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We've got a double winner on the insightful side this week, with PaulT taking both the first and second places spots. In first place is his response to our thoughts on why Netflix was unconcerned about the hacker trying to extort them by threatening a leak:

Five Years AgoThis week in 2012 the USTR, as it does every year, released its ridiculous Special 301 list of naughty countries, right around the same time that Chris Dodd was rewriting Hollywood history to thank IP laws for all of it. The UK was doing its part to stay off the list, apparently, with the High Court ordering The Pirate Bay to be blocked (and, of course, driving record traffic to the site). Techdirt friend Dan Bull — an artist whose single had just hit the charts with the help of piracy — shared his thoughts on the block with a guest post.Ten Years AgoThis week in 2007 started the same way: with a silly Special 301 "watch list". The Pirate Bay was just beginning its growth as a political movement, and the author of a major UK copyright report was admitting that the evidence supports shortening copyright terms. The folks behind AACS, the new copyright protection scheme for DVDs, were learning all about the Streisand Effect in their attempt to suppress information about the technology — and also giving the Digg community a chance to demonstrate its control over the site. Meanwhile, the Google/Viacom lawsuit was moving slowly forward, and the UK's Premier League was getting in on the action.Fifteen Years AgoThis week in 2002, record labels were still excitedly announcing lacklustre digital music services, online radio stations were protesting onerous fees, and the new Eminem album was gearing up to be the largest copy-protected release to date. Deep linking reared its head again as a legal issue, online scams were going strong (and working as decent retirement plans for some, it seemed) and the crazy new idea of phones with WiFi was just on the horizon.Eight-Hundred And Two Years AgoToday we look back on the Magna Carta as a pivotal moment in the history of law (or just as an archetypal piece of general knowledge trivia), but at the time it was a stopgap solution in the midst of a political dispute between King John of England and some rebellious Barons. An important milestone in that dispute came on May 3rd, 1215 when the rebels officially declared against the King and issued their legal demands.

It seems there must be something in our human DNA, something that hasn't been filtered out over the generations, that causes the masses to engage in moral panics. When you peruse our previous posts about moral panics new and old, it highlights how laughably absurd they tend to be. Specifically, if past is prologue, you get a fair understanding of how our current moral panics will be viewed in the future, as we laugh now at the consternation caused by such demons as telephones, comic books, chess, and pencils. And that laughter causes no pause about the current moral panics surrounding social media, certain forms of music, and video games.Sandwiched in between antiquity and modernity is Dungeons & Dragons, the popular tabletop role playing game that experienced its own moral panic decades ago, but which has since risen dramatically in popularity. This game, once thought by parents to create potential Satan worshipers out of their little darling children, has already been pushed as a fantastic starting point for would-be creative writers. More recently, however, therapists have begun using the game as a therapeutic tool in sessions with patients. Adam Davis runs one of these groups using D&D in therapy, called the Wheelhouse Workshop, and details one story in which he uses the game as a therapy tool.

We see all kinds of dumb and frustrating examples of trademark bullying here at Techdirt. From questionable claims of infringement entirely, to the over-policing of broad or generic terms that never should have been granted trademark protection to begin with, to vice-like licensing terms that appear to be designed more to put licensees out of business rather than building any kind of long-term business model out of trademark rights. That said, at least in most of these stories the offending party has the trademark its bullying with. That may not be the case when it comes to Worldwide Entertainment Group Inc., which is being sued by a Coatian festival promoter after being milked over a trademark the promoter says Worldwide doesn't actually have.

Another small dart has been lodged in the thigh of the Fifth Amendment by the courts. A Miami, FL federal judge has ruled that defendants in a sex video extortion case must turn over their phones' passwords.

In the world of law enforcement, there's very little more ridiculous than police unions. That's the unfortunate side effect of feeling compelled to defend every "bad apple," no matter how rotten they are. The Cleveland police union has reached the apotheosis of law enforcement spin -- this time taking the form of a lawsuit that looks like a punchline.First, some backstory. In 2014, 12-year-old Tamir Rice was killed by a Cleveland police officer as he played with a toy gun in the park. A caller reported Rice, saying he was waving around a gun. The caller also said it was likely the person they saw was a juvenile and the gun was likely a toy. This information was not passed on to the responding officers, who boldly/stupidly raced across the park lawn to within feet of where Rice was standing and shot him two seconds after exiting their vehicle. The "gun" Rice had was an Airsoft replica with the bright "not a gun" tip removed.Had the dispatcher passed on the mitigating factors, Tamir Rice might still be alive. Had the officers decided to approach this tactically, rather than like an out-of-control half of a buddy-cop movie cliche, Tamir Rice might still be alive. But, as the Cleveland Patrolmen's Association sees it, the problem wasn't bad communication and worse tactics. The real problem here is toy gun makers.

Spain is perfecting regulation no one asked for. The country's government is in the business of determining which jokes are funny… and which punchlines should be greeted with criminal charges.A few years ago, jokes of the "too soon" variety were met with calls for social media censorship. The assassination of a member of the People's Party was met with the usual interactions: a mix of genuine condolences and mockery. The assassinated official wasn't universally loved, having voted herself a 13% pay raise while simultaneously supporting a 12% budget cut to programs she didn't care for.Some social media reactions were terrible. Reactions from government officials were even worse. One official said social media users shouldn't be allowed to denigrate others. Another vowed to "clean up undesirable social media."Flash-forward three years and a Spanish citizen is again dealing with government regulation of social media, as well as its idea of what is or isn't proper discourse. And, oddly enough, another assassination of a political figure is at the center of it, albeit one where adverse comments and jokes could not possibly be of the "too soon" variety. (via Reason)

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Before we dive into the latest IC transparency report [PDF] from the Office of the Director of National Intelligence, let's take a moment to recognize the small miracle that it even exists. If NSA contractor Ed Snowden hadn't decided to color outside the official whistleblowing lines, we'd still be expected to put our complete trust in the government with zero evidentiary support.That being said, the transparency report is still several steps removed from actual transparency, but it will have to do for now. What can we learn from it, even with many of the numbers being seemingly meaningless thanks to purposefully-missing context? Several things, actually. Marcy Wheeler has torn apart the report across four posts, each dealing with the report's fuzzy numbers (or, in the case of the CIA's contribution, a lack thereof).One of the first misleading numbers in the report is the supposed single search of the NSA's 702 collections by the FBI for non-terrorism-related purposes. According to the report, this happened exactly once. But that's actually not true. The FBI makes far more frequent use of NSA data for non-terrorism investigations. It just does it in a way that won't show up in the IC's transparency report. Parallel construction is the FBI's friend.

So we've noted for years now how giant broadband ISPs have made a 20-year career out of taking taxpayer money, subsidies and other perks in exchange for broadband networks they only partially deliver. When it comes time to hold these large ISPs feet to the fire, well-lobbied lawmakers and revolving door regulators pretty consistently do their best to ensure accountability never happens. Obviously this is just one of numerous problems leading to a lack of broadband competition in the United States, where two-thirds of homes lack access to more than one ISP at speeds of 25 Mbps.And while it makes perfect sense for ISPs to want the best return on their investment, problems have arisen as broadband is increasingly seen as a necessary utility, but government refuses to stand up to some of the most politically powerful companies in America. ISPs don't want anybody dictating where they can and can't deploy service, but at the same time their lobbyists are passing protectionist state laws preventing towns and cities from improving their broadband fortunes...even in areas incumbent ISPs refuse to serve.AT&T has come under fire in recent months after allegations emerged that the company was avoiding deploying upgrades to low-income neighborhoods. The National Digital Inclusion Alliance (NDIA) and a Cleveland-based group called Connect Your Community released a report last month claiming AT&T was engaged in "digital redlining" -- or intentionally only upgrading higher-income customers. The report notes that while AT&T provides scattered speeds of between 18Mbps and 1Gbps to the Cleveland suburbs, poorer neighborhoods in central Cleveland remain stuck on speeds between 768kbps to 6 Mbps.A map from the report highlights what this not-so-subtle practice looks like:The groups have threatened to sue AT&T, stating that FCC data and "city construction permits and other information" support its case that AT&T intentionally ignored low-income communities. AT&T, as you might expect, insists that it has done nothing wrong:

This long Austin American-Statesman investigative report details apparent police brutality as discovered by parents who were kept in the dark by local cops about how their teenaged son actually died. It all started with their 5'4" 110-lb. 18-year-old suffering through a bad acid trip while hanging out with friends. It ended in the hospital with their son brain-dead, on life support, and the arresting agency unwilling to say anything more than their son had suffered a "head injury."To the law enforcement agency, it's just another in-custody death. To the parents of Graham Dyer, it's long-delayed closure to a chapter kept deliberately unfinished by the law enforcement agencies who took Dyer into custody and returned him to his parents more dead than alive.In Texas, the system is stacked against victims of police misconduct. State law, upheld by court decisions, make it almost impossible to mount a lawsuit against law enforcement officers. Courts are generally receptive to law enforcement claims and extremely hesitant to strip officers of immunity, no matter how egregious the apparent civil rights violation. This situation is made much, much worse in Texas where documents needed to propel a lawsuit past a judge's first reading often can't be obtained from the law enforcement agency holding them.

Recently, we discussed an odd post by the American division of Atlus, the company behind the recently released game Persona 5. The post basically outlined restrictions on streaming the game in the popular "let's play" format. Those restrictions were pretty clearly geared towards keeping spoilers for the game's stories off of the internet, with indications that discussing or streaming game content that occur after an in-game date was verbotten. The post was also couched in threats for DMCA notices, which is odd because spoilers aren't what copyright law was designed to combat. The public backlash was fairly uniform, with Atlus coming out not looking particularly good as a result.It took a while, but Atlus has finally responded. While it positions this response as a loosening of the restrictions on streaming, it still keeps all of the worst aspects of the original restrictions in place.

It was way back in the early part of 2016 that the rumors came out that the Oakland Raiders football team would be moving to a new home city. Fans were understandably upset and voiced their displeasure in a variety of ways, but the dumbest of those ways certainly must have been Lane Blue's attempt to trademark the team name in conjunction with all of the different potential landing cities the team was rumored to be moving to, including the "Las Vegas Raiders." Lane wasn't the only sad Raiders fan to attempt this, it seems, as we now see reporting on his and other trademark applications being denied for obvious reasons.

Ahead of his testimony before the Senate Judiciary Committee on Wednesday, FBI Director James Comey released his planned testimony, which covers a variety of subjects Comey hoped to cover during the hearing. A lot of the talking points were touched on, but Comey spent most of his time fielding questions from pissed-off senators about how much they were disappointed in recent FBI investigations.The testimony Comey planned to give contains another discussion of the FBI-centric "going dark" issue. According to Comey, device encryption has blocked FBI's searches nearly 50% of the time, preventing it from pulling data from more than 3,000 phones. Comey also says other approaches -- such as using metadata or cellphone forensic software -- won't work. They're too expensive and won't scale. Left unsaid is Comey's desire for legislation or a few precedential court decisions to force manufacturers to compromise their customers' security.He makes this argument by conflating privacy and security and using this conflation to arrive at a completely wrong conclusion. From Comey's testimony [PDF]:

One of (several) reasons why American broadband is so uncompetitive is the fact that we continue to let giant broadband mono/duopolies quite literally write awful state telecom law. As we've long noted, more than twenty different states have passed laws making it difficult to impossible for towns and cities to improve their local broadband networks -- even in instances when the entrenched duopoly refuses to. Many of these laws even ban towns and cities from entering into public/private partnerships with the likes of Google Fiber. It's pure protectionism.Maine is the 49th ranked state in broadband speed and coverage -- in large part due to rural markets. Despite countless years of subsidies, broadband providers consistently refuse to seriously upgrade these areas at any scale due to costs. And yet they refuse to let the towns do it themselves, either. State Representative Nate Wadsworth has introduced HP1040, aka "An Act To Encourage Broadband Development through Private Investment." Except like so many of these bills, the proposed law's name is a stark 180 from what the legislative measure actually does.You see Wadsworth is a state chair for ALEC, the group most ISPs use to help them ghost write these protectionist bills. And Wadsworth's proposal, like countless others, imposes a laundry list of restrictions on any town or city that might dare try to do something about the fairly awful service state residents receive from the likes of Frontier Communications and Comcast. From limits to how money can be raised to requirements for repeated public referendums (at which point deep-pocketed ISPs outspend local advocates), communities suddenly face all manner of restrictions on what they can or can't do in their own backyards.Page Clason, Member of the Islesboro Broadband Committee, described HP 1040 this way:

The UK's long-gestating Digital Economy Act has finally gone into force. The law is mainly interested in porn and pirates -- two issues most of the UK public is far less interested in having subjected to intrusive regulation.But just keeping an eye on who is or isn't availing themselves of porn/torrents isn't the only intrusive aspect of the Act. As Joseph Cox of Motherboard points out, an amendment to the law grants some pretty scary new powers to UK law enforcement, allowing them to kill citizens' means of communication.

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In his testimony yesterday in front of the Senate Judiciary Committee, FBI Director James Comey became the latest government official to speak out against Wikileaks. In doing so -- even though he very carefully worded his answers to Sen. Ben Sasse's softballs -- Comey also made a very dangerous insinuation about what separates "real" journalists from Wikileaks.From the transcript published at the Washington Post:

Eager to ignore the broad, bipartisan support net neutrality enjoys, nine GOP Senators this week introduced legislation that would kill the FCC's net neutrality rules. Senator Mike Lee's "Restoring Internet Freedom Act" would prohibit the FCC from classifying ISPs as common carriers under Title II of the Communications Act and "from imposing certain regulations on providers of such service." In other words, it's a parallel attempt to kill net neutrality in Congress while FCC boss Ajit Pai tries to kill the rules via FCC process.Lee didn't release the text of the bill, but it's expected to look very similar to a 2016 bill he introduced during the 114th Congress with the same 8 co-sponsors. Lee tries to argue in a statement over at his website that his bill is necessary to keep "bureaucrats" away from "engineering the internet's infrastructure":

If ever there was a thing that the founding fathers were incapable of foreseeing as they created the foundational law of the United States, certainly that thing must have been how the chief tool used in copyright enforcement has become automated bots used to auto-generate DMCA notices. It's something we, however, have become quite familiar with by necessity, with reports indicating that roughly all of the DMCA takedown or delisting notices received by sites like Google are generated from these bots. Whatever one might think of publishing companies and their policing partners using this tool at all, there is certainly no serious argument to be made that collateral damage from their use isn't a real problem. When public political organizations, streams for awards ceremonies, and even NASA landing on Mars gets flagged by these auto-systems, it's time to admit there is a problem.But it's a problem not being addressed, it seems. The most recent example of this comes to us from the Premier League, which has long waged an overreaching war on streams of soccer games, and most recently asked Google to please delist all of Facebook as part of it.

When it comes to online privacy, the European data protection authorities tend to be quite interventionist as they try to police the movement of personal data within and out of the EU. The concerns over the Safe Harbor and Privacy Shield frameworks are one manifestation of this. Another is the increasing EU scrutiny of Facebook's purchase of WhatsApp.A couple of years after Facebook acquired WhatsApp, the latter announced that it was updating its terms and privacy policy so as to allow user data to be transferred to its parent company. Johannes Caspar, the Commissioner for Data Protection and Freedom of Information in Hamburg, where Facebook has its German headquarters, was unhappy with that move. He saw it as harmful to users' privacy, not least because there was no way to opt out of the data sharing. In September last year, he ordered Facebook to stop collecting data from WhatsApp, and to delete anything it had already brought across. Facebook appealed against the decision, and the Administrative Court of Hamburg has now handed down its ruling, which is to deny the US giant's request for Caspar's order to be revoked (pdf):

James Comey testified in front of the Senate Judiciary Committee today where he faced an oddly-unified bipartisan group of senators irritated with the FBI (but for different reasons). Most senators took a large amount of the their time during the first round of questions to not actually ask questions, but to express their displeasure with the Clinton email investigation and the ongoing Trump-Russia investigation.The opening statements varied depending on the party of the senator addressing James Comey. Comey had very few answers about various Trump-related investigations (which are still ongoing), but made the most of his opening statement by dodging the questions and making a sales pitch for the renewal of Section 702 -- the statute permitting the NSA's internet data/communications collection the FBI makes frequent use of.According to Comey, the 702 collection is essential to national security. Possibly true. But not so essential that concerns about Fourth Amendment violations should be swept aside. This was only one of the sales pitches Comey managed to squeeze in during questioning.He also touched on a couple of other issues worth noting. Both involve legislation. After pitching a clean Section 702 renewal, Comey spent some time talking around the subject of backdoor 702 searches, noting that "all courts" have found the FBI's secondhand domestic surveillance lawful… without specifying the only court to really reach this conclusion is the FISA Court. And this court also found the NSA had abused its collection repeatedly. This court also approved zero 702 applications in 2016 and the NSA itself has shut down part of its upstream collection because it kept grabbing too many communications from US persons.This shutdown will affect the FBI's backdoor searches. Comey, of course, didn't refer to them as backdoor searches, but did make it clear the FBI would be ever so pleased if Section 702 was renewed with a minimum of legislator interference.The FBI's own collection efforts were a concern to Comey as well. Comey continued his misrepresentation of the statutes governing what the FBI can collect with National Security Letters. According to the FBI director, the only thing standing between what the FBI can legally get with NSLs (subscriber info and billing records) and what it wants (a very long list of things, including web history and geolocation data) is a "typo." Not sure which part of the statute contains the typo, but Comey claimed to be able to channel the intent of legislators who passed it back in 1986.Not that the lack of statutory authority has prevented the FBI from demanding more than it's supposed to get. An NSL published by Yahoo contained a much longer list of requested data than is permissible under the law. Comey expressed his desire to have Congress take another look at the statute and see if it doesn't agree with Comey's assessment.The other legislative issue near and dear to Comey's heart was addressed a bit more obliquely, but managed to make it clear the current administration would be far more sympathetic to Comey's other backdoor plan. Both Sen. Orin Hatch and Sen. Dianne Feinstein spoke favorably about encryption backdoors. Comey noted the Obama Administration wasn't interested in passing bills containing encryption bans or backdoors, but the new team in the White House has possibly expressed an interest in doing just that.

We talk a lot around here about the many problems with the copyright trolling industry. Those problems take several forms, but they can be best globalized as a problem of the copyright troll's basic business model. These groups claim to tackle piracy in defense of the content creators with whom they contract, but they do so not by spear-fishing confirmed infringers with sound evidence, but rather they cast as wide a net as possible based on flimsy evidence at best, all in the hopes of producing enough settlement money from scared recipients to make some coin. This bird-shot approach, to further mix my hunting analogies, inevitably creates serious collateral damage and exposes how poorly constrained the technology used to identify infringement is to reality.To see this at work in the most ironic and palm-facing degree, we can take a look at IP Arrow. We've discussed IP Arrow in the past, in particular its happily sending out bogus DMCA notices for legit businesses that seemed to falsely claim that its clients own the rights to child pornography. Also, we wrote about how the owner of the organization owed millions of dollars to Hollywood for having run his own warez site years previous. More recently, it seems that either the technology IP Arrow is using to identify infringing parties for its clients has taken a really stupid turn for the worse, or the organization has graduated to trying to use the DMCA process to stifle criticism.

Last year Russia passed a new surveillance bill that promised to bring greater security to the country. As is par for the course for these types of bills, the legislation did the exact opposite by not only mandating new encryption backdoors, but by also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized. The end result? Russia's pledge to shore up security wound up making everybody in the country notably less secure.And now Russia appears poised to dramatically up the ante.Alongside the country's attack on encryption, Russia has dramatically ramped up internet filtering and censorship in the apparent hopes of making the great firewall of China seem reasonable. And a new bill being pushed quickly through the Russian legislature would not only impose fines of up to $12,400 per breach on search engines that still link to these banned sites, but would require VPNs to immediately cease providing access to these blocked domains as well. If they refuse, these VPN providers risk being blocked themselves:

US government requests for Facebook data are up, according to the company's latest biennial transparency report. Total requests jumped from 23,000 to 26,000, as compared to the first six months of 2016. Overall, it's an increase of about 12,000 requests over 2015's total.At this point, Facebook is fielding about 1,000 more requests a month as compared to 2015. While there's not a whole lot of detail in the presented data, the social media platform is now able to report something it hadn't been able to do before the passage of the USA Freedom Act. Both of the 2016 reports now show what percentage of data requests come with a gag order attached.According to the report, more than half of the orders received in 2016 came with gag orders: 56% for the first half of the year and 50% in the second. Gag orders are standard operating procedure for National Security Letters but those only make up a small percentage of the requests Facebook receives: less than 1,000 total for all of 2016.A majority of the requests are search warrants, which often come with limited-time gag orders. Or at least they should be limited-time. As we saw in Adobe's recent court win, search warrants appear to be arriving with indefinite gag orders when only delayed notification is justified. Facebook has been pushing back against over-broad requests and government secrecy, but its success has been limited.Also of interest is the lack of FISA orders. For the first time since Facebook began reporting these numbers, it received no FISA orders for content or non-content data. This would seem to confirm an apparent Section 702 blockage at the FISA court. As was noted here earlier, the FISA court apparently approved zero government requests under Section 702 (internet content/non-content collections) in 2016. The last approved order of 2015 would have carried over into the first couple of months of this year, which may be why Facebook shows FISA requests in the first six months of last year, but nothing past the point of that order's expiration.So, the government has begrudgingly agreed to a little more transparency, but is ensuring much of what's behind the numbers remains firmly in its grasp. Gag orders accompany at least half the requests the government sends out, and the number of requests continues to increase. At this point, Facebook fields a couple thousand gagged orders a month, with most, presumably, tied to sealed cases and indictments, which kind of makes a mockery of this whole "open court" system. Considering Facebook maintains control of users' accounts, communications, and data on its platform, it makes little sense to withhold notification for extended periods, if not indefinitely.

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Back in February, we had former top FCC staffer Gigi Sohn on our podcast and she laid out the likely strategy of Ajit Pai and Congress to kill net neutrality while pretending that they were protecting net neutrality. And so far, it's played out exactly according to plan. Each move, though, seems to be getting reported by most of the tech press as if it's some sort of surprise or unexpected move. It's not. There's a script and it's being followed almost exactly. So, as a reminder, let's go through the exact script:Step 1: Set fire to old net neutrality rulesNew FCC boss Ajit Pai announces that he's going releasing a plan to roll back the Open Internet rules that his predecessor, Tom Wheeler, put in place two years ago. This has been done, and Pai has released what's called an NPRM (a Notice of Proposed Rulemaking) which opens up a comment period. Once the comment period is over, the FCC can release its new rules and vote on them. The problem -- as basically everyone in telco knows (but which almost never gets mentioned in the press coverage) is that the FCC almost certainly will lose in court if it rolls back the rules that Wheeler put in place. This is important. Contrary to what you may have heard, the FCC isn't allowed to just willy nilly flip flop the rules.Indeed, the FCC is barred by statute from putting in place "arbitrary and capricious" rule changes. Basically, every lawsuit challenging any FCC rulemaking includes claims that they were "arbitrary and capricious." And, to get over that burden, the FCC can't just change the rules willy nilly, but have to lay out clear evidence for why a change in policy is necessary. That's why the Wheeler Open Internet rules have been upheld by the DC Circuit (who shot down previous rules). Wheeler effectively laid out the clear reasons why the market had changed drastically in the decade plus since the FCC had declared broadband to be an "information service" rather than a "telecommunications service" (under Title II).For Pai to successfully role back those rules, he'd need to show that there was some major change in the market since the rules were put in place less than two years ago. That's... almost certainly going to fail in court. Again, this is important: Pai can change the rules, but that rule change will almost definitely be shot down in court. While many are assuming that the Pai's new rules are a done deal, they are not. I mean, he's almost certainly going to ignore the public outcry about how rolling back these rules will harm the internet. And he's almost certainly going to continue to blatantly misrepresent reality and (falsely) claim that investment in broadband has dropped because of these rules (despite tons of clear evidence that he's wrong). And, then he will pass new rules. But those rules will be challenged and he will almost certainly lose in court, and the old rules would remain in place.Again: basically everyone in the FCC (including Pai) and in Congress know this. The press not reporting on this is a shame.Step 2: Congress to the "rescue"Congressional net neutrality haters (e.g. those receiving massive campaign contributions from big broadband players...) are well aware that Pai's plans have no chance in court. Yet, they want there to be this kind of uproar over the plans. They want the public to freak out and to say that this is bad for the internet and all that. Because this will allow them to do two things. First, they will fundraise off of this. They will go to the big broadband providers and act wishy washy on their own stance about changing net neutrality rules, and will smile happily as the campaign contributions roll in. It's how the game is played.The second thing they will do... is come to "the rescue" of net neutrality. That is, they will put forth a bill -- written with the help of broadband lobbyists -- that on its face pretends to protect net neutrality, but in reality absolutely guts net neutrality as well as the FCC's authority to enforce any kind of meaningful consumer protection. We've already seen this with a plan from Senator Thune and this new bill from Senator Mike Lee.Unfortunately, some reporters will buy this argument and pretend that these bills will "save net neutrality." The article at that link is correct that a change in administrations can lead an FCC to try to flip flop again on net neutrality, but totally ignores that any such attempt would totally flop in court as arbitrary and capricious, without actual evidence of a changed market. The article is also correct that Congress should fix this permanently, but misses two key factors: (1) Congress is way too beholden to broadband lobbyists to come up with anything that actually protects neutrality and (2) the plans presented so far are designed to kill net neutrality while pretending to "protect" it.This latter point is why Verizon's General Counsel can say with a straight face that no one wants to kill net neutrality. Because he's going to be supporting Congress' plan that pretends to save it. That's because the Congressional plans do put in place a few bright line rules that seem important to net neutrality -- saying that it bars "paid prioritization," throttling and the like. The problem is that those are last decade's net neutrality issues. The big broadband providers have already said they're fine with those kinds of rules because they've found ways around them.Specifically, the big broadband providers are doing things like deliberately overloading interconnect points to force large companies like Netflix to pay not to be throttled. Or they're putting in place totally arbitrary and low data caps, and then offering to "zero rate" certain services, pretending that this is a "consumer friendly" move. Again, as we've said dozens of times, you're not a hero if you save people from a fire that you set yourself. And that's exactly what zero rating is. Access providers set low data caps themselves and then "save" their customers from having to pay for going over those caps... but, only if you use approved services (often ones owned by the access provider themselves).And this is the problem. Under the existing Wheeler rules, the FCC was able to adjust and respond to efforts by the telcos to continue to abuse net neutrality and block the open internet, while pretending they were doing something else. The Congressional proposals for "net neutrality" actually take away that authority from the FCC. In other words, they are opening the floodgates for the big broadband access providers to screw over customers, by saying (1) you can't do the obviously bad stuff, but you can do the hidden bad stuff that's effectively creates the same problems and (2) the FCC can no longer stop you from doing this.That's not a plan to save net neutrality or an open internet. It's a plan to bless the access providers' plans to start walling off the internet and getting to double and triple charge companies for offering services. This is a plan to put tollbooths on the internet, but in ways that are less obvious than people were first worried about.Step 3: Leverage the ControversyMeanwhile, everyone who wants to kill net neutrality knows what's going to happen here. They will use the fact that Pai's rules absolutely can't withstand scrutiny in the courts to step up and push for the Congressional "rescue." Even more likely: they'll say that we need Congress to step in to "prevent uncertainty" from the inevitable lawsuits. Believe it or not: they're happy that this will get tied up in courts for years, because that gives Congress extra cover to push through this pretend "compromise." You'll hear lots of tut-tutting about "uncertainty" that has to be stopped. But, like zero rating and the fact that it's not heroic if you rescue people from your own fire, the fire here is being set by Ajit Pai and big broadband's key supporters. They're setting this fire of rolling back Wheeler's rules solely to whine about the uncertainty that will be caused by their own unnecessary rule change... and then will say that "only Congress can settle this."So, what does all this mean? It means people who are mad about this (as you should be) need to be direct in what they're talking about here. Don't pretend that Pai's rule change is the real problem. It's not. It's just a mechanism to get to new regulations from Congress that will cause real problems. Don't let anyone say that the Wheeler rules have harmed the internet or investment. They have not. Don't let anyone (especially supporters of killing net neutrality) launch into self-pitying cries about "uncertainty." Remind them that the uncertainty is coming from them and their supporters. And, most importantly, don't pretend that a bill from Congress pretending to "save" net neutrality will actually do so, when it's quite obvious that the bills being offered will undermine our internet, help big broadband screw over users, and diminish competition.

A hacking group calling itself TheDarkOverlord (TDO) has tried, and failed (so far) to extort Netflix and several other companies after stumbling onto a server of unreleased content. TDO was apparently able to compromise the servers of an audio post-production company by the name of Larson Studios. Among the content acquired from the hackers were ten episodes of the as-yet-unreleased new season of the popular Netflix show "Orange is the New Black," which isn't supposed to see full release until June. Outside of some free advertising in the news media and some wasted calories, the group's efforts don't appear to have culminated in much.At first, the hacking group tried to extort the post-production company, which didn't go very well. The group claims that Larson originally agreed to pay 50 bitcoin (around $67,000) to prevent the release of the compromised content, but then didn't follow through on the payment after a December 31 deadline. TorrentFreak claims they were shown a copy of a contract purportedly signed by Larson Studios, but the group claims that while the contract was printed, signed, scanned and returned to them, Larson got cold feet about paying up.The hacking group then shifted its attention to trying to get Netflix to pay up to avoid public release of the episodes. After apparently getting no initial response from the giant streaming company, the hacking group announced on Twitter it had leaked the first episode in the new, as-yet-unreleased fifth season of "Orange is the New Black" on BitTorrent networks:

One of the great stories in unintentional consequences in technology in the past few years has been Pokemon Go. The augmented reality game application has resulted in all kinds of legal action and consequences, including New York declaring playing it to be a sex offender parole violation, lawsuits stemming from players of the game wandering onto private property and annoying the residents there, and even the DOD releasing guidelines for safe Pokemon hunting.What Milwaukee did in the wake of this legal activity made less of a media splash, but that appears to be changing. The Midwest city decided to add a city ordinance requiring a permit from any augmented reality game makers that made use of locations within the city. The ordinance reads:

Fake images, often produced using sophisticated software like Photoshop or the GIMP, were around long before so-called "fake news" became an issue. They are part and parcel of the Internet's fast-moving creative culture, and a trap for anyone that passes on striking images without checking their provenance or plausibility. Until now, this kind of artful manipulation has been limited to the visual sphere. But a new generation of tools will soon allow entire voice patterns to be cloned from relatively small samples with increasing fidelity such that it can be hard to spot they are fake. For example, in November last year, the Verge wrote about Adobe's Project VoCo:

Former members of Team Espionage recently expressed their concern that the Shadow Brokers' dump of NSA Windows exploits had done serious damage to the security of the nation. The unwanted exposure of NSA power tools supposedly harmed intelligence gathering efforts, even though the tools targeted outdated operating systems and network software.However, there are still plenty of computers and networks online using outmoded software. This makes the released exploits a threat (especially those targeting XP users, as that version will never be patched). But not much of a threat to national security, despite the comments of anonymous former Intelligence Community members. It makes them a threat to personal security, as Chris Bing at CyberScoop points out:

In the post-Snowden era, we don't have to tell you how important it is to stay engaged with (and vigilant about) the surveillance state in America. Jennifer Granick is the Director of Civil Liberties at the Stanford Center for Internet and Society, and author of the new book American Spies — and this week she joins us for an in-depth discussion about the surveillance state today. Of course, shortly after we recorded this podcast, the NSA made major changes to one of its surveillance programs, so Jennifer returned to record an addendum examining this latest news, so make sure you listen to the end!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.

Because we talk so much about fair use here, we often likewise find ourselves talking about parody. Parody is one of the forms of content protected under fair use, and that protection is responsible for the availability of a great deal of great content. Parody tends to be equal parts humor and commentary and enjoys a long history of important speech here in America.But parody doesn't have that protected status in intellectual property laws abroad. Taiwan, for instance, has a form of fair use protections, but those protections carve out no space for parody. This has resulted in local film studios going after one popular YouTuber in such a way as to include law enforcement raids of his offices and the threat of very real jail time.

Because we talk so much about fair use here, we often likewise find ourselves talking about parody. Parody is one of the forms of content protected under fair use, and that protection is responsible for the availability of a great deal of great content. Parody tends to be equal parts humor and commentary and enjoys a long history of important speech here in America.But parody doesn't have that protected status in intellectual property laws abroad. Taiwan, for instance, has a form of fair use protections, but those protections carve out no space for parody. This has resulted in local film studios going after one popular YouTuber in such a way as to include law enforcement raids of his offices and the threat of very real jail time.

Last June, you'll recall that the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's net neutrality rules, claiming the FCC was within its rights to reclassify ISPs as common carriers under Title II of the Communications Act. In fact, the FCC was driven toward that move by Verizon, which sued to overturn the agency's much weaker 2010 rules. Needless to say, ISPs were quick to try and appeal last June's court decision by requesting an en banc hearing before the whole court.This week the court refused the industry's request, meaning the existing 2015 rules crafted and passed under former FCC boss Tom Wheeler remain intact. Consumer groups and content and hardware trade groups like Incompas were quick to applaud the ruling as a victory for consumers and those wary of large ISP attempts to hamper streaming video competition:

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Real estate site Zillow is getting sued. Again. The company has already been sued for trade secret theft, copyright infringement, and settled multiple lawsuits related to harassment and other workplace violations. This time it's getting sued for handing out a "Zestimate" the plaintiff feels is too low.Barbara Andersen, an Illinois resident and real estate litigation attorney, is asking the court to force Zillow to take down its estimate of her home's value, which she believes is incorrect.

Lies and hyperbole are certainly no strangers to either side of the net neutrality debate, but as the FCC moves to kill net neutrality -- net neutrality opponents have taken things to an entirely new level. FCC boss Ajit Pai's speech last week unveiling the move was utterly packed with claims that had already been painstakingly debunked over the last decade (read: lies), from the absurd claim that gutting consumer protections would somehow help consumers in the Comcast era, to the similarly untrue claim that net neutrality killed broadband investment.Of course ISPs followed Pai's speech with a bunch of their own misleading statements. Most of them tried to claim that nothing is actually going on and even if it were -- consumers shouldn't worry because large duopolists can always be trusted to remain on their best behavior in light of no oversight. Comcast, for example, was quick to post a missive to its website trying to claim that net neutrality somehow gets better -- by killing net neutrality. Just look at the banner used by the ISP:Yes, consumers, prepare to "enjoy" the amazing benefits of gutting nearly all oversight of one of the least competitive, least-liked, and most anti-competitive companies in the history of American industry. You're welcome!But Verizon upped the ante and deserves some kind of award for publishing this abomination of a video to the internet:In it, a bespectacled faux-journalist named Jeremy asks Verizon General Counsel Craig Silliman about net neutrality. The "interview" is only under way for a few seconds before Silliman drops a major lie:

We've been talking about Australian politicians' odd obsession with passing ever more draconian data retention rules for years now. As you may recall, the politicians pushing for this appeared to have absolutely no clue what it actually entailed. Just a few months ago, we wrote about reports about how Australia's data retention laws had been abused to spy on journalists and their sources. While some parts of the law went into effect a year and a half ago, it appears some parts just went into effect a few weeks ago. These new rules require every ISP to retain metadata on all online communications for at least two years. And... it took just about two weeks before the Australian Federal Police (AFP) were forced to admit that it had used the info to spy on journalists (again). They insist this was a mistake, of course.

With all the attention ride-sharing has been getting lately, some might think Uber and Lyft were highly inventive apps. But according to at least one company, the apps are just highly infringing. Who's right? Probably neither.Hailo Technologies, LLC ("Hailo") has recently sued both Uber and Lyft, alleging they infringed Hailo's taxi dispatch patent, U.S. Patent No. 5,973,619 ("the '619 patent"). The patent claims a method for a "computer system" that: (1) displays a list of transportation options; (2) asks the customer for a number of passengers; (3) shows destinations graphically; (4) displays the approximate fare; (5) calls a selected taxi company up for a ride; and (6) gives an estimated arrival time. A few months ago, Hailo also sued a few other companies for infringing a different patent, U.S. Patent No. 6,756,913 ("the '913 patent"), which claims a method for keeping track of available taxis on the road. More specifically, it claims a method where a computer (1) determines if a taxi is free (i.e. currently has no rider); and if free (2) sends the current location of the taxi to the taxi dispatch server.Both of Hailo's patents date to the late 1990s. That is, the patents claim these inventions didn't exist (or weren't obvious) at that time. Except a brief Internet search shows that similar taxi dispatch technology not only existed, but was widely used. Two reports from the Department of Transportation from 1991 and 1992 describe the state of "computer dispatch" technology at that time, and show many of the claimed features of the '619 and '913 patents. Another report, from 1995, has even more detail about various taxi dispatch technologies. For example, on page 115 the report details a product called "MT GU," an automated call box that allows customers to order "one or several taxis," specify "the taxi desired" (including getting a larger van), and provides the waiting time. The MT GU system seems to describe many, if not all, of the features in the system claimed in the '619 patent, and predates it by several years.So there's good reason to think that the inventions claimed in the two patents were not actually novel or non-obvious when the patent applications were filed. But will any of that matter? Patents, once issued, are presumed valid. In order for a patent to be declared invalid in court, a challenger must show "clear and convincing evidence" of invalidity. When the argument for invalidity is based on prior art, this can be an expensive and time consuming process, often costing in the hundreds of thousands, if not millions, of dollars. Thus even if these patents are in fact invalid and never should have issued, due to the cost of litigation courts often never decide the issue.An alternative to court exists in the form of inter partes review at the Patent Office. This allows the Patent Office to take a second look at claims in a patent, and declare them unpatentable under a more lenient "preponderance of the evidence" standard. But this procedure, although cheaper than court, is still relatively expensive. One study estimated costs through appeal at $350,000.Given the costs of litigation in court or at the Patent Office, a patent owner can sue on a "presumed valid" patent and use the threat of fees and costs to get an undeserved settlement. When a company does nothing else (meaning, it doesn't have a real business other than litigation) we call those companies "patent trolls."Hailo strikes us as pretty trollish. As noted, the patents in questions seem weak at best, and Hailo doesn't seem to be seriously using the "inventions" in any event. In its complaint against Uber, Hailo states that it is an app maker. But its website, www.bring.bikes, was registered only 10 days before it sued Uber and Lyft. Confusingly enough, there is another company named "Hailo" that actually does make a taxi hailing app. Even more confusing: "Hailo" the patent owner says it does business under the name "Bring," but does not appear to be associated with another company called Bring that's actually involved in transportation.This "Hailo" by contrast, seems focused on litigation. A recently filed document attaches the agreement assigning the '913 patent from its original owner to Hailo. The contract is replete with references to patent enforcement and litigation. And in an earlier complaint, Hailo listed its business address as that of a law firm, and one of its members, 2S Ventures, has been associated with at least one entity that has filed over 20 lawsuits (login req.), a typical litigation pattern for a patent troll.Whether or not Hailo is a practicing company, these are weak patents that deserve serious challenge. Sadly, that's unlikely to happen – which is why stupid patents like these should never issue.Republished from EFF's Stupid Patents of the Month series.

It appears that Chris Dodd's reign atop the MPAA is coming to an end. As you may recall, he took the job in 2011 to become the head of the MPAA -- directly contrasting a statement he'd made just months earlier that he'd never become a lobbyist. Dodd's first move was to preside over the MPAA's first legislative Titanic. After years of easily passing every copyright law it wanted, Dodd helped turn a slam dunk, easy-to-pass SOPA/PIPA into a huge disaster that has consistently scared Congress away from making any substantial copyright law changes. And, yes, it was Dodd's failed leadership that was a big part of the problem.Other "highlights" from the Chris Dodd era include near complete silence after the Sony hack, a leaked plan on how the MPAA would help pay for lawyers to do the legwork for elected officials to attack Google, and even leading the movie studios to begin to question why they send many millions of dollars to the MPAA each year for very little return.With that as backdrop, it's been announced that Dodd is stepping down from the MPAA and will be replaced by Charles Rivkin, who has worked in both government and in the entertainment industry. Dodd's contract ran through 2018, and news reports say he'll "transition" out of his role between now and September of this year. Hopefully Rivkin will be more forward-looking, and will recognize that (1) the public and (2) the internet are not enemies of the movie industry. That would go a long way towards improving the MPAA's approach to things, but we'll see.

The impact the dropping of the "about" collection will have on the NSA's upstream harvesting will either be massive or minimal, depending on who you ask.The Privacy and Civil Liberties Oversight Board's report on the "about" collection noted a few things, one of them being the supposed impossibility of preventing inadvertent collection.

If defense lawyers did this, you can bet the local prosecutor's office would be there in an instant to file charges. But since it's a prosecutor's office doing it, local prosecutors see nothing wrong with lying to witnesses to obtain testimony. Charles Maldonado of The Lens looks into the unethical practices of the Orleans Parish District Attorney's Office.

It seems that this spring really is the time for obscure copyright disputes with odd connections to the US's weak-kneed compliance with the Berne Convention on copyright. We've already written a few times about the moral rights claim by the guy who created the giant "Wall St. Bull" statue, as well as a lawsuit against a Wall St. church for moving a 9/11 memorial -- both of which reference VARA, the Visual Artists Rights Act of 1990. VARA was passed as part of the US's slapdash attempt to pretend it complied with the Berne Convention, a document that was created in 1886, and which the US took over 100 years to even pretend to comply with. VARA wasn't the only such move in 1990. That very same year, Congress also passed the Architectural Works Copyright Protection Act of 1990, or AWCPA.Now, hold that thought as we get into the meat of what this story is about. It's a posting on Reddit's /r/legaladvice/ subreddit, which is kind of famous for absolutely awful questions and even worse answers -- so take it with a grain of salt. But the posting claims that it's from a homeowner, who had customized things done to a model home which then burned down. In trying to have the home rebuilt as it was before, the original developer refused to rebuild it, and also refused to hand over the blueprints. Instead, the homeowner more or less recreated the plans from memory (and photographs and a neighbor's house that was similar) and had another builder start to rebuild -- only to receive a cease & desist letter from the original builder, threatening a copyright claim:

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Did you hear the story this weekend about how Trump's Chief of Staff Reince Priebus went on TV and said that the administration is "looking at" changing libel laws or amending the 1st Amendment of the Constitution? You probably did. It's dumb and wrong and it makes no sense, but that doesn't mean that the President isn't already doing great harm to free speech. But first, let's cover Priebus's nonsensical comments. If you somehow missed it, here's what he said:

For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above the line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control.For example, for several years now, CenturyLink has been charging its broadband customers an "internet cost recovery fee," which the company's website insists "helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network" (that's what the full bill is supposed to be for). Comcast and other cable companies have similarly begun charging users a "broadcast TV fee," which simply takes a portion of the costs of programming, and hides it below the line. The names differ but the goal's the same: falsely advertise one rate, then charge consumers with a higher price.Comcast was sued for the practice last year. Amusingly, the company responded to the suit by trying to claim that covertly jacking up their advertised rate was just their way of being "transparent" (nothing quite says "transparency" like not knowing what your bill is going to be until after you've signed up for service). Despite this being false advertising, you'd be hard pressed to find any U.S. regulator, federal or state-level, that gives much of a damn. The sense one gets is that the government, slathered with campaign contributions, has been conditioned to see this kind of behavior as simply creative expression.In Oregon, regional TV regulators have bucked the apathetic trend and are urging Oregon's Department of Justice to begin investigating Comcast's (and other providers') abuse of this kind of pricing. In a letter to the Oregon Department of Justice (pdf), the smaller regulators for Multnomah and Washington counties point out that under current law they're forbidden from regulating cable prices. But, they note, they're being inundated with complaints from Comcast subscribers tired of having their rates covertly jacked up while under contract:

The surprising shutdown of the NSA's email harvesting program -- one that operated "upstream" and grabbed not just communications to and from surveillance targets, but also those "about" surveillance targets -- is good news. Considering the NSA had done nothing but abuse this specific privilege, the shutdown is a welcome surprise. But it's not great news, for a variety of reasons.First, the shutdown arrives on the heels of a yearlong denial of surveillance requests by the FISA court. This indicates the NSA was either still abusing its collection or the court no longer felt the program was constitutional, at least not the way the NSA was running it. The shutdown seems to reflect the NSA's inability or unwillingness to shift towards more targeted surveillance methods -- ones that won't sweep up lots of US persons' communications inadvertently.It also suggests the program -- at least the upstream part of it -- is no longer as useful as it used to be. The rise in default encryption by email providers may be preventing the NSA from gathering as much info as it used to, as Julian Sanchez explains at Just Security.

This week, we were all appalled by the astonishing move by the Oregon government to fine a man who criticized the traffic camera system for practicing engineering without a license. One anonymous commenter won most insightful comment of the week by pointing out what this teaches about similar notions:

Since I'm here at the Creative Commons 2017 Global Summit this weekend, I want to take a break from our usual Techdirt history posts and highlight the new State Of The Commons report that has been released. These annual reports are a key part of the CC community — here at Techdirt, most of our readers already understand the importance of the free culture licensing options that CC provides to creators, but it's important to step back and look at just how much content is being created and shared thanks to this system. It also provides some good insight into exactly how people are using CC licenses, through both data and (moreso than in previous years) close-up case studies. In the coming week we'll be taking a deeper dive into some of the specifics of the report and this year's summit, but for now I want to highlight a few key points — and encourage you to check out the full report for yourself.Public Domain Dedications Are Gaining SteamEven within the CC community itself, there is some debate as to the effectiveness and appropriateness of various licensing options like no-derivatives and non-commercial. Here at Techdirt we've always encouraged creators to strongly consider the CC0 option that puts their work fully into the public domain (or at least as fully as you can under a copyright system that provides no clear legal mechanism for doing so). In the past year, the use of CC0 has been growing, largely thanks to some specific projects like the the release of a large collection from the Metropolitan Museum of Art which I wrote about a couple months ago, and the public-domain-focused photography platform Unsplash. Hopefully the success and usefulness of these projects drives even more creators and platform operators to embrace CC0 (many content sharing platforms still don't even give uploaders the option, with CC-BY as the least restrictive license available).Non-Commercial Licenses Are The MinorityCasting the net a little wider than pure public domain dedications, there's an even bigger trend away from the more restrictive CC options. We've discussed many times in the past how "non-commercial" is an extremely problematic requirement in an era where the lines between commercial and non- are often extremely blurry. Similarly, "no derivatives" cuts of countless avenues of positive, productive use of content, and creates even more uncertainty around exactly what is allowed — and under a harsh copyright regime with hefty penalties for infringement, uncertainty is functionally pretty close to just being blocked altogether. So it's great to see that licenses which allow remixing and commercial use are continuing to increase as a proportion of all CC licenses, reaching 65% this year.The Commons Is HugeIn 2016, there were 1.2-billion works published with Creative Commons licenses. Though growth has slowed slightly since the count passed the one-billion mark last year, it shows no signs of stopping. Ten years ago, there were only 140-million such works.Many of the discussions at the summit are focused on how to push these trends forwards even further, both in specific areas of interest and in the commons as a whole. We'll have closer looks at some of these ideas soon, but for now check out the full report to learn more — and get ready for the Made With Creative Commons book (a collection of examples of CC work, plus insights from artists on how they have built sustainable open culture businesses, and advice on using CC with your own work) which will be available as a free ebook on May 5th.