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There was this bizarre mystery earlier this year where no one in the government would even say who was in charge of the US Patent and Trademark Office (USPTO). There had been public statements made that the Trump administration was keeping on Michelle Lee, but her picture had been deleted from the Commerce Department website, and public appearances were being canceled and no one would say what was up. Finally, in mid-March, after months of questioning, the USPTO told people that Lee was still in the job. To us, this was a good thing. The past few USPTO directors had been cut from the "more patents is always a good thing" mold, whereas Lee actually recognized that bad patents harmed innovation. And even though the last time the Patent Office got concerned about bad patents it allowed the patent approval backlog to fill up, under Lee the backlog has reached its lowest point in a decade.She seemed to be doing a great job all around -- though patent trolls and the group of patent lawyers who love the trolls were campaigning about her -- and it appeared she would stick around. That would be a good thing. For all the craziness going on in the government right now, having competent leadership at the USPTO would be one less thing to worry about. But... now it's being reported that Lee has suddenly resigned and sent a goodbye email to staff. That's bad news on the patent front. Of course, it may be ages before any new director is appointed. As I type this, of the 559 key positions requiring Senate confirmation, Trump hasn't even named a nominee for 431 of them. That number rises to 456 if you include nominees who have been announced but not formally submitted. And that doesn't even get to the 63 nominations that haven't yet been confirmed. Adding the new USPTO director to that pile may mean no new USPTO director for.... who the hell knows how long.

One of the fundamental strengths of the internet has always been its decentralization, but over time we've seen a bunch of different forces start to distort this setup. This week, we're joined by Jamie King, director of Steal This Film and host of the Steal This Show podcast to discuss the ongoing efforts to restore the decentralization of the web.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.

We've been waiting a long time for the Supreme Court to tackle the Fourth Amendment implications of cell site location info. After putting it off for as long as possible (or so it seems...), the nation's top court is finally ready to handle yesterday's hotly-disputed tech/privacy issue.

Something big happened last week in the world of music and copyright: a case about a music sample was won on fair use grounds. This basically never happens for a variety of problematic historical reasons. And yet, it did. The hip hop artist Drake was found not to be infringing on a Jimmy Smith composition due to fair use. And that's a big deal -- though the case also highlights the ongoing madness of today's copyright licensing laws (even beyond sampling). But we'll get there eventually. Let's start with the issue of copyright and sampling.For years, we've talked about the pure madness of copyright law and music sampling. If you've never seen it, the documentary Copyright Criminals, is worth your time -- as it demonstrates how a bunch of stuffed shirt lawyers and clueless judges basically killed off an entire art form by demanding money for every tiny sample, no matter how much musicians transformed that sample. Album's like De La Soul's "3 Feet High and Rising" or the Beastie Boy's "Paul's Boutique" simply could not be made today -- which is just crazy. And the absolute worst court ruling regarding sampling was Grand Upright Music v. Warner Bros. from 1991 in which Gilbert O'Sullivan sued Biz Markie for making what was effectively a hip hop parody of his one big hit. The judge in that case -- Kevin Duffy -- never seemed to have any grasp of music, art, culture or even copyright law. His ruling in that case starts off with a total confusion about the difference between "stealing" and "copyright infringement."

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The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

Back in January, Wall Street chatter started to suggest that with Trump being much more friendly to M&As, some previously-unthinkable mergers were in store for the already uncompetitive telecom market. The most commonly discussed is a new merger between T-Mobile and Sprint (regulators blocked the first attempt in 2014 because it would have dramatically reduced competition). But another major rumor involves Verizon acquiring either Comcast or Charter Communications, something that Verizon executives have publicly tried to downplay, but evidence suggests remains high on the company's agenda all the same.In fact, a report last week indicates that Charter has already turned down Verizon's initial offer. The offer -- valued at between $350 and $400 a share and well over $100 billion total -- wasn't quite high enough for Charter's liking, according to insiders familiar with the proposal:

The Intercept has just published an NSA document [PDF] (mailed to it by a government contractor [more on that in a bit]) detailing Russian interference in the US election.

A year and a half ago we wrote about a lawsuit, filed by musician/songwriter/Techdirt-hater (with a few perhaps surprising exceptions) David Lowery against Spotify, for failing to pay mechanical licenses. As we noted at the time, the more interesting thing to us beyond the lawsuit itself was how it demonstrated what an amazing clusterfuck music licensing is. That's because copyright law has not done a very good job keeping up with the times as technology changes (understatement alert).Basically, each time a new technology undermines the way licensing worked in the past, Congress ends up duct-taping on some new kind of licensing regime. There are a bunch currently, nearly all of which can be traced back to different technological innovations from the past century and a half. And, then, the internet came along. And it wasn't entirely clear how the licensing regimes of things like radio, television, player pianos, and satellite radio fit into the internet. And, some seem to think the answer is: they ALL apply. At the very least, I don't envy the "licensing" team at the various music tech companies.In our initial post, we noted that the issue seemed so complex that after talking to half-a-dozen copyright lawyers, no two could agree on what was actually happening with the lawsuit, or even if it was a legitimate case. The underlying issue had to do with mechanical licensing (a type of licensing which, as it's name suggests, goes all the way back to the early days of "mechanical" reproduction of compositions), and we were wondering how it could possibly be that a company as big as Spotify, whose entire story rested on the idea that it had properly negotiated licenses, had somehow failed to properly secure mechanical licenses. And, yet, a few months later, we noted that the Harry Fox Agency, an organization that many companies, including Spotify, Apple and others, use to handle these kinds of licenses, appeared to be scrambling to send out notices of intent (NOIs), which was something that should have happened way earlier.After Lowery's lawsuit got combined with another similar lawsuit, it's now been announced that Spotify has settled the combined lawsuit and created a $43.4 million fund to pay for the mechanical licenses it failed to obtain properly in the first place. Now, there are still some who argue that mechanical licenses shouldn't even be necessary for a streaming service, but it doesn't appear that anyone has the desire to fight that one out in court, and it's understandable why. Doing so would almost certainly lead to any service making that argument getting slammed by musicians for trying to avoid paying songwriters.Either way, Spotify has paid its way out of this and I remain baffled by the fact that it hadn't just done the right thing in the first place -- though I'm still curious if the real culprit here is the Harry Fox Agency, and if Spotify and HFA have had a long conversation or two about how this all came down. The real lesson in all of this, though, is that music licensing continues to be a complete murky, swampy mess, almost designed to make it that much harder for licensed music services to exist. While Congress dithers with silly ideas about "moving" the Copyright Office, if it wasn't to actually reform copyright laws, it should start by fixing and modernizing the crazy and overly complex licensing regimes.

As we had recently discussed, Tequila Works, makers of RiME, had promised pissed off customers that once the game was cracked and its Denuvo DRM defeated, it would release a Denuvo-free version of the game via a patch. The crack of the game came about almost immediately after this statement was made, because of course it was. To their credit, Tequila Works made good on its promise of a patch, while also blaming the use of Denuvo on Grey Box, its publisher.But there's a secondary story here. The actual impact DRM has tended to have throughout its history has been mostly to annoy legitimate customers by either keeping them from playing the game they purchased at all, or by resulting in negative impacts on game performance. For RiME, it appears the issue is the latter, and the person who cracked the game is offering details of how Denuvo tried desperately to turn the dial on its software up to eleven, almost certainly impacting performance of the game.

It's not just the FBI that can't seem to turn in its privacy-related paperwork on time. The FBI has pushed forward with its biometric database rollout -- despite the database being inaccurate, heavily-populated with non-criminals, and without the statutorily-required Privacy Impact Assessment that's supposed to accompany it. As of 2014, it hadn't produced this PIA, one it had promised in 2012. And one that applied to a system that had been in the works since 2008.Unsurprisingly, another federal law enforcement agency hasn't felt too compelled to produce PIAs for privacy-impacting programs. As Joseph Cox reports for Motherboard, the DEA's privacy paperwork is lagging far behind its intrusive efforts.

Remember when Pokemon Go was the thing? What once was a legitimate craze has certainly died down from that level, but it's not as though the augmented reality game has simply gone away into oblivion. It still has a dedicated following pumping significant dollars into it. And, as with anything in the gaming space that has reached this level of popularity, the game has its fair share of cheaters looking to automate the game for better rewards. Much like the game's Pokemon evolve as a matter of its ethos, so too is the strategy that those behind the app are employing to combat those trying to cheat the game's system.In the midst of the craze last summer, the developer, Niantic, had instituted a mass ban of players using automated systems and geo-spoofing techniques to crawl the game's landscape in search of critters to collect. The impetus for doing this is pretty clear: doing this sort of thing allowed players to route around the challenge of the game entirely and, therefore, avoid the reasons for making in-game purchases. But more recently, Niantic appears to be trying to have some fun at the expense of the cheaters instead of banning them.

Last Thursday a very silly defamation lawsuit was filed that has gotten a fair bit of attention online. I've been debating whether or not to even write it up, because it's clearly frivolous and clearly designed for publicity. And yet, there are free speech/First Amendment implications here, and those are the kinds of things that we cover. My solution is this: I am writing about the lawsuit, but I'm not directly naming the plaintiff, who has a history of fairly trollish, attention seeking behavior, of which this appears to be the latest example. It will not be hard to figure out who the person is. I will include it in the tags and you can see it in the embedded lawsuit. But I'm not naming her in this story.The background is pretty straightforward. The person in question, who is known as a strong Trump supporter (though, in the past also got attention as a strong Bernie supporter, and once said this: "I got called a literal Nazi so many times, I eventually went, Fuck it, I’ll just go all in.") was at the White House and had a picture taken of herself and someone else, standing behind a podium, with both doing the "OK" sign with their hands. There was a stupid little thing a few months back where some 4chan trolls tried to pretend that the OK sign was a symbol for "White Power". The idea was to get the press to report on this kind of thing and then laugh at how silly the press could be. Well, mission accomplished. A reporter for Fusion tweeted about the photo of these two people doing the "OK" sign were "White Power" hand signals being done in the White House.The whole thing was pretty dumb all around. No one looks good coming out of this. For what it's worth, the plaintiff in the lawsuit has been running around deleting a bunch of tweets in which she was "laughing at people being mad" at her making the OK symbol and joking about how reporters have "become so easy to troll." It's doubly ironic that she's now deleting tweets, since in her own lawsuit, she points to the fact that the defendant deleted tweets as evidence of guilt (which is also silly). But, if you're going to point to someone else deleting tweets as evidence of guilt, maybe don't go deleting your own tweets too? It also probably doesn't help her case that after the lawsuit was filed, she tweeted out a tweet admitting that 4chan "set a trap" for reporters.That tweet alone basically should help kill the lawsuit, because it's a direct admission that it wasn't actual malice. Actual malice, under the law, means that the original statement was done with "knowledge that the information was false or published with reckless disregard of whether it was false or not." When the plaintiff in the case then admits that it was a trap set to deliberately trick reporters like the defendant... uh... you have no case.But, let's get to the actual lawsuit itself, because it's just chock full of ridiculous assertions about the First Amendment.

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Yet another person is trying to abuse the DMCA takedown system to bury criticism. "Trying" is the key word here. So is "failing," because that's all "Reputation Defenders" has done so far. Since December 2015, Reputation Defenders has issued at least 38 DMCA notices. And to date (its latest request was May 23, 2017), it has yet to see Google delist a single URL.There's no information to help track down this inept defender of reputations. It could be the one promoted in this YouTube video. Or it could be this former trucker turned reputation management guru. Ultimately, it probably doesn't matter.The attempted takedowns -- with few exceptions -- target Ripoff Report. The first few efforts start with a very basic assertion of very questionable "facts."

It's no secret that Theresa May is no fan of the internet and will use basically any excuse at all to push for greater censorship on the internet. Going back to the time when she was Home Secretary, she was already slamming the internet as being responsible for ISIS and promising to censor it. Since she's become Prime Minister it's only gotten worse. As part of her manifesto for the general election coming up later this week, a key part of her party's promise was to censor the internet. And May and her friends seem to leave no tragedy unexploited. With the attack in Manchester a couple weeks back, she used it as an excuse to push the plan to kill end-to-end encryption. And with this weekend's London Bridge attack, she immediately blamed the internet and promised more censorship:

Over the last few years, the EU has been going through a pretty big copyright reform process. And it's been quite the roller coaster with some good ideas and some bad ideas mixed in at times. MEP Julia Reda of the Pirate Party has been the point person in calling out the bad ideas and pushing forward the good ones. She's had a fair bit of success, and recently noted that the EU Parliament seemed to be on the road towards a "reasonable position" on copyright. Except... Hollywood can never accept such a thing. And thus, there's an ongoing attempt to slip in some really, really bad ideas, even worse than some of what we'd seen before:

This week, our winning comment on the insightful side comes in response to our recognition of this month's stupidest patent: Ford's patent on a windshield. After one commenter said it looked strikingly similar to one from a car he used to own, Whoever won first place by taking that up a notch:

Five Years AgoThis week in 2012, Google's recently-unveiled tool for looking at DMCA takedown requests was revealing just how unbelievably stupid and bogus those requests so frequently are — but the RIAA was doing its best to blame its own failure to use the tools properly on Google, of course. Meanwhile, the government hit some speedbumps in its pursuit of Kim Dotcom when the New Zealand judge refused to rubber-stamp the extradition order, and the filings with the district court in the US revealed massive flaws in the government's case. Also, it was this week in 2012 that the New York Times revealed the extensive and fascinating details of the Stuxnet worm, confirming that it was a US-led project in conjunction with Israel.Ten Years AgoThis week in 2007, the world was still trying to get its head around YouTube and the explosion of user-generated content. For some that meant pointing out how some of it sucks as if that means anything. For others (like governments around the world) that sometimes meant banning YouTube all together, or just trying to cleverly restrict user-generated content via "free trade" agreements. In Venezuela, however, YouTube became the new refuge for a traditional TV station that was shut down by the government.Fifteen Years AgoThis week in 2002, in the much earlier days of the DMCA, the EFF released a report detailing all the negative fallout of the anti-circumvention provisions for free speech, fair use, and innovation. Governments were struggling to figure out how national laws work on a borderless web, and Silicon Valley was realizing the necessity of dipping its toe into the Washington lobbying game. Meanwhile, Blockbuster was scrambling to go head-to-head with Netflix (and I think we all know how that worked out), online banking seemed to be finally taking off in the US (though that may have just been anecdotal), and the music industry was still not listening to the many people telling it what a big mistake it was making by shutting down Napster.Two-Hundred And Twenty-Seven Years AgoWe recently noted the 1710 passage of the Statute of Anne, the original prototype copyright law — and this week we mark the formal beginning of the copyright saga in the US. It was on May 31st, 1790 that George Washington signed the Copyright Act into law. At the time, the Act was only half a page long, and applied only to books, maps, and charts — though musical compositions were routinely registered as books.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week we've got a special crossover episode with our friends at TechFreedom. Mike joined their Tech Policy Podcast recently to discuss notice and takedown systems and the future of internet copyright, and we're cross-posting the conversation as an episode of the Techdirt Podcast too.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.