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Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the "expert" on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you've probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it's become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are "patent friendly" jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said "sure, that's great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court -- which has spent the past decade reteaching patent law to CAFC every chance it gets -- has done so again. Once again, the decision was unanimous, with the court voting 8 - 0 that trolls can't just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorporated was the proper jurisdiction.While most of the ruling is deep in the weeds about definitions in the law, and whether or not Congress intended to change certain definitions, here's a simplified version of what happened: some have interpreted patent law to mean that a patent holder can sue an alleged infringer anywhere that a product is sold/available. In the age of the internet, this generally means "anywhere." Thus, as long as your product was available in Texas or Delaware, trolls could sue in those locations -- even if the company was nowhere near those locations. Here, however, the Court has said that the lawsuits are supposed to be filed where the company "resides," which it says is the state where the company is incorporated. This is a huge win for companies who are targeted by patent trolls. Rather than being dragged across the country to courts like East Texas or Delaware, which have built up large practices and reputations for supporting patent trolls over actual innovators, now cases will need to be filed where the alleged infringer is actually incorporated.Expect to see the usual whining from patent trolls and their supporters about this -- but just remember: if they have a serious case of infringement, they should be fine filing it wherever the defendants actually are. Their concern is not about how this is somehow bad for patent owners. It's really about how certain courts were biased in their favor and they can no longer take advantage of that. Of course, this might mean that the ice rink in Marshall, Texas needs to find a new sponsor.

The FCC apparently doesn't want to talk much about its plan to gut meaningful oversight of some of the least competitive companies in any American industry. Last week, we noted that the FCC had voted to begin the process of gutting popular net neutrality protections, ignoring the overwhelming public support for the rules registered at the FCC's website. This notice of proposed rule making (NPRM) is followed by a 90-day public comment period (you can comment here) ahead of a finalizing vote to kill the consumer protections later this year.Since the FCC has been getting a few mean tweets over its decision to give consumers the policy equivalent of a giant middle finger, it's understandable that the agency is a bit on edge. That said, veteran defense beat reporter John Donnelly stated last week that this tension culminated in him being shoved up against the wall by two FCC staffers during their May 18 net neutrality meeting. Donnelly was, he stated, "manhandled" for simply trying to ask the agency a question:

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With UK Prime Minister Theresa May recently calling for a new election there, which she is expected to win easily (despite recent reports of narrowing polls), last week May's Conservative party released its Manifesto (what we in the US tend to call a party's "platform"). There are all sorts of things in there that are getting press attention, but for the stuff that matters here on Techdirt, let's just say May's view of the internet is not a good one. A part of the plan is basically to regulate, tax and censor the internet, because the Conservative Party leadership doesn't seem to much like the internet -- and they especially dislike the fact that Google and Facebook are so successful.What's hilarious is that the manifesto basically promises to put in place all sorts of rules that will absolutely kill off any internet economy in the UK, as no company in its right mind would agree to these restrictions, while, at the same time, it talks up how important it is to support digital businesses in the UK. Of course, some of the plan is couched in nice sounding language that should actually scare you:

We've noted for some time how T-Mobile's crazy idea to be nice to consumers (well, if you exclude their attacks on the EFF and net neutrality) has been a great thing for American consumers. Thanks to more consumer-friendly policies, T-Mobile has been adding more subscribers per quarter than any other major carrier for several years running. This pressure recently resulted in both AT&T and Verizon being forced to bring back the unlimited data plans the companies had been telling consumers they didn't actually want for years.This added competition has really annoyed Wall Street, which has been grumbling about the shift back to unlimited plans for months. Wall Street had grown comfortable with the non-price competition in the wireless market, where plan pricing often obscured the fact that Americans pay more for mobile data than most developed countries. AT&T and Verizon used a lack of competitive pressure to kill off unlimited data plans in 2011, allowing them to introduce significantly more expensive metered plans -- just as video consumption on mobile began to take off. For the giant incumbents, things were going swimmingly.Of course as T-Mobile grew, improved its network, and fashioned its often brash and amusing new identity, it slowly but surely became a more viable competitor, forcing both companies to respond. And, just as Wall Street worried, the shift back to unlimited data is having a negative impact on cellular revenues. How negative? According to respected wireless industry analyst Chetan Sharma, cellular data revenues dropped last quarter for the first time in seventeen years. This was part of a number of firsts for an industry not-entirely-familiar with this whole competition thing:

The NSA's exploit toolkit has been weaponized to target critical systems all over the world. So much for the debate over the theoretical downside of undisclosed vulnerabilities. (It also inadvertently provided the perfect argument against encryption backdoors.) The real world has provided all the case study that's needed.It appears the NSA finally engaged in the Vulnerabilities Equity Process -- not when it discovered the vulnerability, but rather when it became apparent the agency wouldn't be able to prevent it from being released to the public. What's happened recently has been devastating and Microsoft -- whose software was targeted -- has expressed its displeasure at the agency's inaction.Maybe the agency will be a bit more forthcoming in the future. Ellen Nakashima and Craig Timberg of the Washington Post report former NSA employees and officials had concerns about the undisclosed exploit long before the Shadow Brokers gave it to the world.

This week, we covered the disturbing story of a cop whose huge number of impaired driving arrests turned out to stem from his arbitrary decisions about who was impaired as though it was some sort of magical ability. Roger Strong took a firm line on responding to this, and enough people agreed to make it the first place winner for insightful:

Five Years AgoThis week in 2012, a Microsoft-funded effort to disrupt BitTorrent was drawing scrutiny, EMI was gloating over the demise of MP3Tunes, and the MPAA was cheering on legal rulings against the Pirate Bay. Of course, one of those rulings was called into question when a Dutch judge's connections to anti-piracy groups drew accusations of corruption, and one of TPB's founders was taking the legal fight over a Swedish ruling to the EU courts. Meanwhile, protestors against the TPP were getting creative, Chile was threatening to drop out of the negotiations all together, Rep. Darrell Issa posted an old leaked version of the agreement for discussion, and the USTR was still attempting to claim that listening to people counts as "transparency".Ten Years AgoThis week in 2007, while the MPAA was making some curious changes to its opaque and esoteric ratings system, the RIAA was getting journalists to parrot its propaganda about its copyright shakedowns, and Microsoft was spreading unoriginal FUD about Linux infringing on its patents (prompting Sun to remind it that real companies don't litigate, they innovate). Cinemas were lashing out at the idea of getting rid of movie release windows, CBS was learning why trying to build its own online video destination was a bad idea, and the latest update to AACS was cracked before it even hit the market. We also witnessed the birth of The Copyright Alliance at the hands of the RIAA, MPAA, Disney, Viacom and more.Fifteen Years AgoSometimes — such as this week in 2002 — cracking CD protection was as easy as using a black marker or some electrical tape. Then again, other times the CD might lock up your iMac and force you to take it in for repairs. While the copyright world was discussing big, sweeping ideas like blanked licensing fees paid to ISPs and compulsory licenses for music downloads, the recently-announced Creative Commons was launching in earnest.Also, you know that oft-mentioned fact about how everyone from Europe is descended from Charlemagne as a matter of mathematical inevitability? It was this week in 2002 that those numbers were first crunched.One-Hundred And Fifteen Years AgoMost of you are probably at least vaguely familiar with the Antikythera mechanism, an shockingly advanced astronomical calculator/analog computer from Ancient Greece. It was on May 17th, 1902 that the mechanism was discovered by an archaeologist examining the remnants of a ship, itself discovered on the sea floor two years earlier by sponge divers.

Certain senators have repeatedly pushed for encryption bans or encryption backdoors, sacrificing personal security for national security in a move that will definitively result in less of both. Former FBI Director James Comey's incessant beating of his "Going Dark" drum didn't help. Several legislators always managed to get sucked in by his narrative of thousands of unsearched phones presumably being tied to thousands of unsolved crimes and free-roaming criminals.It will be interesting if the anti-encryption narratives advanced by Sens. Feinstein and Burr (in particular -- although others equally sympathetic) continue now that senators can officially begin using an encrypted messaging system for their own communications.

The South China Morning Post has a story about a new requirement for drone owners in China to register with the country's civilian aviation regulator starting next month. So is this yet another example of the Chinese authorities clamping down on a potentially subversive new technology by ensuring that drone use can be tracked? Well, that might be one reason, but it's probably also to do with this:

We've often discussed the darker side of the repurposed war tech that's made its way into the hands of local law enforcement. Much like backdoored encryption (something some in law enforcement would like to see), rebranded war surveillance gear like Stingrays may sound great when touted by good guys, but we should never forget bad guys have access to the same equipment.The seldom-discussed capabilities of Stingray devices are on full display in other countries. So far, we haven't seen US law enforcement use Stingrays to intercept communications or purposefully disrupt them. (A lack of public evidence doesn't mean it hasn't happened, however.) The power is there, though. Stingrays act as faux cell towers and force all phones in the area to route their communications through them. This has the potential to be more than merely disruptive to cell service. The devices carry the capability to act as roving wiretaps. They also have the power to act as very frightening purveyors of government propaganda.

Consternation over so-called "joke stealing" goes back roughly as long as comedy itself has been a thing, but these past few years have seen something of a rise in awareness whenever a comedian is accused of copying a joke. Honestly, much of this hand-wringing is overblown, likely born of an ownership culture that values protectionism over expanded culture, and devoid of the understanding that a joke is much more than the words used to tell it. After all, timing and delivery factor into the success in telling any joke, and it almost seems too obvious to have to point out that multiple comedians come up with similar jokes all the time. For that reason, the bar for copyright infringement on jokes has tended to be very high in the few cases that actually get tried. On top of that, the common method for policing such copying involved the massive reputational hit the accused takes -- rather than legal action. And that's only accelerated thanks to the internet's public shaming engine. Because of that, actual lawsuits over this sort of thing are few and far between.Which brings us to Conan O'Brien, who is still in the midst of a years-old copyright infringement suit over the claim that he and the writers of his show used several jokes from a freelance joke writer without authorization.

You recall, of course, the Panama Papers? The massive leak of documents about offshore shell companies last year, that a large coalition of reporters worked on for many months before releasing a bunch of stories at the same time. The documents were leaked from a law firm, and highlighted more than a few cases of what appeared to be questionable activity by the rich and powerful in moving money around in offshore accounts. Apparently the subject of one such story, Malta's Prime Minister Joseph Muscat, wasn't happy that he and some of his colleagues were mentioned in some of the reporting on this, and filed a defamation case against Matthew Caruana Galizia, the reporter who wrote up some stories, using the Panama Papers, arguing that Muscat and his chief of staff were involved in a scheme to get kickbacks on the sale of Maltese passports.Caruana Galizia, who is a journalist at the International Consortium of Investigative Journalists (ICIJ), and who coordinated the mass reporting effort on the Panama Papers (and who won a Pulitzer Prize as part of that), had posted those stories to his Facebook page. In addition to facing this defamation lawsuit, Caruana Galizia has also noted that Facebook has deleted some of his posts and locked him out of his account temporarily. It would appear that someone has complained to Facebook about those posts, claiming they were terms of service violations. Once again, this should be a reminder of the problem of relying on someone else's platform for posting your stories, as they get to make up the rules for what's allowed.But there are two larger issues here: First, this appears to be a classic SLAPP-style lawsuit, in which reporters are being sued as an attempt to chill free speech on reporting that the subject doesn't like. I'm no expert in Maltese defamation law, but it does appear that there has been a lot of concern about abuse of Maltese defamation law to intimidate reporters and chill speech (amusingly, that article focuses on Daphne Caruana Galizia who has been sued a few times for defamation, and who appears to be Matthew's very proud mother). There have also been attempts to update defamation law in Malta, but there appears to be nothing akin to a an anti-SLAPP provision. Indeed, it's not even clear if there's a "truth" defense.The interview with Daphne Caruana Galizia is quite detailed in how officials in Malta use defamation laws to chill the free speech of journalists:

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A brief review of our past stories about copyright collection societies should paint you a fairly complete picture on how these businesses operate. While they pimp themselves as proxies for content creators to police the known world for unauthorized use of that content, as well as operators working to license the use of that content, instead these companies work as syphons sucking money from both sides. They will be genuinely creative in their attempts to find infringement everywhere, liberally interpreting copyright law and what constitutes requirements for various licenses for things like art and music, while at the same time often being found to feign brain-death when it comes to paying the copyright holders' share for the money they collect.While the tactics used by collection societies regularly flirt with absurdity, it's not terribly often that they behave in a way that will garner broad disdain. One collection society in Japan, though, has decided to cross that line, unilaterally informing music schools that they must now pay up for daring to teach students how to play music. The schools, it seems, are not taking this lying down, having banded together and planning to sue the collection society.

Two lawsuits filed by victims of terrorist attacks against Facebook have been dismissed. Both suits alleged Facebook was complicit in acts of terrorism simply because it (subjectively) didn't do enough to discourage use of the platform by alleged terrorists.One lawsuit (Cohen v. Facebook) plead on behalf of "20,000 similarly-situated" residents of Israel who continue to face the threat of violence at the hands of terrorist organization Hamas. The other (Force v. Facebook) also featured multiple plaintiffs but was limited to families of victims of Hamas attacks. Neither case presented legitimate complaints and both advanced novel arguments in an attempt to avoid a dismissal under Section 230.The alternative routes to judgment worked out no better for the plaintiffs, as Eric Goldman reports. The Cohen class action presented a legal theory that couldn't even be addressed by the court due to a lack of jurisdiction. From the decision [PDF]:

As Techdirt readers will recall, in 2013 David Miranda was held by the UK authorities when he flew into Heathrow airport, and all of his electronic equipment was seized, in an act of blatant intimidation. His detention was under Schedule 7 of the UK's Terrorism Act, which, as its name implies, is supposed to be used only if someone is involved in committing, preparing or instigating "acts of terrorism."That was clearly ridiculous in Miranda's case, and it's just as outrageous in the latest example of UK border bullying, this time against Muhammad Rabbani. He's a British citizen, and the international director of Cage, which describes itself as "an independent advocacy organisation working to empower communities impacted by the War on Terror." The Guardian fills in the background:

For years, we've pointed out that the "Right to be Forgotten" (RTBF) in Europe is a dangerous tool that has been and will continue to be abused as a tool to censor freedom of expression, while hiding behind a claim that it is to protect "privacy." While the concept has been around for a while, it really took off online with a EU Court of Justice (CJEU) ruling from three years ago, saying that Google's search results index counted as a data repository on someone, and thus, an individual could force Google to "delink" certain results from searches on their names. But, the court left some leeway to Google to decide whether or not the requests were valid. Basically, if the information is no longer relevant for the public to know about the person, then Google should delink it. Now, obviously, that's a horribly subjective standard, and Google has had to staff up on people to determine whether or not any requested delinking qualifies.Part of the problem with all of this is that it seems to produce tremendous liability. Fail to get a delinking request "right" and Google is right back in court, which is exactly where we are today. Google has rejected just under 60% of requests to delink info in Europe, and four individuals in France were so upset by this, that they complained that their rights were being violated. The French data protection regulator, CNIL, actually agreed with Google that the information shouldn't be "forgotten." However, the four have appealed their case, and it's been kicked back to the European Court of Justice. The four individuals are claiming that the information is "sensitive data" and are suggesting that just being "sensitive data" alone is enough to require forgetting -- no matter what the "public interest" may be in that info.As Google has noted in a blog post, there are serious questions here about whether or not people can hide information from their past that may be relevant:

Because good ideas are rare but bad ideas eternal, the New York State Senate has just given its blessing to a stupid bill aimed at protecting people armed with guns, power, the weight of the law, and numerous immunity options. The "justification" for New York's addition of cops and first responders to the state's hate crime law is this:

While we've viewed much of the hyped up discussions about cyberwarfare with some trepidation here, we now live in a reality where it would be clearly silly to suggest that the internet and internet-connected devices are not an emerging battleground for rival nations. While much was made these past few years about what mostly amounted to the penetration of private business networks, the discussion about several democratic elections throughout the country and the clear interference in them, potentially by state actors, has pushed the overdrive button on all of this. As you can imagine, groups in charge of defense for the nations of the world have been paying attention, including the US Department of Defense.But it seems the DoD has a problem: it isn't meeting its recruitment goals for its Cyber Command division.

Last week there were reports claiming that the Department of Homeland Security (DHS) was just about ready to ban any laptops from being in the passenger cabin on any flights between the EU and the US. As we pointed out this made no sense, even if there were credible reports of terrorists turning laptops into bombs (as the rumor goes). The plan was supposedly set to go into effect last Thursday, but on that day DHS said it hadn't made a final decision yet. Of course, apparently some over eager airline employees had official signs printed up claiming the ban was already in place (leading to later apologies).

Surprising absolutely nobody, the FCC today voted 2-1 along strict party lines to begin dismantling net neutrality protections for consumers. The move comes despite the fact that the vast majority of non-bot comments filed with the FCC support keeping the rules intact. And while FCC boss Ajit Pai has breathlessly insisted he intended to listen to the concerns of all parties involved, there has been zero indication that this was a serious commitment as he begins dismantling all manner of broadband consumer protections, not just net neutrality.As you might have expected, the FCC was quick to release a statement claiming that gutting the popular consumer protections would usher forth a magical age of connectivity, investment, and innovation:

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It's been another busy week for our president. Following on the heels of his revelation that he fired FBI Director James Comey over the ongoing Russian ties investigation (and following on the heels of Trump's tweeted threat about secret recordings of conversations with Comey), the FBI's acting director said the investigation is still ongoing, a special counsel was picked to oversee the investigation, and people close to Comey hinted the FBI might have some recordings of its own that undercut the president's narrative.

Despite a last-ditch effort by the EFF and other consumer and privacy groups, the GOP voted back in March to kill consumer broadband privacy protections. As we noted several times, the protections weren't particularly onerous -- simply requiring that ISPs are transparent about what data they're collecting, who they're selling it to, and that they provide working opt-out tools. But because many of these large ISPs are busy pushing into the media sector (AT&T's acquisition of Time Warner being just one example), large ISPs lobbied fiercely to eliminate anything that could dent these future potential revenues.Shortly thereafter, at least eight states and a handful of cities rushed in to fill the void. The city of Seattle, for example, passed a new requirement that ISPs receive opt-in permission (the dirtiest phrase imaginable to the marketing industry) before collecting and selling subscriber data. Meanwhile in Maine, a new privacy proposal by State Senator Shenna Bellows is seeing support from Democrats, Republicans, and Independents alike. Bellows cited Congress' decision to overturn the protections as a motivation for the move:

There are all sorts of different ways that websites that allow comments have dealt with trollish behavior over the years, but I think the BBC's new policy is the first I've seen in which the organization threatens that it may contact your boss or your school (found via Frank Fisher).The new policy has a short section on "offensive or inappropriate content on BBC websites" where it says the following:

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux -- and of thousands of other coding projects -- is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

A few years ago, some Seattle police officers came up with a novel plan to battle DOJ-imposed limits on their use-of-force. Since their union wisely decided to steer clear of this ridiculous legal battle, the officers chose to crowdfund their way into the federal court system.Armed with a little over $3,000 and some particularly dubious arguments, the protesting cops filed a lawsuit claiming their Second and Fourth Amendment rights were being violated by the DOJ's use-of-force restrictions. It did not go well.

In court filings, testimony, and warrant affidavits, law enforcement officers refer constantly to their "training and expertise." Given enough time on the job and enough laser-printed certificates, any law enforcement officer can be an "expert" in anything… even detecting nonexistent drug impairment.Atlanta's 11 Alive News has been digging into Officer T.T. Carroll's impressive run of Driving Under the Influence arrests and finding some that aren't all that impressive. [h/t PitchforksAtTheGate] T.T. Carroll is a certified "Drug Recognition Expert," having attended 160 hours of classes put on by the International Association of Chiefs of Police. Carroll is referred to by his coworkers as the "go-to guy" for impairment arrests and was given an award by the Mothers Against Drunk Driving for racking up 90 DUI arrests in one year.Whatever the IACP is teaching in its classes must be powerful stuff. Officer Carroll's observational powers allow him to detect people impaired by drugs they've never had in their system.

A few years ago, we wrote about HBO and Showtime's somewhat novel decision to file a lawsuit against two sports streaming sites for copyright infringement that both claimed would happen... in the future. The lawsuit was filled with understandably novel language, but the fact remained that this was something akin to pre-crime enforcement, best demonstrated in the film Minority Report. One of the chief axioms of American law is that a crime must have occurred for punishment to be doled out. Injunctions are a departure from that, but actually suing for infringement when that infringement hadn't happened yet and, indeed, when the content to be infringed didn't even yet exist, seemed like a departure from the way the law works.But perhaps this is a practice we'll see expanded, as it seems to be happening again. This time, a federal court in Texas has issued an injunction ordering ISPs to proactively block a group of streaming sites ahead of the Premier League cricket tournament.

The Louisiana district attorney whose office issued bogus subpoenas to trick witnesses into "volunteering" their testimony is now facing multiple lawsuits. DA Leon Cannizzaro's office was sued on May 12th by the Roderick and Solange MacArthur Justice Foundation for its refusal to turn over copies of every fake subpoena it has issued.Three days later, it was sued again, this time by the ACLU.

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It's not like we didn't say right away that those rushing to blame Facebook for "fake news" were missing the point and that the problem was always with the nature of confirmation bias, rather than the systems people use to support their own views. But, alas, the roar of "but Facebook must be the problem, because we saw "fake news" on Facebook" along with the related "but, come on, it must 'take responsibility'" arguments kept getting louder and louder, to the point that Facebook agreed to start trying to warn people of fake news.And, guess what? Just like basically every attempt to stifle speech without looking at the underlying causes of that speech... it's backfiring. The new warning labels are not stopping the spread of "fake news" and may, in fact, be helping it.

The vast majority of consumers (from both parties) support net neutrality. This has been supported repeatedly not only by independent polls, but even the cable industry's own surveys.Yet for most of the last decade, ISP lobbyists and think tankers have managed to frame the subject in the media as a partisan one -- quite successfully using the country's deep political divisions to fuel disagreement and stall real progress. In reality, our collective disdain for growing monopolies like Comcast (and the high prices and abysmal customer service that result) tends to burn through partisan myopia. As a result, most people realize that in the absence of real competition you need some basic rules of the road to protect consumers and Comcast competitors alike.That's why, when the FCC passed relatively basic net neutrality protections in 2015, the vast majority of the record 4 million public comments filed with the FCC supported the creation of these rules. And again, data analysis of the comments filed so far show massive opposition to dismantling those same rules. Data scientist Jeffrey Fossett managed to dig through the more than 1.5 million comments filed with the FCC so far and found that -- once you exclude form letter submissions (in common use by both sides), 97% of the remaining comments support keeping the rules intact:We recently discussed how some unidentified group or individual isn't happy with the fact that the rules have broad support, and has begun using a bot to stuff the comment section with entirely fake net neutrality opposition. According to Fossett's analysis, a whopping 40% of the 1.5 million comments are courtesy of this bot, which appears to just have pulled names from a hacked database somewhere to craft its phony opposition. You can leave it up to your imagination as to which groups, companies or individuals might benefit by such a massive fabrication, but Fossett makes the impact obvious:At the moment, the FCC has frozen all public comments for what's known as a "sunshine period," a bit of bureaucratic prattle during which the FCC is supposed to avoid being lobbied and seriously reflect upon all of the input they've received so far. And Fossett suggests that the FCC may just want to actually listen to what the public (the non-bots among us, anyway) are telling them:

There's more than Section 702 up for renewal at the end of this year. Most of the attention has been focused on Section 702 because it's used most frequently for internet communications and data collections. Not only does the NSA make use of this collection, but other agencies (FBI, CIA) are allowed unminimized access to NSA 702 data stores. With this many agencies reliant on NSA communications interception, the sales pitches have been focusing on this particular authority.But there are other surveillance authorities under Title VII: Sections 704 and 705, which allow the NSA to target US persons located outside of the country. The numbers put up by these sections aren't as impressive as Section 702's (~3,000 selectors for 151 million records), but 704/705 isn't supposed to result in incidental collection. It's a US spy agency actively spying on US citizens.According to Marcy Wheeler, these collections only target about 80 people. But protections for US citizens aren't supposed to evaporate just because they've travelled out of the country. Agencies seeking to use these authorities must obtain a FISA court order to collect communications and data. Section 704 covers new requests for collections and Section 705 allows for "streamlined" requests/renewals for orders covering US persons already targeted by the agency.The NSA may be compliant in terms of obtaining court orders, but the 2016 Inspector General's report [PDF] released last week shows the agency has done almost nothing to prevent abuse of its collections.

The landscape of YouTubers who do reviews or takes on video games, including Let's Plays, and their interactions with the game makers themselves is one that lacks any sort of norm or uniformity. Some game developers understand the value these YouTubers bring to their businesses, while some tend to go on the attack with copyright claims. Some developers appreciate an open and honest ecosystem of reviews, including snarky reviews, while others attempt to suppress any sort of negativity.But, as far as I'm aware of, Overkill Software, makers of Payday 2, is the first studio to donate proceeds from its DLC content to defend YouTubers from copyright lawsuits.

Something's rotten in Maryland. Not conspiracy-level rotten, but rotten nonetheless. As we've discussed recently, Paul Alan Levy (along with Eugene Volokh) have done a ton of legwork to flush out the perpetrator of several bogus libel lawsuits filed in Baltimore courts, designed for the purpose of "reputation management" (i.e., convincing Google to stop linking to posts someone doesn't like). The man behind many of these appears to be Richart Ruddie, who runs a reputation management company called Profile Defenders.As we discussed earlier this week, one of the judges in Baltimore handling one of those cases has refused to fix things and overturn his rubber-stamped order. But there are other, similar cases in front of other judges there as well, and they seem equally unwilling to make proactive efforts to deter this sort of abuse. Because of this, Levy has worked with Myvesta (a company indirectly affected by a bogus libel lawsuit, thanks to bogus delisting orders targeting one of its websites) to file an amicus brief detailing Ruddie's fraudulent reputation management efforts.

Most Techdirt readers are already familiar with Cory Doctorow, whether via his EFF work, the BoingBoing blog, his novels, or all of the above. This week, he joins us on the podcast for an in-depth discussion about his new book Walkaway and much, much more.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.

As this site has long documented, DRM more often than not provides a false sense of security to those terrified of piracy, yet just as frequently annoys paying customers -- ironically driving those customers to the piracy alternatives the DRM was supposed to prevent in the first place.The latest example of this phenomenon: with the latest version 5.0 of the Netflix app, Netflix is now leaning entirely on Google's Widevine digital rights management system. With Netflix recently introducing downloadable shows (assuming the license for that specific program allows it), Netflix's programming partners likely wanted Netflix to utilize Widevine to ensure that Netflix's app "only works with devices that are certified by Google and meet all Android requirements."The problem is that there are countless enthusiasts who enjoy rooting their devices and installing custom ROMs... and don't pirate Netflix content. Yet when these users look for the Netflix app in the Google Play store, they're now greeted with this warning message telling them that the device they legally own is no longer compatible with Netflix's app:Netflix confirmed its updated DRM plans to Android Police, acknlowledging that not only will the app not be downloadable for rooted phones, but the app itself may no longer even show up in the Play store:

Even as Netflix continues to draw top talent to produce original series and movies (while failing to destroy the motion picture industry), it is still being locked out of being considered a "real" filmmaker.The tentative embrace of streaming services' offerings comes with caveats: films must be released to theaters as well to be considered for major awards. This makes things considerably tougher for Netflix since it's faced heavy resistance from theater owners and others who see a lack of release windows as a threat to their existence.The latest rejection of Netflix's advances is happening at France's Cannes Film Festival. Netflix has two films up for consideration for this year's awards, but according to festival organizers, it will be its last unless something changes. Here's the festival's official flip-flop, via David Canfield at Slate:

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The latest document dump by the Office of the Director of National Intelligence (ODNI) -- which contains several documents pried loose by an ACLU FOIA lawsuit -- explains why the NSA ran through the entirety of 2016 without an approved Section 702 request from the FISA court. The short answer is a whole lot of noncompliance. So's the long answer:

The broadband industry is continuing its brave campaign to convince the public that gutting all oversight of growing monopolies like Comcast somehow ends well for the American consumer and smaller Comcast competitors. Last week this involved the cable industry's top lobbying organization (the NCTA) working with the Daily Caller on a poll the industry clearly hoped would show that the public really hates net neutrality protections. The full survey of 2,194 Americans (pdf) uses omission and leading questions to nudge participants toward taking the view that net neutrality protections are "burdensome regulations" imposed by an out of control government.But it didn't work out that way.As it turns out, 61% of the survey participants said they support rules prohibiting giant ISPs like AT&T and Comcast from being able to use the lack of last-mile competition in broadband to their anti-competitive advantage:Note, again, that just 18% truly oppose net neutrality rules, while 21% still somehow have no apparent idea what any of us have been talking about for the better part of the last decade. And while the results pretty clearly suggest that the majority of the public supports the rules (which previous data has already suggested), this being the post-truth era, ISP-funded think tank employees like the AEI's Roslyn Layton were quick to insist the survey somehow proved the exact opposite:

So, for about a day, Microsoft followed the usual course of action concerning the WannaCry malware that made the rounds last week. As we noted, this ransomware/attackware was built off some leaked NSA exploit code utilizing a vulnerability in Microsoft Windows... that the NSA failed to tell Microsoft about. Microsoft had actually patched it a few weeks prior to the code leaking online via Shadow Brokers, but, still... the NSA is supposed to disclose most of these vulnerabilities, rather than hold them for offensive use (that's the theory, at least).Microsoft did its standard "no comment" bit for a day or so, but then on Sunday, its President and Chief Legal Officer let loose on the NSA for its failures that resulted in all of this happening. First, it officially confirmed what people were saying about the code being built off of leaked NSA code:

Nier: Automata is a multiplatform game that I know almost nothing about at all, other than it was released relatively recently and that the PC version of the game was shipped out with some rather frustrating bugs. Apparently the game on PCs doesn't actually ship with true 1080p resolution and has some severe frame rate issues. But, because this is a PC game we're talking about, a fan going by the handle Kaldaien went ahead and released a patch that seems to fix these issues. There is just one problem.Kaldaien's patch checks to make sure the game it's patching hasn't been pirated. And that caused something of an uproar on the Steam forums.

More foreign censorship is coming to American social media companies. Back in January, Facebook hinted it would be at least partially receptive to the government of Thailand's desire to be free from criticism. Fortunately, the Thailand government has been slightly more rational than, say, Austria's by not demanding offending content be removed everywhere. So far, it seems amenable to Facebook just preventing Thailand's citizens from seeing anything deemed insulting to their rulers (dead or alive).The problem right now (at least in the minds of Thailand government officials) is that Facebook isn't making with the targeted censorship quickly enough.

Over the past year or so, we've seen reputation management efforts slide into even shadier territory. Apparently frustrated by Google's unwillingness to humor bogus DMCA notices, rep management con artists began fraudulently obtaining court orders to get content delisted. The process involved fake defendants, fake plaintiffs, and, occasionally, fake lawyers. In one particular case, it involved forged judges signatures.Paul Alan Levy of Public Citizen, along with Eugene Volokh (of The Conspiracy), have performed some masterful detective work to uncover at least one of the people behind this new wave of fraudulent delistings. Richart Ruddie, who has already been hit with a $70,000 settlement in one of his bogus libel lawsuits, appears to be reluctant to live up to the terms of the deal he struck with Levy. According to that, Ruddie -- who is under investigation by the US Attorney's office -- was to start withdrawing his bogus lawsuits.As Levy points out in a recent blog post, Ruddie still has open cases in the Baltimore court system. A libel lawsuit featuring irked dentist Mitul Patel and supposed defamer Matthew Chan has yet to be dumped by Ruddie. Unfortunately, the presiding judge -- despite being provided with considerable evidence of fraudulent behavior -- doesn't appear to be interested in correcting his rubber-stamping of Patel's bogus injunction request.

Last week, there were two widely reported "deaths" on the internet: Pepe The Frog and the MP3 audio codec. Most people seemed to understand what was meant by the former headline -- that you cannot in fact kill a meme, no matter how distasteful its use, and the death of Pepe in an official cartoon strip was a symbolic disavowal of the character by its creator. But on the MP3 issue people seem a bit more confused.Here's what happened: in late April (not sure why there was such a big delay in the explosion of blog posts) Fraunhofer IIS, the research company that holds the patents on MP3 encoders and decoders, announced that it had terminated the licensing program for those patents, for the stated reason that the format has been surpassed by alternatives like AAC (which is also patented and licensed by Fraunhofer). For some reason, a whole lot of media outlets have accepted this at face value and reported that the format is now officially on its way out. "The MP3 is Dead" headlines abound, with only a small few bothering to add qualifiers like "according to its creators" or the classic rejoinder "long live the MP3":Most of the articles buried some attempt to call the move "symbolic" or clarify that the files would still exist towards the end of their coverage, after much eulogizing, but almost none took the time to understand anything about the patent situation, or expose Fraunhofer's huge lie of omission in its announcement.Because here's what really happened: the last of the patents related to the MP3 format expired (or will very soon -- more on that later), so Fraunhofer has nothing left to license. The termination of the licensing program was not a choice, nor was it suddenly motivated by the ascendence of another format that has itself been around for 20 years. Most importantly, despite what many people have reported, this does not mean the death of the MP3. Of course, Fraunhofer's statement didn't contradict any of these things, it just omitted them all and left people with the implication that this move ensured the decline and eventual death of the format -- when in fact it likely means the exact opposite.Prior to this, developers wishing to include MP3 functionality in their software needed a license to do so. If you use Linux, or open source audio tools like the excellent Audacity, you already know this: open-source software doesn't ship with MP3 encoding and decoding capabilities built in, but requires you to separately download and install the codec so as not to pollute the FOSS package with proprietary, patented code. That's no longer the case, and indeed Red Hat has already announced that Fedora will now ship with MP3 capabilities built in (hat tip there to one of the few blogs that is reporting this story properly). Expect Audacity and countless other FOSS apps to follow suit soon. As for non-open-source software, it's one less patent number on the long lists of licenses that live on loading splash screens and About dialogues, and a little bit of saved cost. All around, it's the removal of a barrier to building apps and tools that work with this ubiquitous audio format.Does that sound like death to you?So does Fraunhofer's announcement actually mean anything? Well, a little bit: as noted, it actually hasn't been 100% clear when all the patents would expire, due to the size and complexity of the patent thicket in the overall MPEG ecosystem. It was generally agreed that all patents covering MP3s would expire this year, and many had pegged the date as the end of April, but this was much harder to confirm. Fraunhofer's announcement does not offer any specific information to make this determination easier (since it doesn't admit that this has anything to do with patent expiry at all), but developers like Red Hat are taking it as a sign that the patents are officially expired and the format is free to use.While it's frustrating that Fraunhofer issued such a misleading statement, it's even more frustrating that so much of the media uncritically parroted it. Some also decided to throw in some scattershot links to various questionable studies claiming MP3 compression has negative effects like stripping out the "emotion" from music (that particular study was conducted on just 20 college students, and used MP3s encoded at a bit-rate well below the modern norm for music distribution) to bolster the idea that MP3 compression must be replaced by the still-patented AAC codec. I'm sure Fraunhofer was grateful.So, no: the MP3 is not dead. Its creators have not killed it. Like Pepe the Frog, it's alive and well and probably isn't going anywhere for a long time -- except in this case we can actually be happy about that fact.

Yes, we keep seeing Judge William Alsup appear on these pages, as he keeps getting high profile tech related cases. And, while we don't always agree with his decisions, I don't think that anyone can argue that he isn't careful and thorough in making sure he understands the technology involved in these cases. The most well-known example of this, of course, was the time he taught himself to program Java to understand the deeper issues in the copyright dispute over Java's API's (which helped him make the right call in saying API's were not eligible for copyright protection -- a ruling that was unfortunately overturned by the Federal Circuit). More recently, Judge Alsup also got some attention for demanding lessons and reading materials in how to build LiDAR systems, to understand the trade secrets fight between Uber and Waymo over their LiDAR technology. And, just as a reminder, he's not talking about basic level stuff here:

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