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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.

Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

More bag-sorting and intrusiveness awaits more flyers thanks to the DHS and TSA. The TSA has already banned electronic devices larger than a cellphone from being brought on board flights originating in 10 predominantly Muslim countries. Now, it wants to extend that ban to European nations. For now, the new inconvenience is in its test phase.Rather than make things safer, officials now want lithium ion batteries and other similar fire hazards to be stowed in areas where no one's likely to notice a developing fire and subject them to the sort of abuse airline employees save for items they haven't personally purchased. All in the name of safety, and all in the name of unspecified threats.The additional stupidity is this would only apply to flights in and out of the US, but not to domestic flights… at least not at this point. DHS boss John Kelly sort of clarified this on Fox News last week, utilizing a very governmental vagueness.

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Since the FCC's decision to begin gutting net neutrality earlier this month, broadband providers have been busy as hell trying to convince the public that gutting these essential consumer protections is just no big deal. We, of course, had that horrible Verizon video in which the company not only falsely claimed that net neutrality isn't being killed, but tried to pretend ISPs like Verizon didn't just spend a decade trying to kill it. Other ISPs like Comcast have penned similar "nothing to see here, guys" missives, in which they insist this whole thing is all some kind of big misunderstanding.While these ISPs use polite, sensible-sounding public statements to insist that nothing's really changing and none of this will hurt consumers (that's false, if it needs repeating), their usual assortment of think tankers, astroturfers, lobbyists, consultants, hired economists and other "doller per holler" policy folks are under no such constraints, and have been busy taking an already hyperbolic debate to an entirely new level.For example, just two days removed from the recent Manchester bombing, Forbes ran this abomination of an attempt at prose by former FCC Commissioner Harold Furchtgott-Roth, who now works at the ISP-funded Hudson Institute. In none-too-subtle fashion, Furchtgott-Roth uses the Manchester attack to suggest that none of this bloodshed would have happened if it wasn't for net neutrality protections:

It's the normal state of things, but familiarity makes it no less enjoyable to observe: power changes hands in the White House and suddenly everything the previous president authorized with the support of his followers becomes a dangerous weapon in the hands of the new guy. The only surprising thing is the cycle never ends.As has been noted here, longtime fans of government surveillance under Obama were suddenly deeply concerned about Trump's command of the nation's spycraft. Then there were all those Republicans who helped assemble the surveillance machinery in the wake of the 9/11 attacks, expressing their displeasure with the FBI, NSA, and others using powers they'd granted them. Domestic surveillance is fine, they argued. Years later, it's NIMBY but for recently-elected presidents.But there's a darker current running below the irony and schadenfreude. Both sides applaud possible surveillance abuses when they harm their political enemies, but act like these are Espionage Act violations when the target is one of their own. The ultimate problem isn't the right/left, Republican/Democrat partisan divide and the hypocrisy that goes with it. The problem is the abuse/misuse of surveillance powers for political gamesmanship.The FBI didn't go rogue after Trump canned Director James Comey in the most duplicitous, chickenshit way ever. It had been coloring outside of the lines for months, if not years, with Comey making the most of his many grandstands to push his personal agenda at the expense of the agency's. He routinely made statements others in the DOJ have refused to back up and broke protocol (twice) by openly discussing investigations that resulted in no criminal charges.The Trump presidency has been notable for the number of leaks it has prompted, which seem to spring from nearly every agency with access to collected intelligence. The reaction to the leaks by the Trump Administration has been awful in pretty much every way, and the looming threat of prosecution by Jeff Sessions' god-guns-and-government DOJ hasn't done much to slow the bleeding.What's being overlooked is the danger this autonomy poses. While some would love to see every presidential administration undermined by intelligence leaks [raises hand], this isn't always a good thing. Nor is it something that should be cheered on without reservation when it's the other side sustaining damage. Agencies with access to domestic communications (and there are a lot of them, thanks to loosened information-sharing restrictions) have their own agendas to push, too, and they're rarely directly aligned with either party.As Julian Sanchez notes, partisans need to stop cheering when things go their way and crying foul when they don't. The problem goes far beyond politics and stabs at the heart of rights and protections the government is supposed to be ensuring for everyone.

One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.

This week, both winning comments on the insightful side came in response to our post about more legislators jumping on the "blue lives matter" bandwagon. Since the top comment was actually further down the same thread as the runner up, this week we'll present the winners in reverse order, starting with the second place winner from Anonymous Anonymous Coward who swooped in with the first comment on the post:

Five Years AgoThis week in 2012, the jury in the Oracle/Google patent trial ruled that there was no infringement, while Judge Alsup revealed his coding knowledge on the copyright side. MPAA boss Chris Dodd was saying they should stop calling infringement "theft" despite the MPAA's own website doing exactly that many times, Congress proposed giving ICE another ten million dollars to fight intellectual property infringement, and TV networks were suing DISH with the insane argument that skipping commercials is copyright infringement. Meanwhile, five years before its recent successful reusable rocket tests, SpaceX was making its first successful cargo run to the ISS, marking a significant milestone in private space travel.Ten Years AgoThis week in 2007, the proprietary video services launched by various companies were continuing to struggle and die off, with CNN dropping its paid online video service while Time Warner struggled with its own, and Budweiser got ready to kill the ill-fated Bud.TV. The RIAA was trying to close the "radio loophole" by convincing Congress to force radio stations to pay royalties for playing music (leading some to notice that the industry was similarly worried about the "jukebox loophole" nearly half a century earlier), even while it was carefully backing down on new webcasting royalty rates that would have killed smaller webcasters.Fifteen Years AgoThe webcasting battle was not new — five years earlier this week in 2007, an equally disastrous attempt to enact webcasting royalties fell through. Meanwhile, a virus that aimed to stop the trading of infringing material was spreading on the Kazaa network, Hollywood was trying to get copy protection built into all analog-to-digital converters, and you could cut the tension between Silicon Valley and Hollywood with a knife. Google launched its now-defunct Labs page, authoritarian regimes were wielding the power of the internet in frightening new ways, and the still-DVD-based Netflix went public, joining the ranks of stocks-you-really-wish-you'd-bought.One-Hundred And Seventy-One Years AgoThey've done good reporting and bad, they've struggled to adapt to the digital world, and we've often criticized them here on Techdirt — but nevertheless the Associated Press is an old and proud fixture of the journalistic world, and it was on May 22nd, 1846 that it was founded by five New York City dailies to share the cost of covering the Mexican-American War.

Not wanting to be outdone by idiots in Congress, two idiot senators from the great state of Texas* are pushing their own "Blue Lives Matter" legislation. Senators Cruz and Cornyn have (re)introduced the Backed and Blown "Back the Blue Act," which adds mandatory minimums to any act of violence against most government officials. Oh, and for extra fun, automatic death penalty considerations for anyone charged under this act.I'll get out of the way and allow Senator Cornyn to toot his own horn:

The thing about biometric scanning as a security practice is it is one of those things that sounds great. "Lock your phone with your fingerprint or facial scan", shout the manufacturers and security companies that came up with the scans. Well, shit, thinks the average person, if nobody else has my face I'm in the clear. Even when movies and television tackle the subject, the methods for breaking the biometric security typically involve convoluted plans and insane stunts so brazen they would make Danny Ocean's jaw drop.The problem is that the hype around this tech is typically more effective than the tech itself. Fingerprint scanners are easily fooled and facial recognition software has been shown to be defeatable by, and I swear this is true, printouts of a person's face. That isn't security, it's a punchline. So, when Samsung and its security partner decide to pimp the iris-scanning security feature of the Galaxy S8 with language like "airtight" and suggestions that owners of the phone can "finally trust that their phones are protected", one would expect those claims to be backed up by strong technology.It isn't.

We're going to jump right into this one without too much of a preamble, other than a quick refresher on what trademark law is designed to accomplish and what triggers a concern for infringement. The idea behind the law itself is to allow companies to utilize unique identifiers, be it name or branding, in order to distinguish itself from competitors by monopolizing those trademarkable items. The chief concern regarding infringement, therefore, is real or potential customer confusion in the marketplace as to the source of a particular product or service. With that out of the way, let's have some fun discussing how a recent lawsuit filed by PayPal against Pandora gets just about everything wrong with respect to the above preamble.

You may recall that when Charter proposed spending $79 billion to acquire Time Warner Cable and Bright House Networks last year, the usual promises of job creation, lower prices, better broadband, and improved customer service came along for the ride. The problem: none of those things have materialized under the new company (Spectrum). In fact, like so many telecom mergers, many customers of the nation's now second-largest cable provider say Charter's prices have gotten higher and the company's customer service (already ranked among the worst in any industry) has somehow managed to get worse.With this week being the one-year anniversary of this mega-deal, customers in acquired territories say the company is engaged in yet another round of blanket rate hikes. In Lexington, Kentucky, for example, Spectrum customers say they're being forced to pay $20-$40 more (plus assorted fees to swap out their cable boxes) for effectively the same service. And when they call in to complain, they're discovering that part of the new Spectrum experience involves a company that's no longer willing to haggle on promotions (because it doesn't have to):

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.Earlier this month, I helped Techdirt's think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It's also why sites like Yelp let users post anonymously, because often that's the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.But as we also see, people who don't like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that's a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can't always fight them -- for instance, like DMCA takedown notices, they may simply get too many -- but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user's speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms' efforts to stand up for their users even more risky and expensive than they already are.So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.

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Remember, to hear the MPAA tell it, piracy is really killing the movie industry. It's been whining about piracy for basically my entire lifetime, and constantly predicting its own demise if "something" is not done. And, despite the fact that Congress has repeatedly obliged Hollywood in ratcheting up copyright anti-piracy laws and despite the fact that the MPAA has been clearly wrong repeatedly (such that the new technologies it feared actually helped expand Hollywood's business), the studios continue to push for awful changes to copyright law, citing the horrors of piracy.And yet... now it's coming out that Disney not only had a good year last year, it had the best year ever for a movie studio. Not surprisingly, Disney put out its own glowing press release over this:

By now, most Techdirt readers realize that far too many members of Congress don't so much have thoughts about technology policy, as they do bulleted mental lists of talking points provided by a lobbyist happy to do their thinking for them. That has been particularly true when it comes to telecom policy over the last few months, especially the GOP's ham-fisted attack on popular consumer broadband privacy protections and the telecom sector's self-serving frontal assault on net neutrality.Over the last few weeks, as the FCC was preparing to begin dismantling net neutrality rules, House lawmakers received an email from GOP leadership educating them on how to best defend the agency's extremely unpopular decision. Included in that e-mail was an attached list of talking points (pdf) making all manner of disengenous claims about the net neutrality debate:

People in Australia have been asking for the introduction of fair use as part of a broader copyright reform for a long time. Techdirt first wrote about it four years ago, then again last year, when the Australian Law Reform Productivity Commission produced one of the best reports ever written on the topic by a government body. Amazingly, most of its ideas, including a call for fair use, survived in the final version of that document, which appeared at the beginning of this year.However, it turns out that those are just a few of the six Australian government reports which have recommended adopting fair use for copyright in Australia. That emerges from a new entry on the English-language Wikipedia, called "History of fair use proposals in Australia". Its appearance is not simply down to some random urge to wiki: it's part of a new campaign by Wikipedians in Australia to put pressure on the government there to bring in fair use after so many official calls to do so. A post on the Wikimedia blog explains the current copyright situation in Australia:

We've heard many stories at this point about video game producers attempting to use copyright and the DMCA as a censorship tool against criticism. As it happens, the frequency of these stories has tapered off somewhat as best as I can tell, even as the indie gaming scene has resulted in an explosion of small gaming studios. The reason for that delta is probably that the gaming community as a whole has become both far more educated and vocal about any attempts to use copyright as a censorship tool. Rightly or wrongly, honesty and transparency in gaming reviews and commentary has become something of a thing the past few years and one of the possibly unintentional results of that campaign has been for attempts at stifling criticism about games to be top of the average gamer's mind.Which brings us to Wargaming, the studio behind World of Tanks. If you have not heard about the drama from last week yet, it began with a YouTuber called SirFoch, who issued a scathing and expletive-laden review of a specific tank customers could purchase withing the game.

We've already discussed a memo read by some FBI officials that supposedly was a record of an Oval Office conversation between former FBI Director James Comey and Donald Trump apparently contains the president asking after the possible prosecution of journalists for publishing leaks. Hearsay squared, but still in line with Trump's antagonistic relationship with free speech.There's not much popular support for treating journalists like criminals just for doing their job, but there appears to be plenty of administrative support for the idea. Comey claimed he wouldn't go after journalists for publishing leaks -- something he said with one side of his mouth while redefining journalism to exclude Julian Assange and Wikileaks, which the DOJ is apparently considering pursuing charges against.But that's not the extent of the new administration's Bullets For Messengersâ„¢ program. As Betsy Woodruff reports for The Daily Beast, the DOJ is looking to crack down on leaks, leakers, and -- given its inability/unwillingness to subject itself to accountability -- whistleblowers.

A few weeks ago, we wrote about Cloudflare's decision to punch back hard against a patent troll, Blackbird Technologies, that had sued the company over a questionable patent (US Patent 6,453,335). Beyond just challenging the claim of infringement, the company also filed ethics complaints against the lawyers who run Blackbird, noting that the company appeared to be a law firm masquerading as a company, and breaking a number of local rules about law firms and "buying" a proprietary interest in a lawsuit. At the same time, Cloudflare set up a $50,000 fund to offer prizes to people who could find prior art not just to invalidate the patent that Cloudflare was sued over but also every other patent held by Blackbird Technologies.Apparently, the company has now received a ton of submissions -- many of which it claims are quite thorough. And it's upping the ante. An anonymous donor has agreed to match the $50,000 fund, and so now Cloudflare is offering $100,000 for prior art to invalidate Blackbird Tech patents. The company says that it's received 140 separate prior art submissions so far, targeting 18 of the 38 patents and applications it knows about, but wants to go after the rest as well.

Just last week, we reported on how a British human rights activist was held at London's Heathrow airport by UK border police, and risked prison for failing to hand over his passwords. Now we learn from the Independent about a Brazilian journalist, Diogo Bercito, who was detained at Manchester airport for reading a book during his flight there:

It's no secret that there are those in the current UK government who are just itching to kill encryption. Earlier this year, Home Secretary Amber Rudd made some profoundly ill-informed comments about how encryption on the internet was "completely unacceptable" and saying that they needed to stop companies from providing end-to-end encryption. And, in the recently leaked Tory Manifesto, it was made clear that the current government sees breaking encryption as a priority:

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You may remember, a few years ago, Verizon attempted to start its own tech blog, called "SugarString," where the founding editor they hired was telling potential reporters they couldn't write about net neutrality. After that got mocked around the web, the whole idea of SugarString faded away. However, these days, Verizon actually owns a ton of content sites. It bought AOL in 2015, which already owned the Huffington Post, Techcrunch, Engadget and more. More recently, of course, it bought Yahoo as well. Suddenly, Verizon owns a ton of tech reporting.And here's the amazing thing: some of the best reporting about how awful Ajit Pai's net neutrality proposal is... is coming from those sites now owned by Verizon. For example, over at Yahoo News, Rob Pegoraro has been doing a great job debunking many of Ajit Pai's claims about the history of the internet. In particular, Pai and his supporters keep insisting that the move by then FCC boss Tom Wheeler in 2015 to reclassify broadband under Title II upset a consensus going back to the Bill Clinton years that broadband was not under Title II. Except that's... just wrong:

Like clockwork, every few months you'll see a Comcast executive pop up like a meerkat to proclaim the company has seen the error of its ways, and will henceforth focus on dramatically improving its historically abysmal customer service. In 2014, that involved the well-hyped hiring of a new "customer experience" VP who was supposed to "reimagine the customer experience and ensure that we are delighting our customers at each touch point." But these heavily-marketed promises are never matched by measurable improvements in satisfaction studies, where Comcast remains among the worst companies in any industry when it comes to customer satisfaction and support.In fact, despite these promises by Comcast, things are somehow getting worse.The well-respected American Consumer Satisfaction Index ranks customer satisfaction across 43 different industries. Their latest rankings of pay TV providers has found that Comcast has slipped four points in the ACSI rankings, from 62 to 58. That fall places it as the second worst-ranked cable TV provider in the United States -- six points worse than the already-bad national average for cable TV providers, and thirteen points lower than industry leader Verizon FiOS:That's a different story than the one Comcast keeps telling the press, featuring a supposed relentless dedication to shoring up customer service and support. For example, a company executive recently told the Chicago Tribune that Comcast's evolution is moving along so nicely, execs don't even think of Comcast as a cable company any longer -- but as a premiere technology brand more in line with Google and Apple:

Three years ago, we brought you the horrifying story of Diego Gomez, a grad student in Colombia. While working on his own research, he relied on and cited a paper that he couldn't find anywhere else online. As was common practice in Colombia, Gomez uploaded that paper to Scribd so that others could follow his own work and understand his citation. As a research practice, this is a really good idea. Under copyright law, however, it gets stupidly problematic. And it was made much more stupidly problematic by the insane copyright law passed in Colombia -- under pressure from the US -- which made this a criminal act for which Gomez faced up to 8 years in prison along with monetary fines.Again, he absolutely did upload someone else's paper to the internet -- but this was an academic paper, it wasn't for Gomez's own profit, but for perfectly reasonable academic purposes, to make sure people were better informed. Not only that, but as soon as he found out the paper's author was unhappy, he deleted the paper from Scribd. And yet he's spent the past few years dealing with criminal charges over it. Thankfully, just this week Gomez was cleared of any wrongdoing. It just cost him four years of absolute hell. And it's not totally over yet. While the judge has given a "not guilty" verdict, the prosecutor has already announced plans to appeal.

A few weeks back, I wrote about IndieGogo shutting down a crowdfunding project for a small notetaking/speaker device called Titan Note. As I pointed out at the time, there were a lot of alarm bells about the product, but I had still backed it just to see if it might actually work. IndieGogo shutting it down actually had me relieved because the more I thought about it, the less sure I was the project was legit. Making things even more bizarre -- and leading to my post about it -- was the news that the guy behind Titan Note had sent a bogus DMCA takedown notice to the Verge over its skeptical take on the product. The DMCA notice targeted the use of Titan Note's promotional images -- which are clearly fair use for news publications.A few days after that all went down, I went to see if the guy behind Titan Note had anything to say about it. There was a post on Facebook claiming that it was all IndieGogo's fault and promising it would be on another "more trusted" platform soon:

The U.S. Senate is about to consider mostly pointless legislation that would make the nation's register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.The legislation is ostensibly the product of the House Judiciary Committee's multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes.Alas, while it’s billed as a “first step,” the current legislation gives up most of those more substantive reforms and instead amounts largely to a partisan battle over who will have the power to select the next register: Hayden, who was appointed by Barack Obama, or President Donald Trump.Opponents argue the bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, while ceding more power to the executive. They argue that vetting the register through the nomination process could delay modernization efforts. Hayden needs the position to be filled expeditiously to implement her modernization program, and Trump already faces a sizable confirmation backlog.Meanwhile, proponents argue a more independent register, less tethered to the will of the Library of Congress, will make USCO more accountable. They say it will make the office run more efficiently and allow it to modernize. They also believe it will address important constitutional questions, such as the separation of powers and oversight by the president.At the heart of these constitutional questions is the fact the Library of Congress has both significant legislative and executive functions. Housed within the legislative branch, it also sets royalty rates and rules on exemptions from the Digital Millennium Copyright Act. Critics have derided the Copyright Office for being slippery about whether it is serving a legislative or executive role, depending on who’s asking. The contention is that this unusual arrangement renders USCO a “constitutional chameleon.”Of course, it is not uncommon for entities in one branch to perform the functions of another. The president has a role in the legislative process through his veto power. The International Trade Commission performs judicial functions, but is an independent agency housed within the executive branch. The federal government's separation of powers is not absolute. But there does come a point where those lines become so blurred as to call the original classification into question. In that respect, Congress should consider taking certain functions—such as the Copyright Royalty Board or the Triennial Section 1201 Proceeding—out of the Copyright Office.Some would propose moving the entire Copyright Office out of the Library of Congress and rendering it a standalone agency, which would elevate the register’s position to one of an officer of the United States. Under that highly controversial scenario, the Constitution's Appointments Clause definitely would require the job be filled by the president. But for now, since the librarian still has ultimate authority over the substantive regulatory powers surrounding copyright, changing who appoints the register won’t change anything outside of a short-term political calculation of who the next register is.The bottom line is that the current bill simply doesn’t do that much, good or bad. Making the position a presidential appointment is unlikely to speed up IT modernization efforts, at a time when the office has faced numerous setbacks and problems getting that IT infrastructure in place. The original policy proposal drafted by the House Judiciary Committee was a more comprehensive and substantial approach to modernization and many of its provisions were supported broadly. First step or not, this is a feeble try.As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely. As currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.Sasha Moss is Technology Policy Manager for the R Street Institute

While the Boston Globe has had a paywall on its site for some time -- the metered sort that lets you read a certain number of articles for free before insisting you sign up for an account with a subcription -- that paywall also featured an open tunnel allowing anyone running their browsers in private or incognito mode to drive right through it. This workaround was well known and used since at least 2014, although hunting around on google search results seems to make it clear that this was all found out because people generally like to use privacy and incognito modes in their browsers for the very reasons the browsers developed them: security and privacy.Two things that perhaps the folks at the Boston Globe don't consider terribly important as they have elected to simply block all readership from browsers running in privacy modes unless the reader signs up for a subscription.

The GOP’s leading campaign and fundraising arm, the Republican National Committee, has thrown its support behind an initiative that could allow marketing firms and robocallers to spam your voicemail inbox -- without your phone ever ringing. Under former FCC boss Tom Wheeler, the agency notably ramped up its assault on annoying robocalls. That included some particularly notable pressure on AT&T, which for years had provided a rotating crop of excuses as to why its customers continued to get hammered by phone marketers even if included on the National Do Not Call Registry.Under current law, marketers aren't allowed to annoy you via your cellular phone unless you give your express, written consent. In the hopes of boosting revenues without running afoul of the law, the industry has begun pushing for exemptions in the Telephone Consumer Protection Act for "ringless voicemail," which would allow a company to leave you a marketing message in your voicemail, without your phone ringing. Of course you'd be hard-pressed to find a single consumer that thinks this is a good idea, which is apparently why the current FCC is exploring precisely this option:

The world's most thin-skinned "leader" is at it again. Perpetually-insulted Turkish super-villain Recip Erdogan is still firing off court orders to Google, expecting the immediate banishment of anything he finds offensive. Dean Jones of the invaluable Shooting the Messenger has more details:

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Legislator Tom Graves is pushing his cyber defense bill again. So far, his bill -- which we covered here in March -- is still in the drafting stages and has yet to be introduced. It has a unmemorable name (Active Cyber Defense Certainty Act) [but a much better acronym (ACDC)] and a handful of ideas that are questionable at best.The bill would amend the CFAA to give companies the ability to "hack back" to shut down attacks and identify the attackers. It would not allow them to go on the offense proactively and it doesn't actually grant companies new statutory permissions. Instead, it provides them with an affirmative defense against CFAA-related charges, should someone decide to take them to court.The good news about the bill's slow crawl is it's being rewritten before being introduced. According to the Financial Times, Graves and his team are consulting with cybersecurity experts to craft a better bill.

As we recently noted, more than 40% of the 2.5 million comments filed with the FCC on net neutrality are entirely fake. The comments, which oppose net neutrality, have been posted using a bot that's pulling the names used from a hacked database of some kind. When the people that own the actual names behind these comments have been contacted by the media, many have stated they didn't make the comments, and/or have no idea what net neutrality even is.In an ideal world, the FCC would easily parse out these obviously fraudulent, duplicate comments and shore up the abuse of its API. But because these comments support the current FCC's belief that meaningful net neutrality protections are somehow an assault on "American freedom," the FCC appears poised to completely disregard the fact that a malicious actor is manipulating the FCC's systems. The FCC isn't candidly admitting this, but FCC boss Ajit Pai's non-statements and statements alike so far indicate he's inclined to include the obviously fraudulent comments:

Back in 2015, Wikimedia's lawsuit against the NSA -- filed with several other plaintiffs and with the help of the ACLU -- was tossed out by the district court. Wikimedia argued it was illegally the subject of NSA upstream surveillance, thanks to the nature of this Section 702 collection. Wikimedia's reach is global, making it highly likely the NSA was gathering its content and communications while snagging data off internet backbones.To further demonstrate the probability of this happening, Wikipedia submitted leaked Snowden documents, including an NSA presentation slide that contained Wikimedia's logo.>No dice. The district court said Wikimedia had no standing to pursue these claims, even with the unexpected buttress of leaked NSA documents. The court went even further, disabusing Wikipedia of its "99.9999999999% certainty" notion that the NSA had illegally harvested at least one of its trillions of internet transactions. In all, it was a very ugly day for Wikimedia and its lawsuit.Fortunately, for Wikimedia, its lawsuit has been revived on appeal. The Fourth Circuit Appeals Court is far more amenable to Wikimedia's claims, finding them to be more credible than the lower court determined. From the opinion [PDF]:

By now, Tinder is probably in the common lexicon. The dating app has been fairly successful, boasting something like 50 million people using it and managing to make something like 12 million matches per day. It's a household name, in other words, which is what makes it a bit strange to see the company bother to oppose a fairly silly trademark application by one guy who designed a dating app to get dating matches for exactly one person: himself.

It appears that a vendor working for Comcast sent a totally bullshit cease-and-desist letter regarding a pro-net neutrality site: Comcastroturf.com, created by our friends over at Fight for the Future. The Comcastroturf website was set up as a tool to see if someone filed bogus FCC comments in your name. As you probably recall, there is a bot that has been flooding the FCC comment site with bogus anti-net neutrality comments, filed in alphabetical order. Reporters contacted some of the individuals whose names appear on these comments, and they had no idea what it was about. People are still trying to track down who is actually responsible for the bogus comments, but Fight for the Future set up this neat site to let you check if your name was used by whoever is behind it.And, of course, the name "Comcastroturf" is pretty damn clever, given the topic. Kudos to Fight for the Future for coming up with that one. It is, of course, totally legal to use the domain name of a company that you're protesting in your own domain. There are numerous cases on this issue, normally discussed as the so-called "Sucks Sites." There's clearly no legal issue with Comcastroturf, and any reasonably informed human being would know that. Unfortunately, it would appear that Comcast hired a company that employs some non-reasonably informed humans.The cease-and-desist letter was sent by a company called "Looking Glass Cyber Solutions" (no, really), which used to be called "Cyveillance" (only marginally less bad). We've written about Cyveillance twice before -- and both times they were about totally bogus takedown requests from Cyveillance that caused serious problems. The most recent was the time that Cyveillance, working for Qualcomm, filed a bogus DMCA notice that took down Qualcomm's own Github repository. Nice move. The earlier story, however was in 2013, and involved Cyveillance -- again representing Comcast -- sending a threatening takedown demand to some more of our friends over at TorrentFreak, claiming (ridiculously) that public court filings were Comcast's copyright-covered material, and threatening serious legal consequences if it wasn't taken down. Eventually, Comcast stepped in and admitted the cease-and-desist was "sent in error." You'd think that maybe this would have caused Comcast to think twice about using Cyveillance for such things. But, nope.The rebranded Looking Glass Cyber Solutions has told Fight for the Future that "Comcastroturf" violates Comcast's "valuable intellectual property rights" and that failure to take down the site may lead to further legal action around cybersquatting and trademark violations.Of course, there's no way that Comcast would actually move forward with any legal action here. In fact, I'm pretty sure it already regrets the fact that the numbskulls at this vendor they hired to police their brand online just caused (yet another) massive headache for their brand online. Maybe, this time, Comcast will finally let Cyveillance/Looking Glass Cyber go, and find partners who don't fuck up so badly. Meanwhile, the fact that Looking Glass Cyber can't even figure out that Comcastroturf is a perfectly legal protest site makes the company's website -- which is chock full of idiotic buzzwords about "threat mitigation" and "threat intelligence" -- look that much more ridiculous. The only "threat" here is Looking Glass/Cyveillance and their silly cluelessness sending out censorious threats based on what appears to be little actual research.Of course, without true net neutrality, if Comcast really wanted to silence Comcastroturf, it would just block everyone from accessing the site...

When the "death of the MP3" started being reported, we were among the very few blogs that said umm, no — but the deluge of eulogies for the still-thriving format has been overwhelming and quite surprising. This week I join the podcast to discuss why the MP3 isn't dead, and how so much of the tech press got it so wrong.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.

Everyone's favorite abusable statute is back at it. Anyone can file a DMCA takedown request. Not everyone gets theirs granted. But it's a zero-cost, mostly-zero risk effort that takes about five minutes from start to finish. It's no wonder it's been abused by a handful of ex-cons and, very memorably, by a revenge porn purveyor who suddenly developed concerns about personal privacy.In this case, it's someone named in an Albuquerque Journal article about a federal fraud indictment. The most obvious pick would be the couple named early on in the article by Nicole Perez: Michael Jacobs and/or Ruth Handler-Jacobs. But there are others listed as well, co-conspirators Rienzie Edwards (of Sri Lanka), F.K. Ho (a broker located in Singapore), and a couple of other Americans, Laurence Lester and Rachel Gendrau.It could be any one of these people (though the fractured English in the takedown request would seem to point overseas), but there's no way to know for sure because the DMCA notice is clearly falsely filed in the name of the journalist who wrote the article. This appropriation of someone else's name and profession leads to one of the most unlikely claims ever made in a DMCA notice: that journalists refer to publishing articles as "posting a content."Here's the whole BS claim:

Over the last year, we've noted the surge in so-called "right to repair" laws, which would make it easier for consumers to repair their electronics and find replacement parts and tools. It's a direct response to the rising attempts by companies like John Deere, Apple, Microsoft and Sony to monopolize repair, hamstringing consumer rights over products consumers think they own, while driving up the cost of said product ownership. John Deere's draconian lockdown on its tractor firmware is a large part of the reason these efforts have gained steam over the last few months in states like Nebraska.In New York, one of the first attempts at such a law (the "Fair Repair Act") has finally been making progress. But according to New York State's Joint Commission on Public Ethics, Apple, Verizon, Toyota, Lexmark, Caterpillar, Asurion, and Medtronic have all been busy lobbying to kill the law for various, but ultimately similar, reasons. And they're out-spending the consumer advocates and repair shops pushing for this legislation by a rather wide margin:

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As information about police use of cell tower spoofers began leaking out, those who had kept the public (including defendants, judges, and even some prosecutors) out of the loop began defending their use of domesticated military technology. They said pay no attention to the possible civil liberties violations. Just think of all the good they're doing. They promised Stingrays would only be used on the worst of the worst, and only when time was of the essence: terrorists, murderers, kidnappers, etc.But then even more Stingray documents made their way into the public domain. These showed the devices were deployed in bog-standard drug investigations or, worse, used just because agencies had them. This perhaps reached its nadir when a police department fired up its Stingray to hunt down someone who had stolen less than $60 worth of fast food. To make matters worse, the Stingray failed to track down the alleged thief.Of course, anyone paying attention knew Stingrays would be used for nothing of importance, despite public officials' statements otherwise. The first person to start digging into Stingray use was Daniel Rigmaiden, who was doing time for fraud. Not exactly the sort of crime one would associate with exigent circumstances and possible danger to the public.And, of course, because it's now the government's foremost priority to toss undocumented immigrants out of the country, Stingrays are being used to accomplish this goal. And, just like the defensive statements made on behalf of IMSI catchers, the federal government has claimed it's only interested in removing the most dangerous of undocumented individuals first. These statements are also false.

Apparently, giant broadband providers don't much want to put their sudden, mysterious love of net neutrality into writing. Last week, the FCC voted to begin killing net neutrality, opening the door to a 90-day comment period ahead of a broader rule-killing vote later this year. In the wake of the move, the same large ISPs that have spent a decade trying to kill meaningful regulatory oversight comically went out of their way to (falsely) claim that the killing of the rules doesn't mean all that much -- because these duopolies love net neutrality so much any hard rules simply aren't necessary.Verizon went so far as to publish a violently misleading video claiming that net neutrality isn't dying and large ISPs aren't trying to kill it. Comcast's top lobbyist David Cohen penned a blog post claiming that the FCC was only trying to "protect the open internet" from "dangerous and inappropriate Title II." And the day before the FCC voted to begin killing the rules, the cable industry's biggest lobbying organization (the NCTA) took out a full-page ad in the Washington Post, pledging the cable industry's "commitment to an open internet":

Jason Leopold has obtained the FBI's training slides for its "insider threat" program. This would be the same program the FBI refused to discuss in detail with the Senate, walking out of the briefing when asked how the program would avoid sweeping up legitimate whistleblowers.The federal government acts as though it's receptive to whistleblowing, but then undermines that sentiment with pretty much everything else it does. These insider threat programs have only become more severe after the Snowden leaks, asking federal government employees to treat normal, everyday behavior as inherently suspicious.The Defense Department's insider threat program declared such innocuous things as visiting foreign countries and being in debt as warning signs. Worse, anything less than full support for US government policies was considered threatening behavior.The FBI's presentation [PDF] isn't much better. FBI employees are encouraged to say something if they see something… and there are a lot of observable "somethings" on the list.

The European Union's top court has just handed down an important ruling about an otherwise minor trade deal between the EU and Singapore. The two sides initialled the text of the agreement in September 2013, and since then it has been waiting for the Court of Justice of the European Union (CJEU) to hand down its judgment. The issue is who gets to sign off on the deal: is it just the European Union, or do all 28 Member States of the EU need to agree too? There's clearly a big difference there, because in the latter case, there are 28 opportunities for the deal to be blocked, whereas in the former situation, the EU can simply wave it through on its own.The CJEU ruling (pdf) is fairly straightforward: the EU can sign and conclude trade deals covering most areas, but not for a few that must involve the EU Member States. Of most significance is the following:

This is just a periodic reminder that these are the sort of people whose "experience" and "expertise" are routinely granted massive amounts of deference by judges (and stenographers pretending to be journalists). Warrant affidavits providing more detail about the requesting officer's law enforcement career than the target of the search are often rubberstamped into actionable pieces of paper. (But not always!) And yet, these experienced experts look far more mortal when their actions are given something more than a cursory examination.Exhibit A: the Odessa PD's crack team of trained experts who participated in a daring no-knock raid of an empty motel room.

The FBI (and other US government agencies) are already moving forward with facial recognition technology, which will allow law enforcement to scan people like license plates, if everything goes to plan. So far, consultation with the meddling public has been kept to a minimum, as have any government efforts to address civil liberties concerns.Just because the public's been kept out of the loop (except for, you know, their faces and other personal information), doesn't mean members of the public aren't working hard to ensure police officers can start running faces like plates, even when there's no legitimate law enforcement reason for doing so.Digital Barriers, a somewhat ironically-named tech company, is pushing its latest law enforcement offering -- one that supposedly provides real-time face scanning.