch make ready rules" in many municipalities. Under these revised rules, a licensed, insured third-party contractor is allowed to move any equipment on utility poles with owner approval. In many instances, these contractors are the very same ones used by large ISPs themselves. The regulatory reform is estimated to streamline the pole attachment process by six months to a year.But because this regulatory reform would make it easier for broadband competitors to come to market, large ISPs like AT&T, Comcast and Charter (Spectrum) decided to sue cities like Louisville and Nashville for proposing such reforms. Of course these regional mono/duopolies can't admit they're predominately motivated by anti-competitive reasons, so they've tried to argue they're simply worried that the reform will cause rampant outages (again, these are licensed, insured contractors already employed by many ISPs). Charter even tried to claim the reforms violated its First Amendment rights.But something shifted this week in this long-standing, if under-noticed and important debate. Verizon has decided to buck AT&T and Comcast, and has published a blog post throwing its full-throated support behind Google's one touch utility pole reform (though you'll note they're careful not to mention their arch-nemisis Google by name). Verizon is quick to highlight the often-absurd bureaucracy at the heart of this process:

Distracted driving laws and the crusade against distractions in the car have a history that goes back many years. Generally, the trend has been to try to ban each new distraction that comes along, and to seek to place the blame on device makers and automakers for not figuring out how to reliably disable those devices. There was even a ruling in California that made it illegal for a driver to use a mapping app. But now, the state of Colorado has done something unexpected, and perhaps even... reasonable.The state has made it legal to text while behind the wheel, unless it's done in a "careless or imprudent manner." While the new law does give a reprieve to those who use their phones in a safe manner (e.g., while at red light, or stopped in traffic), it also significantly increases the penalties for those who run afoul of the "carelessness" provision. As we've written before, there are many potential distractions inside a vehicle, and eliminating them all would be impractical, if not impossible. So this new law puts the focus on the dangerous behavior instead of the potential distraction itself, holding the driver responsible for unsafe actions.

Prosecutors seeking to justify a lengthy sentence (and the abuses that had already occurred) in the Chelsea Manning case insisted the documents she leaked had caused serious damage to those exposed by them. They said this even as multiple government officials admitted the most the United States had suffered was some embarrassment.Jason Leopold has obtained an official assessment of the Manning leaks which shows the same thing: no real damage was done.

Whether it's rolling back already agreed upon merger conditions, killing net neutrality, or eliminating broadband privacy protections, giant ISP lobbyists are having a field day under the Trump administration, slowly but surely stripping away oversight of one of the least competitive -- and most anti-competitive -- sectors in American industry. We've noted repeatedly that as giant cable providers like Comcast nab an ever larger monopoly over next-gen broadband services, the end result of this myopic pursuit will be even higher rates -- and even worse customer service -- for everyone.But there's a problem in this quest to create a new, golden era of telecom sector monopoly dysfunction: individual states.In the wake of the attack on the FCC privacy rules, more than a dozen states have rushed to enact new privacy protections for consumers, requiring that ISPs are very clear about what data they're collecting and who they're selling it to. And in the wake of federal apathy to consumer complaints about some of the worst customer service in any industry, individual states have also started pushing back, as evidenced by New York Attorney General Eric Schneiderman's lawsuit against Charter Communications for advertising speeds company execs knew they couldn't deliver.Ironically, cable lobbyists (and the politicians, sock puppets, think tankers and policy wonks paid to love them) have quickly rushed to defend "states' rights!" when it comes to giant ISPs' ability to write protectionist state laws that hamper broadband competition. But now that several states are actually passing legislation that might help consumers, the broadband industry and current FCC have launched a concerted effort to keep states from meddling in their attempts to build utterly-unaccountable media, advertising, broadband and television conglomerates.Case in point: the FCC is already making noise about their plans to somehow prevent states from passing consumer broadband privacy laws. And last week, cable industry lobbyists began petitioning the FCC in the hopes of making it much more difficult for states to investigate claims of substandard broadband service and speeds, allowing them to hide behind the "up to" marketing language most of us are familiar with:

It seems like not a week can go by without some silly trademark dispute in the alcohol industries. This latest example comes to us from Ireland and provides a vivid demonstration for why trademarks ought to only be granted on unique and original names and not, say, on a mark based on common geography.Leo Mansfield of the Connemara region of Ireland opened a storefront business and called it "Conn O'Mara" after the titular fictional character he created as something of a mascot for the store. He registered the name "Conn O'Mara" as a trademark in 2009, as well as the logo for the Conn O'Mara character he created. All of this is perfectly original stuff, a fun and fictionalized nod to the Irish region where the storefront is located. In 2015, however, Mansfield decided to release a line of craft beer through the store as well and filed for a trademark on the name and logo to be used on his brews. Beam Suntory, headquartered in Chicago with two distilleries in Ireland, filed a notice of opposition to Mansfield's trademark, claiming that it has a registered mark for "Connemara" for the liquor marketplace.

This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray.I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes:

This week's episode is all about copyright and culture, with a pair of the best guests you could ask for on the subject. Almost ten years ago, law professors Keith Aoki, James Boyle and Jennifer Jenkins released a comic book about copyright called Bound By Law, and now they are back with a sequel: Theft: A History of Music. This week, James and Jennifer join us to discuss the new comic and the history of copyright and music (with lots of fair use music snippets to demonstrate the legacy of 'theft')!You should also be sure to check out the comic itself! You can download a digital copy for free of course, but for those who want to get their hands on the beautiful paperback edition, we've got a limited time offer for Techdirt fans: you can get it for only $8.99 at Createspace (that's 40% off!) when you use the discount code 2FESBPRQ within the next two weeks. It's also available on Amazon with a free Kindle edition included when you buy.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.

Going all the way back to 2002 (and many times after that), we've talked about courts struggling with whether or not it's okay to ban people from the internet after they've committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it's only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they're convicted of horrific crimes -- in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment's free speech clause and the Fourteenth Amendment's due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law.In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed -- using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster "J.R. Gerard" was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was "constitutional in all respects." The Supreme Court of the United States, however, did not agree.The ruling is interesting on a number of levels. It cites, pretty directly, EFF's amicus brief, noting just how important and central to our lives sites like Facebook have become.

You've probably heard about the horrific tragedy in the UK of the Grenfell Tower fire that killed many people. There are all sorts of awful stories related to the tragedy, but there is one that hits close to home: the use of SLAPP threats to silence residents who warned about fire dangers in the building. You see, a group of residents in the building who were concerned about safety issues, calling themselves the Grenfell Action Group have been blogging about problems in the building for years -- including this horrifyingly prescient blog post from last November, which included the following paragraphs:

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If you wanted even more leeway for government officials to bypass accountability, you've got it. Courtesy of the US Supreme Court, the immunity for federal officials has just been expanded. On a day when the court handed down two significant First Amendment victories, the court has dialed back an avenue of redress for people whose rights have been violated by federal employees.This case has its origins in the 2001 Twin Towers attack. In the wake of the attack, the government engaged in some questionable behavior (not unlike some of its World War II actions), rounding up undocumented Arab immigrants and detaining them under harsh conditions.When they were finally released, they sued the US government for violating their rights. Unfortunately, options for directly suing federal officers are severely limited. Up until the Supreme Court's 1971 Bivens decision, plaintiffs had almost no way to seek redress for rights violated by federal employees. Bivens produced a new option, but its limited scope still made it very difficult for plaintiffs to secure a ruling in their favor. It's especially useless in cases like the one before the Supreme Court -- a case where the plaintiffs have no other way to bring a suit against the government other than going the Bivens route, thanks to their status as undocumented aliens at the time the rights violations allegedly occurred.This new decision limits Bivens even further by adding national security concerns to the mix. In cases like these -- prompted by federal government reactions to a domestic terrorist attack -- the Supreme Court comes down on the side of the US government. But it's not just national security playing a limiting factor in seeking justice for violated rights. It's pretty much any case where the government hasn't seen this particular sort of violation before.Cornell law prof Michael Dorf points out how severely restricting this ruling is for plaintiffs who have a single recourse option available to them:

If there's any real creativity in the broadband sector, it often has little to do with the actual products and services offered. More often than not, the real creativity in the sector involves finding ingenious new ways to bilk consumers out of additional money, or charge them significantly more money for the exact-same service. Whether talking about hidden below the line fees or arbitrary and unnecessary usage caps, the lack of real broadband competition has resulted in a gold rush -- at least when it comes to creatively-misleading charges.CenturyLink (the end product of a series of telecom sector mergers involving Embarq, Qwest and CenturyTel) has already pursued usage caps and overage fees, as well as an incredibly misleading, unnecessary and nonsensical "Internet cost recovery fee" it tacks on to the bottom of every broadband bill. But the company is now being accused of taking things notably further. One former employee has filed suit in Arizona, accusing the company of signing up subscribers for a rotating crop of services they didn't want and didn't order -- simply to help company reps meet sales targets.Former customer service agent and case plaintiff Heidi Heiser says she and other support reps began noticing that consumers were being signed up for lines or services they didn't order, and that company higher ups didn't seem to much care:

It appears the NSA hasn't learned much since Ed Snowden left with several thousands of its super-secret documents. Agency officials were quick to claim the leaks would cause untold amounts of damage, but behind the scenes, not much was being done to make sure it didn't happen again.A Defense Department Inspector General's report obtained via FOIA lawsuit by the New York Times shows the NSA fell short of several security goals in the post-Snowden cleanup. For an agency that was so concerned about being irreparably breached, the NSA still seems primed for more leakage. Charlie Savage reports:

Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake."Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon.

It's not like we need any more evidence showing asset forfeiture has almost nothing to do with enforcing laws or breaking up criminal organizations. But law enforcement agencies just keep generating damning data.The Charleston Post and Courier's article on the subject runs under an innocuous title that seems to put the blame on the federal government for the asset forfeiture sins of local police, but the article tells a completely different story. The officers and officials quoted in the story make noises about taking down criminals, but the greedy devil is in the details.

Remember Rightscorp? This is the wannabe "friendlier" copyright troll, that sends smaller bills than the traditional copyright trolls. Over the years, it's actually struggled to make any money... and has struggled with some of its more bizarre legal theories. Unfortunately, in late 2015, one of Rightscorp's partners got a big ruling against Cox, arguing that Cox violated the DMCA by not properly terminating repeat infringers (as we noted at the time, this was based on a tortured interpretation of the law. The case is still winding its way through the appeals process, but Rightscorp and its partners have continued to push forward, using the ruling in that BMG v. Cox case to pressure others. At least one other ISP has already been sued.And, now, the company is out claiming that it's talking with "top ISPs" to get them to incorporate Rightscorp's copyright trolling efforts directly into their own infringement mitigation procedures:

We've written a few times now about the case involving the band "The Slants" and their fight against the US Patent and Trademark Office concerning whether or not the band could trademark its own name (and, yes, this case is indirectly tied to the fight over whether or not the Washington Redskins can keep its team name trademarked). The key issue is a part of trademark law -- §1052(a) -- that says that the USPTO can deny trademarks if they "disparage... or bring into contempt or disrepute... persons, living or dead." When we first came across this case, a few years back, I argued that this clause did not violate the First Amendment. My argument, originally, was that a failure to grant a trademark was not restricting speech in any way (in fact, it was the opposite -- it was allowing more speech, since the registered trademark could no longer be used to block the speech of others).But the issue is a tricky one, and after thinking about it more, reading much more and talking to a number of lawyers, my position shifted. And the hinge on which it shifted was this: the problem with 1052(a) was that it involved the government determining whether it "blessed" something with a trademark based on the content. And that, right there, has always been seen as a problem for the First Amendment. The government should not be making any subjective decisions based on expression -- and, yet, under 1052(a) it was. And now... the Supreme Court has agreed with that view and has struck down 15 USC 1052(a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. And, on top of that, the Court went so far as to state upfront that a favorite claim of lots of angry people (on all sides of the political spectrum) these days -- that "hate speech" is somehow not "free speech" -- is simply untrue. The full ruling is 39 pages, which includes different Justices agreeing on some parts and not others, and writing separate concurring opinions -- but the overall point is clear. The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government:

A GOP data firm has accepted responsibility for leaving the personal data of 198 million Americans (aka: most of the country's voting populace) openly accessible on an Amazon server in the biggest voter data leak in global history. Deep Root Analytics, the owner of the data, has long been contracted by the Republican National Committee to measure voter opinions on a wide variety of issues, from health care to gun control. As part of their contract with the RNC, the group pulls voter information from a wide variety of sources, ranging from Reddit to the Karl Rove super PAC American Crossroads.This data, which includes religious affiliation and ethnicity, is then utilized to help craft PR efforts and other messaging, as well as to determine turnout and voter preferences. And, according to analysis of the data and previous profiles of the company like this one over at Ad Age, this firm was hugely influential in getting Donald Trump's "populist" message out to voters during the last election cycle.But last week, UpGuard cyber risk analyst Chris Vickery discovered that Deep Root had been storing a massive amount of this data on Amazon servers, publicly accessible via the internet, with absolutely no apparent security precautions whatsoever:

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Former FBI Director James Comey made plenty of headlines with his insistence cellphone encryption would be the end of law enforcement as we know it. Comey's assertions made it seem as though regular police investigative work was no longer of any use and that any and all evidence pertinent to cases resided behind cellphone passcodes.He insisted the problem would only get worse in the future. If not put to an end by legislated backdoors or smart tech guys coding up "safe" holes in device encryption, we may as well accept the fact that no criminal committing more than a moving violation would ever be brought to justice.Default encryption does pose a problem for law enforcement, but it's nowhere near as insurmountable as Comey has portrayed it. Multiple FOIA requests handled through MuckRock have shown law enforcement still has several phone-cracking options at its disposal and doesn't seem to be having many problems recovering evidence.This is superbly illustrated in documents obtained from the Tulsa and Tuscon (AZ) Police Departments by Curtis Waltman. Tuscon PD documents [PDF] show law enforcement officers are using tools crafted by the same company that provided the hack to the FBI in the San Bernardino case, among several other options. But the real motherlode is the Tulsa PD's log of cracked phones.

A new study from Tivo (pdf) notes that nearly half of current pay TV subscribers are considering cutting the cord this year. That's not particularly surprising given the fact that the first quarter set cord cutting records, and the second quarter is expected to be significantly worse. Similarly unsurprising is the fact that of these defecting customers, roughly 80% of those departing say they're doing so because traditional cable TV service is simply too expensive:37.1% of respondents spent at least $101 per month on cable TV, with some spending upwards of $150 per month, with trends only aiming higher. While cable providers often pay ample lip service to "providing value," the entire cable and broadcast sector continues to believe that it can simply refuse to compete on price with a growing roster of streaming competitors now arriving at the gates of their beloved cash cow.Case in point is Charter Communications, which after a recent acquisition spree has been raising TV rates upwards of 40% despite the supposed bump in competition. Charter CEO Tom Rutledge, who was deemed to be the highest paid executive in the United States last year at $98 million, has insisted that these customers were simply "mispriced" under previous ownership and needed to be nudged in the "right direction" (read: paying even more money for the same service they already thought was too expensive):

The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.The court, however, has sided with prosecutors.

This week, after a Wisconson senator attacked net neutrality by bemoaning the supposed lack of "fast lanes" online, JoeCool won first place for insightful by summing up why that's nonsense:

Five Years AgoIt was this week in 2012 that The Oatmeal wrote a level-headed criticism of FunnyJunk and received, in return, a somewhat scattershot threat of a defamation lawsuit. As a result, a whole lot of internet attention and ire was turned on one man, whose name we'd become very familiar with: Charles Carreon, who dug in his heels and tried to shut down The Oatmeal's fundraiser. Then he lashed out and accused Matt Inman of "instigating security attacks", and then swore he'd find some legal avenue by which to go after Inman. The saga, as you know, will continue in future weeks...Ten Years AgoThis week in 2007, media companies continued to pile on to YouTube with money-grab lawsuits. Sports leagues were actively fighting to claim ownership of facts about games, with the NCAA ejecting a reporter for live-blogging and Major League Baseball taking its legal fight over fantasy leagues to the appeals court. The MPAA and RIAA teamed up to create yet another lobbying group hot on the heels of the new Copyright Alliance, AT&T decided to start filtering infringing content for Hollywood, and a worrying court ruling ordered TorrentSpy to collect and hand over additional data on its users.Fifteen Years AgoThis week in 2002, in an act that practically defined "too little, too late", Sony and Universal announced plans to cut prices on digital music downloads. The BSA was beating its usual drum about the dangers of software piracy, the government was floundering when it came to internal use of technology, and the geeks in Silicon Valley were continuing to get more political. It was also this week that the late, great David Bowie shared some of his refreshingly forward-looking thoughts on copyright in the digital age, saying "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Almost everything he said about the nature of the coming change was correct, but he underestimated the power, tenacity and deep pockets of those who continue to fight tooth and nail against it.Ninety-Seven Years AgoMost cliches exist for a reason — though tired, they are apt. It's easy to forget they had to come from somewhere, and fun to find out where that was. And so this week we celebrate the birth of a common political cliche: the "smoke-filled room" where big decisions are made by powerful people. It was on June 11th, 1920 that Raymond Clapper of the United Press first used the term to describe the nomination process for Warren G. Harding at the Republican National Convention, presumably not knowing it would enter the lexicon as a go-to shorthand.

People who do not have a legal reason to have content delisted are still trying to trick Google into compliance with various illegal actions. So far, we've seen bogus lawsuits filed by fake plaintiffs against fake defendants, slid by inattentive judges to secure takedown orders. We've seen people trying to limit negative search engine results by forging judge's signatures on fake orders. We've seen people assemble fake news sites to post copies of negative content solely for the purpose of targeting the original posts with fraudulent takedown orders.Eugene Volokh has dug up another interesting libel takedown order, supposedly issued by a Michigan federal court. It awards the plaintiff, Abraham Motamedi, $5,720 in legal fees and the delisting of sex offender registry-related URLs (only one of which isn't a top-level domain). From the order [PDF]:

I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes.And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously.

In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law.Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases).

Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use.Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either.

We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published.In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play.In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it.

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Last year we noted how Russia had introduced a new surveillance bill promising to deliver greater security to the country. Of course, like in so many countries, the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized.This year, Russia hopes to deliver the killing blow to the use of VPNs and other privacy-protection tools.The Duma's (the lower house of the Russian parliament) Information and Technology Committee has approved controversial draft legislation that would ban anonymity on messenger apps entirely. It's part of a crackdown on anonymous journalists that have (stop us if this sounds familiar) been leaking details on many of the sordid occurrences inside the often-corrupt Russian political machinery. Expected to take effect in 2018, the new law would require messenger users to verify their identities using their phone numbers, with Russian mobile phone operators expected to assist the government with this effort.In concert, a bill has been submitted attempting to effectively ban VPN use entirely. In Russia, broadband users have increasingly turned to VPNs to avoid the growing-list of censored websites. To help thwart such usage, the bill would not only impose steep fines on VPN providers that don't agree to block blacklisted websites, but would require ISPs terminate these companies connection to the internet should they not comply:

Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

T-Mobile's loopy idea to try and treat wireless subscribers better (well, if you exclude their attacks on the EFF and net neutrality) has been a great thing for American consumers and wireless sector competition. Thanks to more consumer-friendly policies, T-Mobile has been adding more subscribers per quarter than any other major carrier for several years running. This added competitive pressure recently resulted in both AT&T and Verizon being forced to bring back the unlimited data plans the companies had been insisting for years consumers didn't actually want.The problem, if you're a wireless carrier or investor, is that AT&T and Verizon are making slightly less money now that they're unable to sock consumers with restrictive caps and overage fees. In fact, wireless sector revenues dipped slightly in the first quarter for the first time in seventeen years, as T-Mobile competition forced carriers to engage in a little more than theatrical non-price competition. Keep in mind these companies are still making some fairly-incredible profits, and their expansion into areas like smart cities and the IOT give them ample opportunity for new revenue streams.But unlimited data plans returned at the start of the year, and Wall Street firms still can't quite let go of the fact that these industry giants might just have to make a little less money. Cowen and Company Equity Research analyst Colby Synesael simply isn't very happy about this whole competition thing:

The ODNI has released several documents in response to FOIA lawsuits (EFF, ACLU). The EFF scored 18 of these (handy zip link here) and the ACLU seven. The ACLU's batch has proven more interesting (at least initially). One document it obtained shows a tech company challenged a Section 702 surveillance order in 2014. The challenge was shut down by the FISA court, but with the exception of Yahoo's short-lived defiance, we haven't seen any other evidence of ISP resistance to internet dragnet orders.Included in the ACLU's batch is a 2008 FISA Court transcript [PDF] that's particularly relevant to the NSA's voluntary shutdown of its "about" collection. In it, the NSA discusses its filtering and oversight procedures, which were already problematic nearly a decade ago.There are some really interesting tidbits to be gleaned from the often heavily-redacted proceedings, including this statement, which makes it clear the NSA engaged in wholly-domestic surveillance prior to the FISA Amendments Act.

Video game makers and publishers have wildly different stances on modding communities, as is well known. Some embrace the communities and see them correctly as a free boon to the popularity of their games, while others would rather maintain strict control of the gaming experience by resorting to legal muscle with modders. But there is something strange in the Grand Theft Auto franchise, with Rockstar Games and Take-Two Interactive often taking confusing positions on what communities can do with their games. What would seem undeniable is that the modding community has extended the lifespan of finely-aged games, such as Grand Theft Auto IV, by giving gamers new ways to play them.And, yet, Take-Two appears to have recently sent a threat letter to a wildly popular tool to mod GTA4, angering of a large swath of its own fans. OpenIV is the name of the tool and it had a wide array of uses, including making videos of gameplay from angles impossible in Rockstar's editor, to adding new vehicles to the game and delving into the game code to find secret areas. Some content created using the tool has even been featured on Rockstar's website, with the company going to lengths to praise the modding community's creations. Earlier this month, however, the creators of OpenIV got a cease and desist letter from Take-Two.

Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme.This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect.After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question:

While we've talked about the NCAA in the past, those conversations have mostly revolved around the NCAA's backwards thinking regarding the streaming of sporting events and issues about the likenesses of players appearing in video games. Unsaid from what I can tell, however, is the general opinion of this writer that the NCAA is an outdated institution designed to make gobs of money off of the labor of otherwise free citizens while curtailing their rights to make any income themselves. These attempts to make income by college athletes typically revolve around selling autographs, memorabillia, and game-worn clothing, but the NCAA is perfectly capable of taking its rules to ridiculous lengths.Serving as an example of this is UCF kicker Donald De La Haye, who has been informed by the NCAA that he must either shutter his YouTube channel or his football career.

Another day, another bad copyright ruling out of Germany. What's up with Germany these days? Specifically, the court has barred Google from linking to the Lumen Database when it takes down content. This is bad on a variety of levels, but first some background: Lumen Database is what was formerly known as "Chilling Effects" -- a site to catalog DMCA and other kinds of takedowns (though most people focus on the DMCA ones). It has been tremendously useful over the years in all sorts of ways, especially concerning academic research into how the DMCA takedown process is actually working. It's often how we discover examples of takedown abuse.However, for many years, the legacy entertainment industry has complained (and complained and complained) about the very existence of the Lumen Database. Their main (stated) reasoning is that it creates a database of links to infringing material -- though I'm sure the fact that it's been so useful in highlighting all of the abuse of the DMCA takedown process is a secondary (though less publicly admitted) reason for why they dislike it so much. The problem with this complaint is that there is literally zero evidence that Lumen Database is regularly used as a source for infringing materials. If you ask people who focus on this stuff, it's just not a site that comes up. Because it's really not particularly useful for that kind of thing. Either way, Lumen Database has made some efforts to reduce the visibility of links in its database in an attempt to mollify complainers.But the anger ratcheted up even more once Google attempted to provide more transparency into the takedowns it receives and how it deals with them. Among the things Google has done is forward all of its takedown notices to the Lumen Database, release a special transparency report focused specifically on copyright takedowns (and letting people search through its database), and finally also then linking to the takedowns in the Lumen Database when it does remove content. The reasoning for this is completely obvious and sensible. If content is being removed, it is appropriate to learn why. The takedown notice provides those details and also helps people make sure that when the takedown notices are abused for censorship, it is more quickly discovered and fixed.However, again, this linking from Google to Lumen Database has completely freaked out a segment of the copyright maximalist community -- as they insist that people are doing searches, failing to find what they want, clicking the little link to Lumen and then skimming the takedown letter to find the URLs where the content they want supposedly exists. Again, there is little evidence that this is happening at all, let alone on a wide scale. For what it's worth, it does appear that when takedowns target Google, many also target the original source, which takes down the original as well, meaning there's nothing at the links anyway.Apparently, none of this much mattered to the court. It bought the silly line how this might be used for finding infringing content and ran with it. This particular case doesn't even involve copyright infringement, but a takedown demand from a company that was upset about the way the Google snippet appeared -- which already sounds pretty crazy. From the IP Kitten site linked above:

In response to FOIA lawsuits, the Office of the Director of National Intelligence turned over two (!) stacks of FISC documents pertaining to Section 702 surveillance. One document [PDF] (from an ACLU lawsuit) reveals a tech company (whose name is redacted) refused to hand over (or provide access to) communications requested with a Section 702 order. This order was issued in 2014, so it's a post-Snowden challenge. The end result -- determined with almost zero participation from the tech company -- is an order from Judge Rosemary Collyer demanding the tech company produce the records.Discussed along the way to this conclusion are several things, including the NSA's problems with the Section 215 collection. There are also discussions about the adequacy of the NSA's minimization processes, meant to protect the privacy of US persons caught in the agency's internet dragnet. Unfortunately, we're not able to see much of this discussion, thanks to the opinion being heavily-redacted.But we may be one step ahead of the mystery tech company, which had to fight this legal battle completely blind. All arguments and evidence were provided by the government, in camera and ex parte. The tech company was apparently allowed to submit its arguments, but was otherwise sidelined by the national security nature of the legal proceeding.The opinion notes that the ODNI had issued a new 702 directive in 2014, presumably expanding the NSA's collection powers, which seems like a really odd decision post-Snowden. This is apparently what the tech company challenged. There's not much else that can be gleaned from the court's discussion of the expanded powers and their effect on the Fourth Amendment, other than it disagrees with the tech company's assessment. At one point, the court states "This argument is simply not supported by the facts" before heading into six fully-redacted pages apparently discussing the facts that don't support the company's arguments.The court also finds, despite evidence to the contrary, NSA "incidental" collection of US persons' communications does not happen "frequently, or even on a regular basis." Any discussion of what the court feels is an acceptable amount of violations is, again, hidden under page after page of redaction.To sum up, the court concludes that even if it's a close call on the Fourth Amendment (and even if the company had standing to bring this challenge), the national security purpose of the collection outweighs most possible privacy concerns. It expresses a great deal of faith in the NSA's internal oversight -- which seems odd considering the admissions by the NSA about its collection tactics in other released documents, including the fact that it relies almost completely on self-reporting and spot checks to minimize use of incidentally-collected US persons' communications.The good news is that the NSA's inability to stop incidental collection resulted in the shutdown of the "about" collection. The other good news is some mystery company took a strong stand to protect its users' privacy. The downside, however, is the challenge failed. Worse, it appears the NSA's other 702 collection methods are still capable of grabbing US persons' communications and its internal oversight hasn't gotten much better over the years.

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Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.

For much of the last decade we've noted that Verizon received billions in tax breaks and subsidies for fiber optic networks that were only partially deployed. From New Jersey to Pennsylvania, from New York City to Philadelphia, newswires the last few years have been filled with complaints from consumers and governments who say the company didn't finish the job it was handsomely paid to complete, leaving a patchwork of spotty next-gen broadband availability, and entire cities filled with customers still paying an arm and a leg for circa 2002 DSL speeds.And the problem isn't just that Verizon didn't upgrade its networks, it's that the company has been neglecting the aging DSL network equipment already in place. In 2015, for example, frustrated Verizon union employees submitted a complaint to the Pennsylvania Public Utility Commission highlighting just what Verizon's network hardware currently looks like in many parts of a state that was supposed to have been upgraded to fiber years ago:The same can be said for a wide variety of instances where Verizon couldn't really be bothered to work particularly hard at utility pole repair:Given Verizon's political stranglehold over federal and local regulators and legislators, efforts to hold the company accountable on this front have been decidedly mixed. The company has often added insult to injury by insisting these complaints are either "pure nonsense," or at times by trying to claim that people who would like their phone and DSL lines to be upgraded (or hey, to simply work) are just being archaic Luddites because they refuse to sign up for significantly more expensive wireless service that in many areas may not be available anyway:

If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game.This is why the EFF is warning people about another right of publicity bill being quickly and quietly ushered through the New York state legislature.

Here on Techdirt we like to remind people that drones are not just death-dealing machines in the sky, but can also be a force for good. However, like any other technology, drones can and are utilized by the worst as well as the best. Inevitably, that includes terrorist groups like Islamic State (ISIS), as an interesting article from the Los Angeles Times reveals:

Microsoft may not have to respond to government demands for US persons' data held overseas, but it looks like everyone else (specifically, Google) will have to keep trawling their foreign data stores for US law enforcement.The Second Circuit Appeals Court ruled US government warrants don't apply to overseas data. Courts outside of the Second Circuit are finding this ruling doesn't apply to Google's foreign data storage. The most obvious reason for this is other circuits aren't bound by this decision. The less obvious reason has to do with how Google stores its data.As Google describes it, communications and data are in constant motion, moving in and out of the country as needed for maximum efficiency. When a warrant arrives, Google gathers everything it finds in its domestic servers but hands back a null response to data currently held overseas. Sometimes what Google hands law enforcement is nothing more than unusable digital fragments. Obviously, the government isn't happy with this new status quo.And it is a new status quo, as is pointed out in this ruling [PDF] by a DC magistrate judge [via FourthAmendment.com]. The ruling here aligns itself with one handed down in Pennsylvania earlier this year. In that decision -- like in this one -- the judge noted Google used to capture everything requested, no matter where it was located. It's only very recently Google has refused to chase down data (and data fragments) located in servers around the world.The process was described this way in the Pennsylvania decision:

How much does it take to cross the line into defamation? Far, far more than the plaintiff in this case would have hoped.It started as so many defamation cases do: with the president of a property association drawing the criticism of other residents. Anthony Milazzo -- winner of the condo association's presidential election (and local dentist) -- was accused of many things by residents on a self-appointed watchdog's blog. As Eric Goldman points out, the blog's owners were rather proud of the site's ability to spread criticism and harvest outraged responses.

The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing.Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available."

Former Director of National Intelligence James Clapper went from having a comfortable, shadowy job in a comfortable, shadowy office to being the face of the American surveillance state after the Snowden leaks. Instead of only being periodically hassled by a couple of Intelligence Committee members (mainly Ron Wyden), Clapper was called to account for the NSA's apparent surveillance sins. And he handled it badly.After plenty of evasive discussion, Clapper finally said, "Oh, you mean those phone records," and ushered in a new era of slightly less bulk metadata collection. But he still made the most of his speaking opportunities to pin the woes of the terrorized world on Snowden, noting his leaks "sped up encryption adoption by seven years." It was an oddly precise estimate, especially given the contradicting evidence showing terrorists hadn't really changed their communication methods in response to the Snowden leaks.Clapper is no longer the Intelligence Director, but he's still beating the encryption drum during interviews. And it appears he's aligned himself with another former government employee, James Comey. Speaking to the National Press Club in Australia, Clapper called for both harder nerding and tech companies being a (possibly compelled) source of light in the growing darkness.

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