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Over the years, there have been plenty of debates about whether bloggers should be considered journalists and, specifically about if they should qualify to be protected by journalist shield laws. Court rulings on this have been something of a mixed bag with some courts saying that bloggers don't qualify for state shield laws, but over in Pennsylvania there's a recent ruling that went the other way.The case, filed in Beaver County Pennsylvania, and heard in the local state court, found that the blogger who runs BeaverCountian need not respond to a subpoena demanding IP addresses or other identifying info on various commenters. The lawsuit was brought by Connie Javens and Renee Javens Zuk against a bunch of John Does who they accused of posting defamatory comments on BeaverCountian.The court carefully reviewed Pennsylvania's journalist shield law and found that the operator of Beaver Countian is pretty clearly covered. It first notes there's no requirement that the publication be a print publication and further highlights that the operator of the site, John Paul Vranesevich, clearly does journalism with his posts to the site.

For a few years now, we've written about various local governments and their pointless wars against Airbnb, which are often driven by lobbying from the big hotels. Different governments take different approaches, but Miami apparently has an incredibly restrictive regulation that effectively bars short term rentals entirely. Even worse, the mayor has been pushing to make things even worse. Since the current law only is enforced in response to complaints, mayor Tomas Regalado is pushing a plan to more proactively hunt down homeowners who offer short term rentals on Airbnb.And here's where things get... sketchy. There was a hearing and a vote about this plan recently, and a bunch of Miami homeowners went to City Hall to speak out against this plan. Of course, in order to speak before the Miami commissioners considering this, they had to first identify themselves. The commissioners, apparently unswayed by these homeowners or by Airbnb itself, voted 3 to 2 to move forward with the plan (and also threatened to sue Airbnb directly...). But perhaps most ridiculous of all, the city is now looking to go after the homeowners who spoke at City Hall. After all, they identified themselves as homeowners using Airbnb:

FBI Director James Comey is still pitching encryption backdoors, despite there being almost no one -- from the Intelligence Community to legislators around the world -- interested in what he's selling. Comey claims to be sitting on a pile of encrypted devices the FBI can't get into, even with help from outside contractors.His latest backdoor idea was floated at a national security symposium at the University of Texas. Knowing any legislated backdoors might result in US device customers turning to overseas suppliers, Comey thinks he can minimize domestic fiscal damage by getting the rest of the world to fall in line with an idea most foreign governments still find unpalatable, even as they suffer terrorist attacks with a far greater frequency than we do at home. Michael Kan has more details at ComputerWorld:

ISP lobbying and policy groups were, unsurprisingly, quick to mindlessly applaud this week's decision by Congress to kill consumer broadband privacy rules. Actual consumers, however, are far from pleased about Congress' decision to take campaign contributions in exchange for selling consumer privacy rights down river. With cable providers nabbing a growing broadband monopoly, ISPs increasingly merging with giant broadcasters, and neither competition nor regulatory oversight providing much of anything in the way of checks and balances, most people realize we're in for an...interesting ride over the next few years.Amusingly, even many of Donald Trump's most fervent online supporters were shocked by Congress' and the Trump administration's giant middle finger to consumer privacy. Over at Breitbart, traditionally not a hotbed for nuanced understanding of often-complicated tech policy, commenters were quick tocry foul over the vote to kill the FCC's rules:Of course many Trump supporters tried to heap the entirety of the blame in the lap of the GOP, ignoring the White House's wholesale support of the killing of the protections. But it was interesting to see several others actually seeing through the broadband industry's bullshit claim that the FTC will somehow come running to magically fill in the privacy enforcement gaps (it has no real authority over broadband, and ISPs can avoid oversight via common carrier exemptions anyway):Meanwhile, over at The_Donald subreddit, users that traditionally spend their calories happily whining about "snowflakes" and "libtards" suddenly came to the realization that the broadband market isn't competitive, and with neither competitor nor functional regulatory oversight of these ever-expanding telecom giants, the average consumer ("cuck" or not) is going to get screwed by companies like AT&T and Comcast. Repeatedly:Gosh, it's almost as if some regulations are actually necessary, and one has to intelligently debate the subtle, often-complicated nuance of each implementation! As we've noted the rules were created for a damn good reason. Namely that the lack of competition in the broadband sector had resulted in ISPs engaging in some incredibly idiotic behavior. ISPs in recent months have charged consumers more for privacy, given low income customers even worse customer service, or covertly modified user packets to track users around the internet and build entire profiles -- without telling a single god-damned customer this was happening.Suddenly realizing their predicament, numerous Trump supporters urged the President to immediately veto the repeal of the rules, again ignoring the fact that Trump's administration has made it repeatedly clear the push to kill the rules had the administration's full-throated support:Of course the sudden realization that government oversight of giant, anti-competitive corporations is sometimes necessary and even good for consumers has arrived a little late for most of us. It might have been nice if a few of these folks had heeded the warning about hollow populist rhetoric before our collective privacy rights were thrown in the toilet. With the gutting of net neutrality and Trump's likely approval of the massive AT&T Time Warner merger waiting in the wings, there's some additional hard lessons looming for Trump enthusiasts that actually care about tech policy.That said, this is another reminder of how certain issues (most notably net neutrality and privacy) have been quite intentionally shoveled into idiotic partisan grooves -- despite broad, bipartisan consumer support for both concepts. There are those that benefit by having tech policy discourse mired in such callow debate, but it isn't you or I (oh hi, didn't see you standing there, Comcast). Seeing the world entirely as a game of partisan patty cake -- waged idiotically but enthusiastically in team-colored onesies -- remains an ongoing disservice to us all.

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The DOJ's Inspector General has just released its latest report [PDF] on federal civil asset forfeiture. It's not pretty and it confirms many of the criticisms of the program. Law enforcement agencies -- including the DEA, which is responsible for nearly 80% of the $28 billion of forfeited assets over the past decade -- claim the program is key in the dismantling of criminal organizations.However, the facts don't back up this claim.The report opens by pointing out agencies involved in civil forfeiture seem completely uninterested in the actual pursuit of criminals. One multimillion dollar seizure resulted in nothing more than millions of dollars being seized. Any criminals associated with the cash are presumably still out there committing criminal acts.

So we've noted how new FCC boss Ajit Pai has breathlessly claimed that closing the digital divide will be the top priority for his commission. But we've also noted how his actions as FCC boss have run in stark, dramatic contrast to that stated goal. Whether it's making it easier for prison phone monopolies to rip off inmate families, his decision to kill a plan to bring much-needed competition to the cable box, or his attacks on net neutrality, so far Pai has made it painfully clear that protecting AT&T, Comcast and Verizon is actually where his priorities lie.In the last week Pai took his "love for the poor" to soaring new heights by falsely taking credit for year-old job plans at Charter Communications, and cheering as Congress dismantled consumer privacy protections at large ISP behest. But Pai also took what most analysts believe will be the opening salvo in a war against subsidized broadband service for the poor.Last year the Wheeler-lead FCC voted to expand the Lifeline program, first created by the Reagan administration and expanded by the Bush administration. Originally, low-income homes received a $9.25 monthly credit that could be used toward wireless or traditional phone service. The 2015 changes not only gave these homes the option to use this money for broadband in an attempt to modernize the fund, but also placed the lion's share of ISP eligibility administration in the hands of the FCC in an attempt, in part, to better police fraud.A number of states sued over the move, in part because large ISPs (which enjoy even greater regulatory capture on the state level) didn't want the federal government spending money on anything that might improve regional competition. This week, Pai issued a statement saying (pdf) that he would be killing the FCC's legal defense of the 2015 changes, and freezing all federal approval of federal provider eligibility. Why? This power belongs in the hands of the states, not the FCC, claims Pai:

Remember last year when CETA, the Comprehensive Economic and Trade Agreement between Canada and the EU, was on, then off, then on again, then off again, and finally on again? After that, CETA was ratified by the European Union, and now needs to be approved by all Member States' parliaments before it is definitively in force. Well, guess what? One of those parliaments -- in the French-speaking Belgian region of Wallonia, which has already derailed CETA before -- could be about to block it again. As an article originally in The Globe and Mail reports:

Judge William Alsup certainly continues to make himself known for how he handles technology-intensive cases. In techie circles, he's mostly known for presiding over the Oracle/Google Java API copyright case, and the fact that he claimed to have learned to program in Java to better understand the issues in the case (in which he originally ruled, correctly, that APIs were not subject to copyright protection, only to be overturned by an appeals court that simply couldn't understand the difference between an API and functional code). He's also been on key cases around the no fly list and is handling some Malibu Media copyright trolling cases as well.And, last month, he was handed another big high-profile case regarding copying and Google: the big self-driving car dispute between Google's (or "Alphabet's") Waymo self-driving car company and Uber. In case you weren't following it, Waymo accused a former top employee of downloading a bunch of technical information on the LiDAR system it designed, only to then start his own self-driving car company, Otto, which was then bought up by Uber in a matter of months. Most of the lawsuit is focused on trade secrets, with a few patent claims thrown in as well.Either way, Judge Alsup appears to want to be educated on LiDAR before the case begins. In two orders last week, Judge Alsup first asked lawyers for each side to present a basic tutorial on the basics of self-driving car technology:

In the wake of yesterday's unfortunate Congressional vote to kill broadband privacy protections (which had only just been put in place a few months ago, and hadn't yet taken effect) we've been seeing a lot of... bad ideas. People are rightfully angry and upset about this. The privacy protections were fairly simple, and would have been helpful in stopping truly egregious behavior by some dominant ISPs who have few competitors, and thus little reason to treat people right. But misleading and misinforming people isn't helpful either.The story that's getting the most attention and seems to be going viral (or at least on the verge) is this GoFundMe campaign set up by Misha Collins to buy and release Congress's internet data:

At this point, the category of "fake news" has become all but meaningless — a trajectory many of us saw coming the moment we first heard the words or saw the hashtag. That doesn't mean the underlying problems aren't real; many people who talk about "fake news" are trying to express real concern about genuinely troubling trends, but the nebulous label isn't doing them any favors, and is in fact diverting attention from the heart of the issue. With thousands of words a day being expended on the subject with little to no visible progress on understanding it, and companies like Facebook unveiling fact-checking features that may prove to be interesting experiments but are unlikely to make much difference in the long run, it's rare and refreshing to see someone actually get things right. That's why if you're interested in the "fake news" phenomenon, you should read Danah Boyd's new post about the real problems that we can't expect internet platforms to magically address:

Law prof Eric Goldman -- who's covered numerous internet-related cases over the years -- is sounding the alarm about a draft bill [PDF] circulating Congress which could do some very serious damage to the internet itself. The bill aims to undercut Section 230 protections in the name of preventing sex trafficking.

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Monopolies are everywhere, even in the Defending Americaâ„¢ business. Huffington Post's Zach Carter writes about a defense company that's being termed the "Martin Shkreli" of government contracting. In case you need reminding, Martin Shkreli is the hedge fund bro turned pharma kingpin who purchased a drug used by cancer and AIDS patients and raised its price from $14/pill to $750/pill. After an immense amount of backlash, Shkreli promised to lower the price, reneged on that promise, acquired the Wu Tang Clan's one-copy-only $1 million album, and otherwise engaged in personal and professional roguery, including smirking his way through a Congressional hearing on drug prices.The Shkreli process is being used by a defense contractor to inflate prices on what appear to be common manufacturing components, but ones with very few suppliers. When this company steps in, the number of suppliers decreases to one and the component prices skyrocket. This company was spotted by a member of Congress, who made it public with a letter to his colleagues.

Not too surprisingly, VPN providers say they're seeing an interest spike in the wake of lawmakers' full frontal assault on consumer broadband privacy protections. The attack on the rules comes as the broadband industry is suffering from an overall decline in competition, something of notable concern to privacy advocates. Some VPN providers were quick to use the debate as a marketing opportunity, with VPN provider Private Internet Access taking out a front page ad in the New York Times shaming the 50 Senators who sold consumer welfare down river in exchange for AT&T, Comcast, Verizon and Charter campaign contributions.VPN provider NordVPN says it has seen an 86% spike in new subscriber inquiries since the effort to kill the rules began, something it's quick to note happens every time privacy is threatened by myopic lawmakers worldwide:

Given the FBI's skill at cultivating terrorists to arrest and indict, you'd think it would have done a better job handling the planned terrorist attack in Garland, Texas. The two shooters were killed by local police before they could kill any attendees at a "Draw Mohammed" event thrown by anti-Muslim activist (and bumbling litigant) Pam Geller.The FBI appears to prefer "hunting" terrorists who are about 90% talk and 10% insolvent. The list of FBI terrorism busts includes senior citizens, people with cognitive disabilities, and wannabe ISIS militants so terrifying they can't even talk their mom into giving them their passport back so they can go fight for ISIS.When faced with suspects with coherent plans and firepower, the FBI simply motors away from ground zero. Literally. A 60 Minutes investigation into the Garland shooting reveals the FBI was on top of the suspects for several years, but failed to prevent the attack from being carried out. Elton Simpson, one of the shooters, was in constant contact with an FBI informant, and had been tracked on and off by the feds since 2006.

In 2013, Time Warner Cable (since acquired by Charter Communications) struck an $8.35 billion deal with the LA Dodgers to create LA SportsNet, the exclusive home of LA Dodgers games. To recoup its investment, Time Warner Cable demanded exorbitant prices from competing cable providers if they wanted access to the channel. Unsurprisingly, all of Time Warner Cable's competitors in the region balked at the $5 per subscriber asking price.Several years later, a massive portion of Los Angeles still can't watch their favorite baseball team, since Time Warner Cable's asking price not only kept competing cable operators from delivering the channel, but prohibited over-the-air broadcasts of the games.Last November, a new wrinkle emerged in the standoff after the Department of Justice sued AT&T (now owner of DirecTV) for being a "ringleader" in a collusion effort involving the channel. The DOJ effectively claimed that DirecTV, Cox, and other regional cable providers violated antitrust law by sharing private company data during their coordinated effort against Time Warner Cable's exclusive arrangement and higher rates. The original complaint stated that this "unlawful information exchange" violated consumers' rights to fair channel price negotiations:

Last week, the Senate voted 50-48 along party lines to kill consumer broadband privacy protections. That vote then continued today in the House, where GOP lawmakers finished the job, apparently happy to advertise how ISP campaign contributions consistently, directly manifest in anti-consumer policy with a 215 to 205 vote (you can find a full vote breakdown here). The rules, which were supposed to take effect this month, were killed using the Congressional Review Act -- which not only eliminates the protections, but limits the agency's ability to issue similar rules down the road.The broadband industry's effort to kill the rules is one of the uglier examples of pay-to-play government in recent memory. The protections, originally passed last October by the FCC, have been endlessly demonized by the broadband industry, despite the fact that they're relatively straight forward. The rules would have simply required that ISPs are transparent about what they collect (and who they sell it to), and provide working opt out tools. ISPs were also required to have consumers opt in for more sensitive data collection (financial, browser history data).Large ISPs, however, consistently whined about the rules, insisting the rules would "confuse" consumers, and hamper "innovation" in the advertising and telecom space. They also tried to claim that ISPs don't really collect much data on consumers, and what collection that does happen can be easily dodged by using a VPN (neither of which is true). ISPs also tried to claim it was unfair to saddle them with additional privacy regulations not seen by Google and Facebook, intentionally ignoring that the often stark lack of broadband competition makes this an apples to oranges comparison.In an last-ditch attempt to try and convince the House that ISP revenues shouldn't take priority over consumer privacy, a group of around twenty smaller ISPs sent a letter to the House (clearly promptly ignored) trying to explain to them how the lack of competition in broadband made the rules necessary:

In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly."Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW:

The basic impetus behind DRM is obvious: a frantic, misguided desire to make digital products behave like physical ones. But the truth is DRM goes far, far beyond that, restricting all sorts of activities that are intrinsic to the idea of "owning" something. Two people who have thought a lot about this are law professors Aaron Perzanowski and Jason Schultz, authors of the new book The End Of Ownership. This week, Aaron and Jason join the podcast to discuss the book and the worrying status of DRM today.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.

For pretty much all of the history of Techdirt, we've been hearing from the legacy entertainment industries about how the internet has been destroying art and destroying culture. They were making things worse, and we'd have more starving artists and less content -- and whatever content we did have would definitely be terrible. That's the story we were told over and over and over again -- and there are still a few in the industry who pitch this story.The problem is it's simply not true.The New York Times has an article by Farhad Manjoo called, How The Internet Is Saving Culture, Not Killing It, in which Manjoo claims that a cultural shift has been happening, one that could have radical implications for creators:

For many years now, we've been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection -- some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn't apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it's easier just to say "pre-1972 sound recordings.") And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has... made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit).And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren't covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law.Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA's safe harbors don't apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA's safe harbors protected that site, it argued that pre-1972 sound recordings didn't qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit's ruling had to be in error because it was "contrary to the considered view of the United States Copyright Office."The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA's safe harbors. While the 2nd Circuit's ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits -- and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn't see that reading as particularly egregious.Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no "performance" right under NY's state copyright, and thus they can't magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California's state copyright law provided some proto-performance right to pre-1972 works.And, just a few days after that, the state of Georgia's Supreme Court ruled that pre-1972 sound recordings can be played by streaming sites, and some copyright holders can't bring "RICO" claims (IT'S NEVER RICO!!!!!!) just because iHeartRadio plays those songs.As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn't blocked proposals along those lines, none of this mess would have happened. That's why I find it somewhat surprisng, that one of the RIAA's favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more.

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Last time we checked in with (former) Brooklyn prosecutor Tara Lenich, she was facing state charges for abusing wiretap warrants to listen in on conversations between a police detective and one of her colleagues. This stemmed from what was termed a "personal entanglement" between her and the detective.The wiretap warrants couldn't be obtained without a judge's signature. Since there was no probable cause for the warrant, no judge would sign them. Lenich had a solution. She just forged the judge's signature on the warrant. And then she kept forging judges' signatures, stretching out her illicit surveillance for more than a year, with a faked signature on every 30-day renewal.Lenich is now facing federal charges. An indictment handed down by DOJ pretty much repeats the allegation of the state charges, detailing Lenich's long-running, extremely-personal wiretap operation.

Just last week, we wrote about a fairly insane bill up for consideration in the California Assembly. AB-1104 would effectively make it illegal to post or share any "false or deceptive statement designed to influence" an election. As we noted at the time, this is about as unconstitutional as you could possibly imagine. Again, here's the text, as put forth by Assemblymember Ed Chau:

Last week, buried under the fracas surrounding the failed update to the Affordable Care Act, the Trump administration conducted an adorable little stage play few actually noticed. The Administration invited Charter CEO Tom Rutledge to the Oval Office, where the CEO -- alongside Texas Governor Greg Abbott and Energy Secretary Rick Perry, repeatedly implied that Trump's policies were somehow to thank for the creation of 20,000 jobs and $25 billion in investment at the cable giant. Press Secretary Sean Spicer was quick to applaud the "new" jobs on Twitter.At the same time Charter issued a statement expressing "confidence in the deregulatory policies of the Administration," the President's office rushed to release a video patting itself on the back for the "landmark deal":

It's been well-established at this point that red light cameras, those devices that issue tickets and blinding lights to drivers not stopping on red, have always been less about safety and more about the revenue produced by the tickets. That really should be enough a story of corruption for anyone to cast a wary eye at cities implementing these cameras, but you really have to admire the brazen committment to corruption the city of Chicago displayed when initially contracting with the company Redflex for its camera system. The CEO for Redflex was brought up on federal charges for bribing city officials, including offering some condos and cars, because why mess around? Yet, even once we move past the corrupt manner the cameras were put in place, Chicago saw tons of its tickets tossed by a judge who noted that the city wasn't even following its own rules for due process on those tickets. Furthermore, the cameras were set to have a "grace period," the buffer time for which a driver could run a red light and still not be ticketed, of .1 seconds, even as other major cities' grace periods were three times that, and it was laughably clear how this system was designed entirely to bring in city revenue.Well, rejoice Chicagoans, because the city has been dragged into extending that grace period to the .3 seconds shared by other major cities, making the whole thing barely less nauseating.

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When you write enough about trademark disputes, a recurring thing that happens is you keep thinking you've seen it all, but then something insane happens. And truly, after years of writing here at Techdirt, I've come across some mind-bending trademark disputes. But I can't think of a single one that matches the Broadway version of A Bronx Tale changing its set design to appease a cafe owner who insists he is a monarch of Italian pastries.

Qualified immunity -- a legal doctrine that originates from court decisions rather than statute -- received another boost from the federal court system last week. Qualified immunity is the concept that allows overreaching and abusive government employees and officials to stay one step ahead of accountability. If their actions don't "clearly violate" established law and/or precedent, police officers, etc. can walk away unscathed from deprivations of other people's life and liberty.The Eleventh Circuit Appeals Court has declined [PDF] a chance to rehear a case in which the Second Amendment is implicated nearly as much as the Fourth Amendment. In doing so, no further precedent will be set, which just adds to the list of actions law enforcement officers can perform and still expect to be granted qualified immunity. If there's no precedent set, it's pretty hard to "clearly violate" it. Handy.The short story: Andrew Scott was home playing video games with his girlfriend when someone began banging loudly on his door. Since it was 1:30 am, Scott was cautious and answered to door with a gun in his hand, pointed at the floor. He opened the door to see only a "shadowy figure" and began stepping backwards. The shadowy figure was Deputy Richard Sylvester, who immediately shot Scott six times, killing him.Deputy Sylvester admits he never identified himself as a law enforcement officer. He also claims Scott's movement back into his apartment was perceived by him as a Scott attempting to find cover before opening fire. Perception is all that matters, and only one person's perception really matters: Deputy Sylvester's.

The very idea of major movie studios simultaneously complaining about movie piracy during the initial release of a film and instituting long release windows so that films are only in the theater for legitimate viewing has never made a bit of sense. As study after study has shown, one great way to reduce piracy for a film is to make it available for home viewing as early as possible. The reason for this should be obvious: in this case, piracy of a film is a sort of market study, one which informs the studios that a part of the public really wants to watch the movie at home as opposed to in the theater. Trying to force that part of the market into the theater by delaying home rentals or purchases no longer works, because piracy is an option. Stamping out piracy has never worked, but making the film product available the way the customer wants would, at least to decent percentages.And it seems this decades long lesson may finally be finding purchase by its students in the film studios, as several major studios are reportedly considering slashing release windows by a third.

We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

So, last week a clearly troubled individual by the name of Khalid Masood killed four people in Westminster and, as happens all too often after something bad happens, politicians went insane. But no one more so than UK Home Secretary Amber Rudd, who really maybe should have taken a moment or two to find out what the hell she was talking about before going on TV spouting off complete and utter nonsense about technology, social media and encryption. Instead, Rudd, who again, I remind you, is in a very powerful position within the British Cabinet (sort of loosely equivalent to the head of Homeland Security in the US) said this while talking about getting various social media companies to be more proactive in censoring content:

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If you've been reading Techdirt for any time you'll know that copyright collecting societies have a pretty poor record when it comes to supporting the artists they are supposed to serve. Sometimes, that is just a question of incompetence, but often it veers over into something worse, as happened in Spain, Peru and India. TorrentFreak has some interesting news about an audit of the Greek collection society (AEPI). Initially, AEPI was reluctant to hand over the relevant documents to allow the audit to take place, but here's what has just emerged:

If you recall, the cable industry has spent the better part of the last decade arguing that a la carte television (offering users the ability to buy channels individually instead of in bloated bundles) would do two things: raise rates for all consumers, and kill off niche channels, which the industry argued simply couldn't survive outside of the bundle. The industry repeatedly used this logic to justify its decision to avoid delivering not only a la carte, but cheaper and more flexible channel bundles in general.Some ten years later, and you'll be shocked to learn that higher cable TV rates and the death of niche channels... are happening anyway. The Wall Street Journal this week penned an interesting look at how cable companies are increasingly culling lesser-viewed channels from the cable lineup, largely to make way for more expensive programming (read: mostly sports). The report notes that while consumers have endlessly decried the high costs and limited flexibility in the channel bundle, the number of channels in the cable bundle has ballooned all the same:

Twitter's latest Transparency Report contains a new section that shows some governments may be trying to use Twitter's own rules to achieve censorious goals. Legislators and misguided lawsuit plaintiffs have been complaining for years social media services don't do enough to curtail terrorists and terrorism-related content. This has been the subject of multiple lawsuits and multiple Congressional hearings.However, governments can only do so much to pressure social media services into regulating content. If the government steps in to set the rules, then it crosses the line. The US government has, so far, been unwilling to act as a direct censor of content. Other governments have no qualms about censorship, but have found their efforts somewhat blunted by Facebook, Twitter, etc. being US-based companies, where compliance with foreign directives is a nicety, not a legal requirement. Of course, both companies have voluntarily acted as local censors in response to foreign laws and legal threats.Fortunately for these governments, Twitter has a way to let them achieve their censorship goals without having to resort to legal threats or new legislation. The new way to control content lies in the site's terms of service, as the Twitter blog post points out.

This week, some extremely interesting questions were raised by the arrest of a man for tweeting a GIF designed to induce an epileptic seizure (and bragging about it). Though there are a lot of nuances to the legal situation Thad won most insightful comment of the week by rejecting the idea that a GIF can't be a deadly weapon simply because one has never been used to kill before:

Five Years AgoThis week in 2012, the public got a terrifying glimpse of the extent of the NSA's surveillance capabilities thanks to some excellent journalism, which put the agency on the defensive trying to downplay its powers. While this was going on, Senators Wyden and Udall were pressing the Obama administration to open up about its secret interpretation of the Patriot Act.In the fallout of the Megaupload indictment, a restraining order on Kim Dotcom was rendered void by a procedural error, the MPAA was trying to get the site's data retained so it could sue the users (though it quickly tried to backtrack), and scammers were targeting Megaupload users by masquerading as copyright trolls sending settlement letters.This was also the week of a major ruling in the patent world: the Supreme Court effectively rejected the concept of patenting medical diagnostics in Prometheus v. Mayo.Ten Years AgoThis week in 2007, even as the RIAA was trying and failing to escape paying legal fees in a doomed lawsuit against an indebted mother of five, the agency was continuing to defend its practice of suing college kids and trying to get their schools to help — which irritated one university so much that it demanded the RIAA pay up for all the time that was wasted with onerous requests. Meanwhile, NBC Universal and News Corp. were making waves with their YouTube competitor, which you might notice has not become a lasting pillar of the internet, as plenty of people suspected at the time. But this was interesting since Viacom was just revving up in its lawsuit against the real YouTube, which Lawrence Lessig argued was made possible by the Grokster decision, and which was leading to some ironic situations with the company's own star content creators.Fifteen Years AgoThis week in 2002, the world was being buried under a rising tide of spam, but at least society was beginning to accept that internet dating is normal. Not from work, of course, as offices were ramping up their efforts to block various internet activities in a misguided panic about productivity. Of course, some were over-ambitiously predicting that fully half of us would be working from home by 2007, in which case that would presumably cease to be a problem. It was a different time, when Stephen King was selling his novel in phone booths and the UK's Times Online was trying to charge web subscriptions to your phone bill (and, of course, trying to patent the technology). Most importantly, though, we saw an early victory for safe harbors when AOL was found not liable in a copyright lawsuit filed by Harlan Ellison over a Usenet posting.Thirty-Eight Years AgoIf you care about US politics, you know it: it's the TV station you watch slightly less than you say you do and much less than you probably should, and this week was its birthday. That's right: on March 19th, 1979, C-SPAN was unveiled to the country, offering an unprecedented window into the House of Representatives. It opened with a speech by Al Gore, though at the time only 3.5-million homes were capable of receiving it. The Senate would not follow suit and allow itself to be televised for another seven years.

It was October 2014 when FBI Director James Comey made his famous claim that things were "going dark" in the world of law enforcement because of the increasing use of encryption. Since then, Techdirt has had dozens of posts on the topic, many of them reporting on further dire warnings that the very fabric of civilization was under threat thanks to what was claimed to be a frightening new ability to keep things secret. Many others pointed out that the resulting calls for backdoors to encryption systems were a stunningly foolish idea that only people unable to understand the underlying technology could make.One Techdirt post on the topic mentioned a great paper with the title "Keys Under Doormats: Mandating insecurity by requiring government access to all data and communications," which ran through all the problems with the backdoor idea. It was written by many of the top experts in this field, including Bruce Schneier. He's just published another paper, co-authored with Orin Kerr, who is a professor at George Washington University Law School, which looks at the other side of things -- how to circumvent encryption:

When it comes to trademark law, it's worth repeating that its primary function is to prevent customer confusion and to act as a benefit for consumer trust. This mission has become skewed in many ways in many countries, but one of the lessons learned via the Washington Redskins fiasco is that even well-meaning attempts to have government play obscenity cop will result in confusing inconsistency at best and language-policing at worst. When government begins attempting to apply morality to trademark law in that way, it skews the purpose of trademark entirely.To see that on display elsewhere, we need only look to Hungary, where the government is considering stripping the trademark protection for some of the branding for Heineken beer because it resembles the ever-scary demon that is communism.

The Right to Be Forgottenâ„¢ (New York State Edition) is dead. The Media Law Resource Center reports the senator behind the bill (Tony Avella) has pretty much killed it by striking the enactment clause. This means Avella is no longer sponsoring this bill, leaving it to wander the halls of state congress like a child whose father "just stepped out to get some smokes" ten years ago.It's up to some other senator to step up and attach their name (and reputation) to an incredibly stupid law. I doubt there's a line forming, not after the negative press it's received. The Assembly version lives on, however. Assemblyman David Weprin has a matching proposal, with the same broad language that would make it a civil violation (paired with government-levied penalties) for any site/service providing "inadequate," "irrelevant," or "excessive" information someone wants stricken from the face of the internet.This is Weprin's second attempt to institute a New York State-only "right to be forgotten." His previous version is identical to this year's model, which shows bad ideas are just as subject to stagnation as the merely mediocre ones. The difference this year is lots of attention has been paid to Avella's version -- which appears to be nothing but a quick copy-paste job with a new sponsor. The Senate version is an outcast. The Assembly version has merely been ignored for more than year.There's zero chance this will become law in 2017. But, if Weprin's anything to go by, there's always next year. Until its eventual reintroduction, here's Ken White's (Popehat) take on the bill, which will hopefully be passed along to New York legislators for their consideration:

As you may recall, there was a giant fuss last year, when an Australian guy named Craig Wright not only claimed that he was "Satoshi Nakamoto" -- the pseudonymous creator of Bitcoin -- but had convined key Bitcoin developer Gavin Andresen that he was Nakomoto. That was a big deal because Andresen was one of the first developers on Bitcoin and regularly corresponded with Nakamoto (Andresen's own name sometimes popped up in rumors about who Nakamoto might be). Even with Andresen being convinced, plenty of others soon picked apart the claims and found the claims severely lacking in proof.Then, last summer, Andrew O'Hagan published an absolutely massive profile of Wright that only served to raise a lot more questions about Wright, his businesses, his claims to having created Bitcoin, and a variety of other things. However, as we noted at the time, buried in that massive article was a bizarre tidbit about how Wright was actively trying to patent a ton of Bitcoin related ideas. As we noted, the article stated that Wright's plan was to patent tons of Bitcoin stuff, reveal himself as Nakamoto and then sell his patents for a billion dollars.Of course, part of that plan fizzled because basically no one believes Wright was Nakamoto. But, apparently the patenting has continued. Earlier this months, Reuters released a big "investigation" showing that Wright is rushing to get as many Bitcoin-related patents as possible, and has partnered with an online gambling mogul who's a fugitive because of his business dealings (add this to the long list of sketchy connections between Wright and other businesses):

Caution: Copyright gear now available on Teespring »It's that time again: we've launched another new line of gear on Teespring — Caution: Copyright T-shirts, hoodies, mugs and stickers. I hope the design speaks for itself, though whether it will be as controversial as Copying Is Not Theft remains to be seen...We're also very happy to announce that shipping from Europe is now available for all Techdirt gear on Teespring! If you visit any of our campaigns with an IP address outside the US, you'll be given the option to choose the EU fulfillment center instead. The product selection and pricing is slightly different, but our friends across the Atlantic should find the shipping much cheaper and faster. If you don't get the option to choose your location, look for the link in the product description on Teespring, because there is sometimes a delay in getting the global campaigns properly linked. (Here's a direct link to the EU version of this new T-shirt, for convenience's sake.)Check out the Techdirt Gear store for Caution: Copyright and more »

Now that Edward Snowden has done all the leg work, the Intelligence Community is admitting that, yeah, maybe it should have been more upfront about the phone metadata collection. The soon-to-be-former NSA Deputy Director says it might have been better for the agency to be out ahead of the disclosures, rather than forced to play defense.

Late last year, a security researcher noticed what was believed to be an unusual amount of network traffic between Donald Trump's server and a Russian bank. A lot of bad reporting followed -- some it aided by the security researcher's conclusions -- which attempted to tie some spikes in spam to Trump's supposed collusion with the Russians.It was a conspiracy theory borne of a researcher's belief something was happening, even when further research by others showed it to be a whole lot of nothing. At this point, only the die hard conspiracy theorists are still holding onto this spike in traffic between a Trump server and a Russian bank as evidence of anything.Now, there's an additional wrinkle. The FBI is investigating possible connections between Trump and Russia that may have played a part in the election. Nothing has been confirmed by the FBI. As for the spike in network traffic noticed by the researcher, it can still be chalked up to the most boring of non-conspiracy theories: spammers using the same domain name server as both Trump's server and a Russian bank to spam recipients with hotel-related email.The other party that can't let go of this conspiracy theory is the Russian bank's lawyers. CyberScoop reports Alfa Bank's lawyers have issued legal threats to a security researcher behind the Trump-Russia story.

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More than 100 phones taken from arrested Inauguration Day protesters have had their data exfiltrated, apparently in hopes of pinpointing perpetrators of damage and additional (but unarrested) suspects. As Buzzfeed reports, the unusual investigative step doesn't appear to have been hampered by device encryption.

So you may have noticed that Google has been caught up in a bit of a stink in the UK over the company's YouTube ads being presented near "extremist" content. The fracas began after a report by the Times pointed out that advertisements for a rotating crop of brands were appearing next to videos uploaded to YouTube by a variety of hateful extremists. It didn't take long for the UK government -- and a number of companies including McDonald's, BBC, Channel 4, and Lloyd's -- to engage in some extended pearl-clutching, proclaiming they'd be suspending their ad buys until Google resolved the issue.Of course, much like the conversation surrounding "fake news," most of the news coverage was bizarrely superficial and frequently teetering toward the naive. Most outlets were quick to malign Google for purposely letting extremist content get posted, ignoring the fact that the sheer volume of video content uploaded to YouTube on a daily basis makes hateful-idiot policing a Sisyphean task. Most of the reports also severely understate the complexity of modern internet advertising, where real-time bidding and programmatic placement means companies may not always know what brand ads show up where, or when.Regardless, Google wound up issuing a mea culpa stating they'd try to do a better job at keeping ads for the McRib sandwich far away from hateful idiocy:

It was just last week that we discussed the pleasant news that Australia's Prime Minister was backing the idea of reforming the country's safe harbor laws, which are far out of line with much of the world as the result of poor wording. The whole thing can be basically summarized thusly: in Australia, safe harbor protections only apply to commercial ISPs, as opposed to service providers like websites or institutions that offer internet access, because someone decided to use the term "carriage service providers" in the law as opposed to simply "service providers." Essentially everyone agrees this was done in error as opposed to intentionally, yet it's been decades and nobody has bothered fixing the law.Until some members of the government revived an attempt to do so and got the Prime Minister's support. Doing so would have put Australian law on equal footing with the EU and American safe harbor provisions, meaning that service providers generally couldn't be scapegoated for the actions of a third party. You know, holding the actual people culpable of a crime accountable instead of the service provider.Well, that sane approach was no match for lobbying dollars, it seems, as the Australian government is yanking the safe harbor reform section out of its copyright bill entirely.