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For some observers, struggling UK Prime Minister Theresa May and triumphant French President Emmanuel Macron may seem at somewhat opposite ends of the current political climate. But... apparently they agree on one really, really bad idea: that it's time to massively censor the internet and to blame tech companies if they don't censor enough. We've been explaining for many years why this is a bad idea, but apparently we need to do so again. First, the plan:

So we've long noted how giant ISPs like Comcast have repeatedly tried to claim that the FCC's fairly modest 2015 net neutrality rules utterly devastated broadband industry investment. The problem for Comcast is that any time a journalist takes the time to review publicly-available SEC filings and earnings reports, that claim is proven indisputably false. Yet, no matter how many times this complete and total fabrication is pointed out by the media, broadband industry lobbyists simply continue to repeat the claim, hoping lazy reporters regurgitate it (which still somehow happens more often than not).Not only does the broadband sector continue to repeat this claim, they contradict themselves on pretty much a monthly basis.The latest case in point: the cable industry's top lobbying organization, the NCTA, this week published a blog post patting itself on the back for the amazing improvements and investments made in the sector in recent years. The group cites a recent report by Akamai (pdf), which notes the United States is now tenth worldwide in terms of average broadband speeds. The NCTA is quick to applaud itself for the industry's "aggressive deployment of new technologies" by the cable sector:

Recently, the Supreme Court passed on a case that could have seen it address the highly-problematic civil asset forfeiture issue head on. In that case, cops seized $201,000 (and a bill of sale for a home) from two people during a traffic stop. Despite having no evidence of criminal activity, the cops kept the $201,000 and claimed it was the result of narcotics trafficking. And, despite this claim, law enforcement never arrested the couple it took the money from and charges were never brought.The Supreme Court refused to touch the appeal, choosing to let the lower courts' rulings stand (and the officers keep the $201,000). Justice Clarence Thomas had a problem with the Supreme Court letting this case slide, writing that the civil asset forfeiture system is easily-abused and provides the worst of incentives.

Some good news for free speech is emerging in Connecticut. In the first bit of good news, an anti-SLAPP law has been unanimously passed by legislators and is headed for the governor's desk.

We've made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a "FOIA terrorist" by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.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.

What were we just saying about how it's important to defend Section 230 of the CDA even when it's hard? Well, here's a hard case in New York City where the situation is very unfortunate. It appears that a woman discovered that an old sex tape of hers had surfaced online from 10 years earlier when she was 17. Someone had posted it to Tumblr, where over 1,000 people apparently viewed it -- and somewhere around 500 "reblogged" it or commented on it in some manner. This is, undoubtedly, traumatic for the woman. She appears to believe that "an angry ex" posted it to Tumblr originally, which would make this a classic "revenge porn" situation.But... rather than go after that ex, her lawyer is going after everyone who reblogged it on Tumblr and somehow got a judge to agree to force Tumblr to cough up identifying information on all of them. So let's be clear: this is clearly a horrifying story and an awful thing for the woman to live through. And, on top of that, the people who not only viewed, but further shared the video are awful human beings who should feel bad about their choices in life.But... there are all sorts of legal questions here that should raise concerns. First up: Section 230. That should have kept Tumblr from being liable if it fails to hand over this info, as it's not supposed to be held liable for the actions of its users. And that's even -- as noted by Scott Greenfield -- after Tumblr failed to show up in court and the judge gave the plaintiff a default ruling. Second issue: protecting anonymity online. As we've detailed many times before, and as the Supreme Court has stated, the right to speak anonymously is also protected by the First Amendment. There are standards for revealing identifying information on anonymous speech, but it requires those in court clear a pretty high bar in proving why it's necessary to strip that right of anonymity. It does not appear that any such high bar was met in this case. Third issue: on Tumblr, "reblogging" something is basically a click of a button and is often the functional equivalent of a "retweet" for those more familiar with Twitter. That is, it does not signal endorsement -- but really just a way of marking something that you saw.So, again, this is one of those cases where it certainly feels very difficult to defend the other side here. I have nothing good to say about the people who watched or reblogged the video. But getting Tumblr to reveal their identities so that she can proceed to sue them is a bad idea fraught with all sorts of problems.

Shooting the messenger is the most popular response to reported data breach, making the job of security researcher far more dangerous than it should ever be. The twist in the latest "shoot the messenger" story is the shooter coming back around to ask the shooting victim for help. Bad idea. Even if the body is still warm and breathing, it's probably not in the best of moods.Dissent Doe runs databreaches.net, a site that covers all sorts of exposed data stories. Sometimes, Doe is asked by those discovering security holes to disclose the information to the affected parties. (See above paragraph for why.) In early May, Doe tried to alert the Bronx-Lebanon Hospital Center about confidential patient records left exposed by a contractor. The stuff exposed was deeply personal, containing write-ups of patients' substance abuse problems or mental illnesses.This didn't go well. The hospital didn't want to talk about it or explain why a third-party had so much access to confidential health records, much less why it hadn't bothered to properly secure the hospital's database. One day after these mostly futile phone calls, someone (not specified in the post) contacted Dissent Doe to let her know the databases had been secured and thanking her for notifying them.That should have been the end of the story. But it wasn't.

In what has become standard operating procedure following a terrorist attack in any part of the (western) world, a top government official is calling for encryption backdoors. This call is being made despite the lack of evidence supporting the theory terrorists are encrypting their communications. And this particular call, being made by Australian Attorney General George Brandis, is being made despite Brandis claiming he's not calling for encryption backdoors.Shot:

So we've already noted that with the rise of streaming video competition, more people cut the TV cord last year than any other time in history. MoffettNathanson analyst Craig Moffett has noted that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. SNL Kagan agrees, noting that traditional pay TV providers lost around 1.9 million traditional cable subscribers. That was notably worse than the 1.1 million net subscriber loss seen last year. And once you factor in the fact that people are buying and moving to new homes without signing up for cable, the full numbers are actually worse.And things are only going to accelerate as companies like Dish (Sling TV), Sony (Playstation Vue), Google (YouTube TV), Amazon and others flood the market with cheaper, more flexible, streaming alternatives.Pay TV providers already lost roughly 789,000 subscribers this year. Wall Street analysts expect the second quarter to see more than 1 million subscriber defections away from cable. The second quarter is already historically the worst of the year for cord cutting, as college students cancel school service and pad the defections. This year, however, the belated rise in real streaming competition means things will be arguably worse:

Pennsylvania has some of the worst civil asset forfeiture laws in the country. At the top of list of perverse incentives? 100% of proceeds go to the agency that seized the property. As a result, all sorts of abusive forfeitures occur. In one case, law enforcement seized a couple's house because of a single $40 drug sale by their son.Legislators in Pennsylvania haven't made much of dent with their reform efforts. Attempts have been made but every bill presented has been gutted by law enforcement lobbyists before passage. Nothing has made its way to the governor's desk yet, which is just as well because the disemboweled bills are reform-in-name-only.The courts could play a part in curtailing forfeiture abuse but the system is stacked against property owners. In forfeiture cases, they're not even invited to the judicial party. The state files a suit against the property, rather than the owners, and proceeds from there. Far too many courts in this nation have punted on issues like this, kicking them back to legislators to fix the problems. And far too many legislators haven't had the strength to stand up against powerful law enforcement lobbyists.Fortunately, the Pennsylvania Supreme Court is raising the bar just a bit for local law enforcement. Granted, the bar was already laying on the ground when it grabbed it, but some upward movement of any form is appreciated. C.J. Ciaramella of Reason reports:

We recently warned that there were efforts underway to make the EU's copyright reform proposal even more draconian and ridiculous. Thankfully, the "compromise," which wasn't a compromise at all and would have made things much worse, was rejected by the Internal Market and Consumer Protection (IMCO) committee, but there was still plenty of bad stuff to be concerned about.The mandatory filtering (i.e., mandatory censorship) regime for internet platforms was rejected. That's a good thing. But, on the flip side, the so-called "link tax" requiring payments from those who link to and aggregate news to news publishers has moved forward. Two other small bits of good news were also included: the "freedom of panorama" allowing people to photograph buildings and sculptures without violating someone's copyright and also a "remix right" that will protect the public from doing basic remixing of copyright-covered works. There are still concerns about the "text and data mining" rules which limit what content can be acquired.So, basically, it's a mixed bag. Some, of course, will argue that any "compromise" will involve some good and some bad, but that assumes that we need a compromise here. Why not aim for creating a policy that's actually better overall, rather than a "compromise" solution? Europe has the chance to lead the way, but appears to have little interest in doing so. Either way, there's still more to go in this process, and other committees to approve things, so the policy still has a long way to go. Hopefully, by the end it pushes more and more to being true copyright reform, rather than just "propping up old industries" reform.

The saga of the Music Copyright Society of Kenya (MCSK) over the past couple of years has certainly been interesting to watch. In the summer of 2015, the Kenyan government responded to some fairly damning reports about just how little money MCSK was paying artists as part of its copyright collection scheme with a tongue-lashing. It also demanded that MCSK open up detailed books on its business and itemize how much it was collecting, paying artists, and paying itself in administrative fees. When the group responded with reports that might as well have been written in crayon for all the professionalism they showed, the government elected to strip MCSK of its collection license as a Collective Management Organization (CMO), instead setting up new collection groups that it for some reason thought would be less corrupt. I'm sure the Kenyan government thought that would be the end of MCSK.But nooooooope. Up until very recently, MCSK was advertising itself as the only CMO on the market, despite it not having a license to operate at all. It also was continuing to harass local businesses for royalties it was not authorized to collect. So, the court system in Kenya is now taking its turn at saying, "No, seriously, we're the government and you have to stop doing this."

We're constantly hearing about bogus takedowns thanks to bogus copyright claims, some more amusing than others. Last week we had Ariana Grande's benefit concert in Manchester getting blocked by ContentID, despite being on her own channel. And now (via Sarah Jeong) we've got the band the Dandy Warhols rightfully complaining on Twitter that the video for the single "You Are Killing Me" off of their 2016 album has been blocked on YouTube via a copyright claim from Universal Music Group. Here's their tweet:

The EFF has been instrumental in assisting ISPs in their fights against National Security Letters and their accompanying gag orders. To date, thanks to the a change in the law (in response to an NSL lawsuit by the EFF and the implementation of the USA Freedom Act) and entities like the EFF applying pressure, the public is finally getting a chance to see what's contained in these warrantless demands for subscriber info.Hopefully, the new avenues available to ISPs to challenge gag orders will result in a steady stream of released NSLs. More importantly, maybe the forced transparency will result in the FBI dialing back its use of NSLs -- something it does thousands of times a year and, worse, a way to route around FISA Court rejections.But the FBI isn't ready to give up its NSL-related secrecy yet. According to the FBI, it instituted new rules for NSLs in 2015, partly in response to the USA Freedom Act. These new rules went into effect in 2016. The problem is we have to take the FBI's word for it. It says it's exercising more oversight and control, but the policy change itself is still hiding somewhere at the back of its filing cabinets.This is one of several documents the EFF is seeking. The FBI isn't interested in handing these over, so it's decided to issue its standard "no documents here" shrug. Unfortunately for the FBI, the EFF knows its way around an FOIA lawsuit.

I don't want to view this as a disingenuous move prompted by partisanship. I also don't want to view this as the belated realization that broad surveillance powers aren't exactly something you want to hand over to your political enemies. But, given the circumstances, it's hard to believe these statements by longtime surveillance statist Dianne Feinstein are anything but politically-motivated:

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Apparently hoping to generate some support for his unpopular plan to gut oversight of one of the least competitive business sectors in America, FCC boss Ajit Pai left DC last week to do a tour of some midwestern states. During that tour he stopped in Milwaukee to talk about net neutrality with Wisconsin Senator Ron Johnson on WTMJ Radio (you can listen to the full interview here). During the interview, Pai proclaimed that the entire concept of net neutrality is little more than a "slogan," and that nobody should want government "dictating how the internet is run":

President Trump served up plenty of responses to former FBI director James Comey's testimony before the Senate. Some he served up himself, like his contradictory claim Comey was lying about everything, but somehow vindicating Trump at the same time. Some were served up by his legal representation, which weren't much better despite being composed by an actual lawyer and not being limited to 140 characters.

As we've discussed a few times, Theresa May and her colleagues have been pushing to break real encryption as part of the party's manifesto. And they've used recent terrorist attacks as an excuse to ramp up that effort -- even though the perpetrators of recent attacks were already known to law enforcement and there's no evidence encryption played any role. Earlier in the year, Home Secretary Amber Rudd had insisted that encrypted communications were completely unacceptable, and specifically namechecked Whatsapp:

This week, we wrote about the ongoing plague of skewed priorities among law enforcement agencies when it comes to bodycam footage. That One Guy latched on to a particular detail and racked up the votes for most insightful comment of the week:

Five Years AgoEarly this week in 2012, as the world continued to get its head around the recently-leaked details of the Stuxnet worm, we wondered why the usually-leak-averse White House didn't seem to be hassling anyone over these huge revelations, leading us to ask whether Chelsea (then Bradley) Manning would face the same charges if he had shared info with the New York Times instead of Wikileaks. Of course, by the end of the week, the winds seemed to be turning a little bit, with reports of an FBI investigation and calls for a hearing from Sen. Feinstein.Ten Years AgoThis week in 2007, Google was struggling to make publishers realize that its book search could be their friend by helping them make co-branded versions of the search for their own websites. Publishers, meanwhile, were pulling absurd stunts like stealing Google laptops at trade shows in order to air their misguided displeasure. Up here in Canada, following extensive and bizarre shaming from the industry over an apparent movie camcording problem, politicians introduced a new anti-camdording bill. And as the world awaited the approaching and much-hyped release of the iPhone, a number of other devices started getting labelled (both correctly and incorrectly) as competitors.Fifteen Years AgoThis week in 2002, the Church of Scientology was locked in a battle with Google over search results, the BSA teamed up with Egypt to issue a Fatwa on piracy, and Microsoft told Hollywood to get over itself and put content online. The buzz around newfangled "blogs" reached a fever pitch (and this is, I think, the first week where we started solely referring to them as blogs and never mentioning "weblogs") so of course one big question was: can you make money with them? Another big question was whether or not they count as "journalism", and apparently Berkeley's opinion was yes.Sixty-Eight Years AgoComparisons to George Orwell's Ninteen Eighty-Four are not exactly uncommon in today's political and social climate, and while I personally remember finding its senior counterpart Brave New World to be the more resonant and insightful dystopia (it's been a while since I've read either), it seems worth noting that it was on June 8th, 1949 that Orwell's masterpiece was first published.

So we've already spent a lot of time talking about how underneath the hype, the "internet of things" is a bit of a shitshow. A lack of device security and a general apathy toward anything resembling privacy standards has resulted in an absolute torrent of new attack vectors being introduced into millions of homes and devices nationwide. Many of these devices are being quickly compromised in a matter of minutes for use in historically massive DDoS attacks, and most security analysts believe it's only a matter of time before they contribute to an attack on essential infrastructure putting notable lives at risk.But the internet of things segment is facing another threat: the looming death of net neutrality.We've already watched as large ISPs have used their market power to force you to upgrade to more expensive broadband tiers if you want certain services (like Facetime) to actually work. We've watched as ISPs have imposed completely arbitrary and unnecessary usage caps and overage fees, then used those punitive limitations to give their own streaming services a leg up on smaller competitors. And we've watched as Comcast simply refused to let its broadband customers use the hardware of their choice, using a rotating crop of faux-technical, nonsensical justifications.So as the FCC looks to effectively strip away most meaningful oversight of these broadband duopolies, what will stop these massive companies from expanding these behaviors into the internet of things realm as they try to corner the home automation and security market? If your answer is "jack shit," you win!Several startups and former FCC boss Tom Wheeler warned Wired this week that the kind of anti-competitive incumbent ISP behavior we've seen already well documented in other segments will be certain to manifest itself in the IOT space, eventually. Why wouldn't companies with thirty years of documented anti-competitive behavior use the death of net neutrality to give their own (or paying partner) IOT products, a leg up?:

You may recall that earlier this year, mid-sized convenience store company Wawa filed a trademark suit against the Dawa Food Mart, a single location food market in New Jersey. At the time, we pointed out several problems with the lawsuit, including the stature of the companies being vastly different, the offerings of the companies not being particularly identical, and the fact that it was clear that the Korean owner of Dawa was not attempting to trade on Wawa's name (Dawa means "welcome" in his language). What all of this amounted to was pretty clearly a low likelihood of any actual confusion in the marketplace, which was nearly admitted to when Wawa's reps excused the legal action away as obligated under trademark law, despite that not being actually true.But, as we keep pointing out, trademark bullying like this works, and now Dawa Food Mart has agreed to change its name in exchange for Wawa not seeking damages against it.

Our posts about Denuvo have come at so furious a pace as of late that it feels silly to do any sort of recap here at the start of this post. If you aren't up on the DRM's saga, go read through our reporting, because it's a fascinating study in both hubris and inevitability in the DRM space. Suffice it to say that Denuvo was once thought to be an unbeatable DRM, except that in the past few months the timeline for breaking through it and cracking the games it is supposed to protect has been whittled down to mere days.Through it all, Denuvo has made noise about the benefit of keeping games protected even for those first few days when games initially are released. Thanks to a new player in the group battling against Denuvo, it seems that claim may come to a dramatic and violent end. This chiefly has to do with the way a group calling itself SteamPunks cracked the Denuvo-protected game Dishonored 2.

If you thought the monkey selfie lawsuit couldn't get any weirder, well, you underestimated the monkey selfie case. If you don't remember, the details of this case go back a few years to when a photographer named David Slater got some press attention by claiming that a macaque monkey in Indonesia had come up to his camera, that was on the ground, and taken some selfies. As we explained ages ago, there is no copyright in such photos, because the copyright law in the US, in the UK (where Slater is from) and in Indonesia (where the monkey is) makes it clear that copyright is only available for human creations. Slater has long disagreed about this (and we've received some threats here and there, and he's trashed us personally for claiming the lack of copyright in those images). But... the lawsuit here was a bizarre twist on that. Slater wasn't suing anyone... instead, PETA, the group known more for its stupid publicity stunts than anything it's actually done to help animals, decided to sue Slater. PETA argued that it should hold the (non-existant) copyright on behalf of the monkey. Just because. And, on this, we agree with Slater that this is insane and an abuse of the legal system.PETA is represented by a big time law firm (Irell & Manella) that apparently doesn't mind looking extraordinarily foolish for claiming that some totally unrelated third party could hold a copyright in a photograph for which no copyright can exist. Even worse, the lawyer from Irell & Manella -- again, a big time, well-regarded firm on copyright issues -- actually argued that there has to be a copyright in the image, apparently ignoring that things can be in the public domain. To make its case seem marginally stronger, PETA initially teamed up with a primatologist with a history of studying macaques, named Antje Engelhardt. This is how we found out that the macaque in question is supposedly named Naruto (though there had been some dispute about the sex of the macaque). Either way, the judge quickly and correctly pointed out that monkeys can't get a copyright and thus PETA and Engelhardt have no case at all (leaving aside the separate question of why they should get to grab the copyright should it actually exist... which, again, it does not).PETA, never one to let a good stupid publicity stunt go to waste, then appealed and put forth more nonsense about how macaques are, like, super smart, which has nothing to do with whether or not it can hold a copyright (it can't).But... things are getting even more bizarre. A year ago, soon after the appeals process began, Engelhardt dropped out of the case with no explanation. There was just a filing saying that "Dr. Englehardt will not continue as a next friend to appellant in this proceeding," leaving PETA alone as the supposed "Next Friend" of Naruto. But that seems tough to justify since in the original case, PETA leaned heavily on Engelhardt's experience to justify it's possible standing as a "next friend" of Naruto:

The Copia Institute filed another amicus brief this week, this time in Fields v. Twitter. Fields v. Twitter is one of a flurry of cases being brought against Internet platforms alleging that they are liable for the harms caused by the terrorists using their sites. The facts in these cases are invariably awful: often people have been brutally killed and their loved ones are seeking redress for their loss. There is a natural, and perfectly reasonable, temptation to give them some sort of remedy from someone, but as we argued in our brief, that someone cannot be an internet platform.There are several reasons for this, including some that have nothing to do with Section 230. For instance, even if Section 230 did not exist and platforms could be liable for the harms resulting from their users' use of their services, for them to be liable there would have to be a clear connection between the use of the platform and the harm. Otherwise, based on the general rules of tort law, there could be no liability. In this particular case, for instance, there is a fairly weak connection between ISIS members using Twitter and the specific terrorist act that killed the plaintiffs' family members.But we left that point to Twitter to ably argue. Our brief focused exclusively on the fact that Section 230 should prevent a court from ever even reaching the tort law analysis. With Section 230, a platform should never find itself having to defend against liability for harm that may have resulted from how people used it. Our concern is that in several recent cases with their own terrible facts, the Ninth Circuit in particular has found itself willing to make exceptions to that rule. As much as we were supporting Twitter in this case, trying to help ensure the Ninth Circuit does not overturn the very good District Court decision that had correctly applied Section 230 to dismiss the case, we also had an eye to the long view of reversing this trend.The problem is, like the First Amendment itself, speech protections only work as speech protections when they always work. When one can find exemptions here and there, all of a sudden none of these protections are effective and it chills the speech of those who were counting on them because no one can be sure whether or not the speech will ultimately be protected. In the case of Section 230, that chilling arises because if the platforms cannot be sure whether they will be protected from liability in their users' speech, then they will have to assume they are not. Suddenly they will have to make all the censoring choices with respect to their users' content that Section 230 was designed to prevent, just to avoid the specter of potentially crippling liability.One of the points we emphasized in our brief was how such an outcome flouts what Congress intended when it passed Section 230. As we said then, and will say again as many times as we need to, the point of Section 230 is to encourage the most beneficial online speech and also minimize the worst speech. To see how this dual-purposed intent plays out we need to look at the statute as a whole, beyond the part of it that usually gets the most attention, at Subsection (c)(1), which is about how platforms are immune from liability manifest in their users' speech. There is also another equally important part of the statute, at Subsection (c)(2), that immunizes platforms from liability when they take steps to minimize harmful online content on their systems. This subsection rarely gets attention, but it's important not to overlook, especially as people look at the effect of the first subsection and worry that it might encourage too much "bad" speech. Congress anticipated this problem and built in a remedy as part of a balanced approach to encourage the most good speech and least bad speech. The problem with now holding online services liable for bad uses of their platforms is that it distorts this balance, and in distorting this balance undermines both these goals.We used the cases of Barnes v. Yahoo and Doe 14 v. Internet Brands to illustrate this point. Both of these are cases where the Ninth Circuit did make exemptions and found Section 230 not to apply to certain negative uses of Internet platforms. For instance, in Barnes Section 230 was actually found to apply to part of the claim directly relating to the speech in question, which was a good result, but the lawsuit also included a promissory estoppel claim, and the Court decided that because it was not directly related to liability arising from content it could go forward. The problem here was that Yahoo had separately promised to take down certain content, and so the Court found it potentially liable for not having lived up to its promise. But as we pointed out, the effect of the Barnes case was that now platforms never promise to take content down. Even though Congress intended for Section 230 to help Internet platforms perform a hygiene function to help keep the Internet free of the worst content, by discouraging platforms from going the extra mile it has instead had the opposite effect from the one Congress intended. That's why courts should not continue to find reasons to limit Section 230's applicability. Even if they think they have good reason to find one, that very justification itself will be better advanced when Section 230's protection can be most robust.We also pointed out that in terms of the other policy goal behind Section 230, to encourage more online speech, divining exemptions from Section 230's coverage would undermine that goal as well. In this case the plaintiffs want providers to have to deny terrorists the use of their platforms. As a separate amicus brief by the Internet Association explained, platforms actually want to keep terrorists off and go to great lengths to try to do so. But as the saying goes, "One man's terrorist is another man's freedom fighter." In other words, deciding who to label a terrorist can often be a difficult thing to do, as well as an extremely political decision to make. It's certainly beyond the ken of an "intermediary" to determine -- especially a smaller, less capitalized, or potentially even individual one. (Have you ever had people comment on one of your Facebook posts? Congratulations! You are an intermediary, and Section 230 applies to you too.)Even if the rule were that a platform had to check prospective users' names against a government list, there are significant constitutional concerns, particularly regarding the right to speak anonymously and the prohibition against prior restraint, that arise from having to make these sorts of registration denial decisions this way. There are also often significant constitutional problems with how these lists are made at all. As the amicus brief by EFF and CDT also argued, we can't create a system where the statutory protection platforms depend on to be able to foster online free speech is conditioned on coercing platforms to undermine it.

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The copyright trolling business is getting weirder and weirder. Brad Heath directs our attention to a ruling in a bizarre case in the 7th circuit appeals court, in which we discover the existence of housing copyright trolls, who drive around looking for houses just a tad too similar to their copyright-covered designs. Really.Let's start with a little history, though. We discussed some of this a month ago, in our post about how copyright was getting in the way of a guy who wanted to rebuild his home that had burnt down, and the developer arguing that this was infringement (that situation was eventually settled with the developer backing down). As we noted in that story, back in 1990, Congress passed the Architectural Works Copyright Protection Act of 1990, or AWCPA. This was done to (sort of) bring the US into compliance with the (silly) Berne Convention on copyrights. While the 1976 Copyright Act had (for the first time) included protections for an architect's plans and drawings, this was rather limited in practice. AWCPA greatly expanded this to cover (among other things) the design of buildings. Pretty much since it passed, people have questioned why this was even needed. The US had a long history of extremely creative and innovative architecture long before 1990 (indeed, long before 1976). There was no indication that there was a need for copyright protection here. But copyright protection is what we got.A few years back, there was a nice detailed analysis of AWCPA, which noted that while many had expected cases to focus on big standout pieces of architecture, instead, many of the cases involved things like competing model home builders. And, for the most part, the courts had (thankfully!) interpreted the law pretty narrowly, noting that because much of a house is utilitarian, rather than decorative, for houses to violate AWCPA, they need to be basically identical and there needs to be some serious evidence to support copying.Apparently, this did not deter the plaintiffs in the case we're talking about today. Patrick Carmichael and Myles Sherman purchased a long-standing home developer, Design Basics, in 2009, with the express plans of using AWCPA to go after others with similar houses. And they did exactly that:

So we've noted for a long time that while net neutrality is framed as a "partisan" issue, it really isn't. Data has consistently shown overwhelming, bipartisan public support for the concept and the rules, in large part because of the way most people have been treated by marginally-competitive TV or broadband providers. But to help sow dissent among the public, large ISP lobbyists (and the lawmakers paid to love them) have been immensely successful in framing this as a hotly contested subject, usually by portraying the effort, incorrectly, as a "government takeover of the internet."A new survey from Mozilla and IPSOS once again highlights this cap between reality and common media and policy wisdom. The survey found, unsurprisingly, that over three quarters of Americans (76%) support net neutrality. When it comes to the supposed "partisan division," the survey also found that 81% of Democrats and 73% of Republicans are in favor of it:So again, this narrative that countless, angry Americans see net neutrality as "Obamacare for the internet" or "incredible government over-reach" tends to be the pervasive wisdom you'll see in the press and in most ISP policy rhetoric, but it's simply not accurate. Most people, across parties, realize the importance of a healthy and functioning internet. And, as the survey makes pretty clear, wanting to prevent giant companies like Comcast from using massive gatekeeper power to anti-competitive advantage against consumers and smaller companies isn't really all that complicated.

Paul Hansmeier -- bankrupt both in moral and financial terms -- is facing the blackness awaiting him at the bottom of a hole he dug himself. After engaging in copyright trolling, fraud, Disability Act trolling, more fraud, and generally embodying everything anyone hates about lawyers, he's now facing a multi-charge federal indictment. Fortunately for him, his representation is far more competent than he is.His public defender crafted a motion to dismiss masterpiece, epic in length and containing a multitude of creative assertions that culminated in a not-completely-wrong point: to convict Hansmeier for engaging in bad-faith litigation would create a chilling effect on the act of litigation. Not included in this analysis of the issues was the fact that Hansmeier's copyright trolling also involved fraudulent behavior, which is the sort of thing most vexatious litigants manage to avoid.It was a fun read, as far as motions to dismiss go. One over-the-top argument followed another until everything, including the reader, was exhausted.The government has responded to the motion to dismiss. [h/t Sophisticated Jane Doe] Fortunately, the government cuts to the chase. It goes after the "litigation chilling effect" argument raised by Hansmeier's lawyer. From the government's reply [PDF]:

Back in 2012, Techdirt wrote about one of the longest-running copyright sagas. It involved a 2-second rhythmic sample from the Kraftwerk track "Metall auf Metall", which was used by the German rapper Sabrina Setlur in a single called "Nur Mir". After the case had ping-ponged around various German courts for 12 years, a decision by Hamburg's highest regional court seemed to be the end of the matter, as Tim Cushing described in his comprehensive post. But in 2016, Germany's constitutional court took a look, and now a press release from the country's highest court (original in German), the Bundesgerichtshof (BGH), informs us that the case is still not yet over, and that it is moving up a level. The BGH has asked the Court of Justice of the European Union (CJEU), the top court in the EU, to clarify some basic points of law. A post on the IPKat blog runs through the details, and notes that one of the issues is:

There are several ways the many problems with American policing could be addressed, but maybe a good starting point would be the way good cops are treated. It takes a concerted effort to remove a bad officer from the force. And, far too often, an ousted officer simply finds a new agency to work for.Good cops are a relative rarity. There are several who go through their career with a minimal number of sustained complaints, but that alone isn't enough to earn them the label of "good." Far too many are unwilling to speak up when misconduct occurs. Of course, the entire system discourages officers from speaking up. Those that do are ostracized, at best. At worst, they're pressured into giving up their law enforcement career.There's no better example of law enforcement's skewed priorities than the follow cases. In the first, officers who leaked body cam footage to the press to expose an officer's abusive behavior are facing more serious consequences than the cop they exposed. (via PoliceMisconduct.net)

So as we've been noting, a lot of people remain under the impression that companies like Google and Netflix still support net neutrality, and they'll be rushing in any moment now to help thwart the FCC's latest attempt to kill the rules. In reality, Techdirt readers know that Google hasn't actually supported net neutrality since around 2010 or so. Netflix, also perceived as a consumer ally on the subject, made it clear recently that it no longer sees the need to fight for net neutrality now that it's an international video powerhouse. The company's shift from disruption engines to slightly myopic legacy turf protectors should surprise nobody.That said, Google and Netflix's departure from the conversation left many net neutrality advocates wondering if any bigger companies would be willing to lend a hand in the latest chapter in the debate. Amazon managed to answer that question this week by throwing its weight behind a July 12 "Day of Action" being coordinated by consumer advocacy group Fight For the Future. According to the group's website, Amazon will join Reddit, Etsy, the ACLU, California ISP Sonic, Mozilla, Kickstarter, BitTorrent, Github and Vimeo for a day of protest -- both online and off -- against the FCC's plan to gut the popular consumer protections.The plan appears to be to mirror the Internet Slowdown Day back in 2014. You'll recall that that effort, which involved numerous major websites warning their visitors about the threat to net neutrality via site banners, helped convince Tom Wheeler to stop half-assing things, and classify ISPs as common carriers under Title II of the Communications Act (giving them the adequate legal authority to enforce the rules). His decision was subsequently supported by the courts.The problem, of course, is that Tom Wheeler was a bit of a rare bird in technology government policy circles. In that when presented with quality evidence that conflicted with his world view, he was actually willing to change his position and do the right thing -- even in the face of giant ISP lobbying pressure. It's part of the reason that Wheeler went from dingo to internet hero in relatively short order, breaking free of a long line of timid, bipartisan telecom industry sycophants heading the agency. There's zero indication so far that new FCC boss Ajit Pai has any of the qualities that made Wheeler popular.Still, the companies and consumer advocacy firms hope the effort can still generate something vaguely resembling SOPA-esque accountability for Pai's plan to ignore the public interest and kill the rules:

Last time we checked in with Kellogg's, makers of various breakfast and cereal products, they were happily sending out threat letters to a Mayan archaeology group that is only involved in the breakfast industry insofar as its employees eat breakfast, over its inclusion of a toucan bird in its logo. While Kellogg went on to settle that dispute, in light of its trademark claim being immensely dumb and a PR nightmare, the whole episode still left many of us wondering just how knowledgeable Kellogg's legal team is on trademark matters. Archaeology teams are not, generally, part of the breakfast or food industries. This seemed to be either bullying without a purpose or a brand of criminal stupidity at work. But, hey, even megalithic corporations with unlimited legal resources make mistakes.Except we're now back to scratching our heads, as Kellogg's is going to court against an Australian tennis player because he wants to brand himself as "Special K."

Back in January, we noted that six journalists had been arrested while covering protests in Washingto DC on inauguration day. It is troubling enough that this kind of thing has been happening with increasing frequency in the past few years (a bunch of journalists were arrested while covering the Ferguson protests, for example). And as bad (and unconstitutional) as it is to arrest these journalists, usually any charges are soon dropped. However, it appears that at least one of the reporters arrested for covering inauguration protests, Aaron Cantu of the Santa Fe Reporter, has now been indicted with prosecutors accusing him of participating in violence related to the protests:

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As we've pointed out for many, many years, Senator Ron Wyden has been banging the drum, asking the Director of National Intelligence to reveal how many Americans are having their communications swept up under Section 702 of the FISA Act. We have posts going back to 2011 of Wyden asking for a number and being stonewalled. At the time, many tried to brush it off as nothing to be concerned about -- after all, the "F" in FISA is supposed to stand for "Foreign" and so it was assumed (incorrectly) that Americans' communications were mostly unlikely to be caught up in the matter. Of course, as we now know quite well, that's not even remotely true. Between the Snowden revelations and other declassified FISA court orders, we know that tons of Americans had their communications swept up, without any kind of warrant. Throughout all of this time, Wyden kept asking that question over and over again, without getting any answers. Last year, others finally joined in, with a large bipartisan group from the House Intelligence Committee all (finally!) asking the same question.Eventually, late last year (after years of stalling), then Director of National Intelligence, James Clapper, said that his office would deliver an estimate to Congress. Indeed, the House Judiciary Committee worked with Clapper's office to set up the parameters for that number, noting that it needed to be provided "early enough to inform the debate" about the renewal of Section 702, and had to be provided in a format that could be provided to the public, rather than kept in secret. That estimate never came. This issue came up again during the hearings for Clapper's replacement, Dan Coats, who also said he would try to get Congress a number. Specifically, he told Wyden: "I'm going to do everything I can to work with Admiral Rogers in NSA to get you that number."As we noted, two months ago, another bipartisan letter was sent to Coats, this time signed by both the chair of the committee, Bob Goodlatte, and the ranking member, John Conyers. That generally means that the Committee is getting serious about stuff. In the letter, they noted that they were still waiting on Coats to deliver this number and expected to see it soon.Then, yesterday, there was a public Senate Intelligence Committee hearing over the issue of the 702 renewal. While most of the press is focused on the refusal of those testifying to say whether President Trump had spoken to them about various investigations concerning Russia, there was something else concerning that was brought up. Coats, despite his earlier promises and the promises of his office, is now saying that it would be impossible to give a number.Not surprisingly, for the folks in Congress who have been insisting on getting this number (and giving it to the public), this... did not sit well. When it was Senator Wyden's turn to question the panel, he went off on Coats for going back on his word.

Soon after the attack in Manchester, the UK government went back to its "encrypted communications are the problem" script, which it has rolled out repeatedly in the past. But it has now emerged that the suicide bomber was not only known to the authorities, but that members of the public had repeatedly warned about his terrorist sympathies, as the Telegraph reports:

If you want to see what the US broadband sector really looks like, you should take a look at West Virginia -- a state where regional incumbent Frontier Communications holds so much sway over the state legislature, efforts to improve connectivity in the state have spent a decade in the gutter. Local Charleston Gazette reporter Eric Eyre has quietly done an amazing job the last few years chronicling West Virginia's immense broadband dysfunction, from the State's use of broadband stimulus subsidies on unused, overpowered routers and overpaid, redundant consultants, to state leaders' attempts to bury reports highlighting how a cozy relationship with companies like Frontier, Verizon and Cisco has led to what can only be explained as systemic, statewide fraud on the taxpayer dime.But things haven't been going all that well for Frontier lately. Frustrated customers are leaving in droves (assuming they have the option) after the company bungled an acquisition of Verizon's unwanted DSL customers in Florida, Texas and California. It's also now saddled with debt from that deal, which prioritized growing bigger over commen sense. And employees say morale at the company is at an "all time low" after executives slashed all bonuses and merit pay increases -- but only for lower-level employees.There's some indication that these problems are loosening the telco's traditionally iron grip on the West Virginia legislature. House Bill 3093, recently signed into law by West Virginia Governor Jim Justice, aims to improve broadband competition in the state through a combination of utility pole reform, and efforts to encourage local broadband community co-ops. Since it would have boosted competition in the state, Frontier obviously lobbied against the measure, hoping to keep its geographical fiefdom intact. It failed.Eyre at the Gazette now notes that Frontier has responded by firing a six-year company executive and West Virginia Senate President (yes, at the same time) Mitch Carmichael for voting in favor of the measure.So you should get a sense of what things are like in West Virginia just by the fact that Carmichael was deciding major state telecom issues while being a full-time employee of Frontier Communications. And Carmichael had been deciding on telecom-related issues for years with nobody apparently thinking that his recusal from some of these issues might just be a good idea.This is so crazy that we should repeat it just so it sinks in: Carmichael was both a full-time employee of Frontier while also being the President of the state Senate, and constantly pushing for policies that favored his employer. And few, if any, state leaders apparently thought this was a problem. And it has been: Carmichael has long been an opponent of community run, municipal broadband, and had also recently voted down an effort that would have created a statewide broadband internet network, one that would have dramatically impacted Frontier's business interests.Carmichael had just gotten a raise as well after almost being lured away by a Frontier competitor, so the firing surprised him. Carmichael says he also refused to sign an NDA demanded of him by the company to prevent him talking about his termination:

In the wake of Saturday's horrific attack on London—the third high-profile terrorist incident in the United Kingdom in the past three months—British policymakers were left scrambling for better ways to combat violent extremism. Prime Minister Theresa May called for new global efforts to "regulate cyberspace to prevent the spread of extremism and terrorist planning," charging that the internet cannot be allowed to be a "safe space" for terrorists.While May's desire for a strong response is easy to understand, her call for more expansive internet regulation and censorship is wrongheaded and will make it harder to win the war against violent extremism.May didn't specify the details of her proposal, but to many observers it was clear that she's asking for sweeping new powers to compel tech companies to help spy on citizens and censor online content. Unfortunately, this isn't simply a knee-jerk response to horrible circumstances, but reflects a longstanding ambition of May's Conservative Party to impose draconian controls on cyberspace.As home secretary, May introduced and oversaw passage of the Investigatory Powers Act, legislation that civil-liberties advocates have called the worst surveillance bill of any western democracy. Following last month's attack in Manchester, May's government purportedly briefed newspapers of its intent to invoke the law to compel internet companies to "break their own security so that messages can be read by intelligence agencies." David Cameron, May's predecessor, argued for internet companies to be compelled to create backdoors in their software so that there would be no digital communications "we cannot read."Even if the U.K. government got the expansive new powers it seems to want, there's no reason to think it would stop terrorism in its tracks. Researchers have found that suicide attacks are a social phenomenon involving support networks that radicalize the perpetrators. Most people in these networks aren't themselves terrorists. Allowing them to operate openly makes it easier both for moderating voices to intervene and for intelligence agencies to track. If the communities are forced underground and offline, they'll be harder to infiltrate and monitor.Moreover, there's no way to create communications backdoors that only apply to bad guys. While committed terrorists could easily adapt to open source or analog means of communication in response to a government-mandated backdoor, law-abiding civilians would be exposed to new cybersecurity risks and have their economic and civil liberties compromised. Experience has shown that backdoors inevitably will be hacked, making everyone less safe. As the U.S. House Homeland Security Committee noted in its report on the topic, all of the proposed solutions to access encrypted information "come with significant trade-offs, and provide little guarantee of successfully addressing the issue."The policy also would have serious consequences for the United Kingdom's global competitiveness. As the MIT report "Keys Under Doormats" notes, mandating architectures that allow access to encrypted communications "risks the real economic, geopolitical, and strategic benefits of an open and secure internet for law enforcement gains that are at best minor and tactical." One of the factors behind the West's dominance in technology and innovation is that its apps are not government-sanctioned, as they are in China or Russia. After all, what consumer would want to buy an app or device that had a built-in backdoor?All this isn't to say that governments should stand back and do nothing to stop terrorist activity online. It's illegal almost everywhere in the world to provide material support to terrorist activities, not to mention the obvious crimes of murder and conspiracy. But terrorists don't have free reign in cyberspace. In addition to the United Kingdom's comparatively robust domestic snooping powers, the nation's Counter Terrorism Internet Referral Unit (CTIRU) already coordinates flagging and removing unlawful terrorist-related content. Since its launch in 2010, it has worked with online service providers to remove a quarter million pieces of terrorist material.There also are already international agreements to help authorities uncover and track people engaged in these activities and to exchange intelligence about them across borders. For instance, Mutual Legal Assistance Treaties (MLATs) allow the cross-border flow of data about criminal matters between investigative bodies. While the current MLAT agreements can be slow and cumbersome, efforts are underway to create a new process and allow U.K. authorities to go directly to U.S.-based online service providers, upon meeting certain conditions.The United Kingdom also is already a key part of the national security data-sharing arrangements between the "Five Eyes," under which intelligence from Canada, Australia, New Zealand and, of course, the United States is shared almost in real time. While the details are classified, there is evidence that this intelligence sharing has prevented numerous attacks.To her credit, May emphasized the importance of improving these sorts of international agreements in her speech about fighting terrorism. This is an area where we can and should make positive steps toward reform, increasing the capacity for intelligence sharing in real time and improving cooperation, while ensuring that the right checks and balances are in place.Combating violent extremism online doesn't have to be a Pyrrhic victory for democratic societies. Certain risks are unavoidable, and no level of internet regulation will stop the most determined attackers. But there are real steps policymakers can take now to enhance our tools without sacrificing our security, liberty or global competitiveness in the process.Zach Graves is tech policy director and Arthur Rizer is national security and justice policy director for the R Street Institut

Another day, another sigh-inducing trademark dispute in the craft beer industry. As we've discussed for some time now, the beer industry has a massive problem on its hands in the form of a deluge of trademark disputes between competitors. This has largely been the result of a huge uptick in craft brewers opening new businesses saddled alongside the tradition of creatively naming different beers and the limitations of the English language. Sometimes, however, you get a good old fashioned trademark dispute where one side is simply claiming similarities so tenuous as to be laughable.Introducing Shipyard Brewing Co., which is suing Logboat Brewing Company claiming that because the latter both uses an image of a schooner on its label for its Shiphead beer brand and because the name of the beer includes the word "head" at all, that its a trademark violation. Let's deal with each in order, mostly because simply putting the beer labels side by side should allow us to take the schooner portion of the claim off the list of things we'll take seriously quite easily.

Joel Winston -- current consumer protection lawyer and former New Jersey attorney general -- is offering up the periodic reminder that terms of service are rarely written with the user's best interests in mind. Winston highlights the demands Ancestry.com makes in exchange for using its paid service. Two-thirds of those highlighted are standard operating procedure for far too many services. [h/t War on Privacy]The first is the perpetual license users grant Ancestry.com for exploitation of their DNA data. Again, this sort of thing can be found at many services heavily-reliant on users' contributions. And many of those not only want your money, but the opportunity to sell off data as well.

So we've discussed at length how somebody is gaming the FCC's comment system, using a bot to post hundreds of thousands of fake comments in support of the agency's plan to kill net neutrality. We've also made it pretty clear that the FCC doesn't appear interested in doing much about this, because these bogus (and in some instances dead) people "support" the FCC's plan to gut consumer protections governing the already uncompetitive broadband market.I've had some first-hand experience with the FCC's apathy, given I've been trying to get them to remove (or even address) a post supporting the death of net neutrality made in my name, falsely claiming I run an "unregistered PAC" and am upset that Title II "diminished broadband investment, stifled innovation, and left American consumers potentially on the hook for a new broadband tax" (none of which is true, it should go without saying). While the agency says it's looking into my complaint, you simply don't get the sense that tackling public proceeding comment fraud will be a top agency priority anytime soon.Initial analysis of the FCC comments suggest it's largely the anti-net neutrality side that's been engaged in chicanery at any real scale. But in an obvious attempt to try and deflate that media narrative, there's a growing attempt to insist that massive, industrialized abuse of the FCC's net neutrality comment docket is something both sides are engaged in. For example, a report released last week (pdf) by the National Legal and Policy Center (NLPC) policy and lobbying think tank proclaimed that "hundreds of thousands" of bogus pro net neutrality comments were filed with the FCC, most of them coming from the EFF.A report over at the Daily Caller quickly parroted the report's findings:

At a time when Europe is pushing for much greater filtering and takedowns, it's worth a reminder that these kinds of systems pretty regularly takedown perfectly legitimate content -- either content that is fair use or that is licensed. Case in point: this past Sunday, Ariana Grande held a huge benefit concert in Manchester called One Love Manchester. As you no doubt know, a few weeks back there was a bombing at Grande's concert in Manchester, and her decision to put on a massive benefit concert right back in Manchester just a couple weeks later is impressive.Except, for at least some period of time, the copyright gods didn't want you to see it. Grande streamed the whole thing via her YouTube account. And... the concert was then promptly shut down by by Warner Music and Sony Music, saying that the stream violated their copyrights.

There's been plenty of talk about the rapid arrest of Reality Winner (and, yes, people are still baffled that a real person is named this) and the fact that the tracking dots on printers may have helped track her down (along with the fact that she was one of only a few people who had recently touched that document). Fewer seem to have focused on the details in the leak, about how the Russians quite likely hacked e-voting vendors to a much deeper level than suspected. That seems like really important information for the public to understand -- especially for those of us who have been screaming from the mountaintops for years about the lack of security in e-voting machines.In short: this certainly feels like a completely justifiable leak to better inform the public of something important, and done in a way that is unlikely to harm any national security efforts or assets. It seems to fit right in with the whistleblowing tradition of other leakers. And, yet, Reality Winner is charged under the Espionage Act. And, as we've also discussed for years, the Espionage Act explicitly blocks people from using the public interest or whistleblowing as a defense. Such information is simply inadmissable.As Ed Snowden has now pointed out in response to the charges against Winner, this remains a huge threat to a free press.

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The debate over the renewal of Section 702 surveillance continues, but a group of legislators is looking to short-circuit the discussion. Senator Tom Cotton and a whole bunch of Republicans have introduced a bill that would ensure this discussion is never raised again. [h/t Julian Sanchez]

In the wake of the FCC's attempt to kill net neutrality, ISPs like Comcast have been working overtime trying to convince the press and public that nothing bad is actually happening. Shortly after the FCC voted to begin killing the rules, Comcast posted a trifecta of press statement, comment from company CEO Brian Roberts and commentary from top lobbyist David Cohen all saying the same thing: nothing bad is happening, and whatever happens -- Comcast really, truly adores transparency and will work tirelessly to defend the open internet:The fact that this runs in stark, documentable opposition to reality and Comcast's behavior over the last twenty years isn't something you're supposed to dwell on. Cohen (the company gets mad at us for pointing out he's still a lobbyist despite using the title of "Chief Diversity Officer" to dodge lobbying accountability rules) has also been spending the last month or so trying to argue that we can still have net neutrality despite walking back the FCC's authority over broadband providers:

To date, the most remarkable aspect of the Denuvo story was the very brief stint it had as a successful DRM. Brief is the operative word, of course, as the past six months or so have seen Denuvo's vaunted status devolve into one more typical of DRM stories, with defeats for the security software coming at rates measured in days and weeks of a game's release.But now things have taken a turn towards the ironic. A security software firm called VMProtect, which makes software to protect against reverse engineering and developing cracks of applications, is accusing Denuvo of having used its software without properly licensing it. This is the kind of thing that folks who support DRM tend to call piracy. And, thus, Denuvo may have "pirated" another company's software to make its anti-piracy DRM.

The surprising story that quickly followed the somewhat-less-surprising Intercept leak was the arrest of Reality Leigh Winner for the leak of the document. It was an incredibly fast leak investigation that apparently began when The Intercept reached out for comment after obtaining the document on May 30th.There's been a lot of talk that The Intercept acted carelessly when speaking to government officials and burned its source. But the evidence trail laid down by the FBI's affidavit suggests Winner did most of the burning herself. The document given to The Intercept was either an original printout or a scan of it. It showed telltale creases where it had been folded and placed into an envelope by the leaker.More importantly, the document contained something else: data that indicated where and when the document had been printed. This made it much easier to link Winner to the posted document. Rob Graham of Errata Security walks through the steps he took to decipher the physical metadata created by the NSA printer used by Winner. Printers -- and not just those owned by secretive government agencies -- can help rat out leakers.