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As was noted here earlier, the NSA surprised many people by shutting down its email collection. This collection was authorized by the FISA Amendments Act, which is due for renewal at the end of this year. Since the point the collection began, it was clear the NSA was also harvesting (inadvertently, it said) US persons' communications.Ron Wyden, along with a few other lawmakers, has been asking the NSA for years to turn over information on this program -- specifically, how many US persons had been swept up "incidentally" in the bulk collection. For years, the NSA has refused to do so, claiming it would be impossible to compile this information and, somewhat hilariously, claiming it would violate the privacy of those swept up in the collection to query the database for incidental collections.This decision to shut down the program may result in that answer never being given to Wyden. The ODNI (Office of the Director of National Intelligence) may decide the shutdown renders this particular query moot. It shouldn't. Now that the email program has been shut down EXPLICITLY because it sweeps up too many US persons' in the dragnet, the answer is more important than ever. And the ODNI has recently (and very belatedly) promised to deliver this number and should keep that promise even though the program has been shut down. Not only that, but this shutdown only affects the collection of email. It doesn't prevent the NSA from collecting other internet-based communications. With fewer people using email as their primary communication method, the NSA will still have plenty of communications to harvest.There's another good reason for turning over that number: the Section 702 collection has been plagued with problems pretty much since its inception. The FISA court determined in 2011 that the program -- as operated by the NSA -- was unconstitutional. Apparently some fixes were made as the program was allowed to continue. But as Marcy Wheeler pointed out a year ago, the program has never not been violating the Foreign Intelligence Surveillance Act.

We had just been talking about Ed Sheeran suggesting that piracy actually helped his career rather than hurt it, as well as his decision to go to bat against his label for a fan who covered one of his songs, but he's not the only one out there who doesn't see filesharing as the great music Satan the labels would have us believe. Artist Mac DeMarco announced on stage at Coachella that his latest album had leaked online. The instructions he then gave the concert-goers is not the norm amongst artists, to say the least.

Creative Commons launched its 2017 Global Summit today with a rather moving surprise: a seven-foot-tall 3D printed replica of the Tetrapylon from Palmyra, Syria. For those who don't know the tragic situation, Palmyra is one of the most historic cities in the world — but it is being steadily destroyed by ISIS, robbing the world of countless irreplaceable artifacts and murdering those who have tried to protect them (the folks at Extra History have a pair of good summary videos discussing the history and the current situation in the city).Among ISIS's human targets was Bassel Khartabil, who launched Syria's CC community several years ago and began a project to take 3D scans of the city, which CC has been gathering and releasing under a CC0 Public Domain license. He was captured and imprisoned, and for the past five years his whereabouts and status have been unknown. As the #FreeBassel campaign continues, Creative Commons is now working to bring his invaluable scans to life in the form of 3D-printed replicas, starting with today's unveiling of the Tetrapylon — which was destroyed in January along with part of a Roman theatre after ISIS captured the city for a second time.This isn't the only such project — the Institute of Digital Archaeology and UNESCO unveiled a replica of part of the Temple of Bel in London last year — and these combined efforts are a critical bulwark between ISIS and its goal of eliminating this part of our shared cultural history. You can read more about CC's project — including status updates on the other artifacts, monuments and architecture that they are reproducing — on the #newpalmyra website (at the time of writing it still lists the Tetrapylon as "coming soon", though that will likely change shortly).Much of this weekend's summit is likely to revolve around the ongoing tension between open culture and intellectual property regimes, but I can't think of a better way to kick things off than with something that even the staunchest copyright maximalist can surely agree with: that the treasures of this 2,000-year-old city belong to us all, their destruction is a travesty, and the ability to preserve them even in some small way is a triumph of technology and the cultural commons.

Look, we warned everyone about this. Right after Congress stupidly stripped privacy protections so that ISPs could more actively sell your data (and make it harder for you to realize it or do anything about it), there were a few crowdfunding campaigns that popped up on GoFundMe, claiming that they were raising money to then buy the web browsing data of Congress. We pointed out at the time that this was dumb and dangerous because you can't just go buy someone's web surfing data. That's not how any of this works. But, you know, it was one of those stories that people just really, really wanted to believe, so apparently unaware of it being flat out impossible (more people should read Techdirt...), tons and tons of people donated tons and tons of money, without realizing there was absolutely no way these campaigns could do what they they claimed. The more well-known campaign, by a self-declared "privacy activist" named Adam McElhaney, ended up raising over $200k (despite others claiming that it looked like a pure scam). The slightly lesser well-known one, by actor Misha Collins, took in just under $90k. Between them, they raised about $300k... with promises of obtaining data that anyone with any knowledge of the situation would know they couldn't obtain.So, uh, take a wild guess what has happened? If you guess they didn't get any data with that money, well give yourself a prize, because that's exactly 100% what happened.And... some of the folks snookered into handing over the cash for something that was pretty clearly bogus are... not happy. Many have been requesting refunds. McElhaney is now claiming that he was never planning to buy the data from ISPs, but rather get it by FOIA, though he's now admitting in a GoFundMe update that it's not working either:

There aren't many details yet, but Charlie Savage at the NY Times has a major scoop: apparently, the NSA has halted "about" email collections. This is important. As we've discussed in the past, under Section 702 of the FISA Amendments Act, the NSA can collect info on approved "foreign targets." But here's where it got sketchy: they could collect the communications "to" them or "from" them -- which most people would expect -- but also they could collect any communications "about" them. In other words, did you joke about Osama bin Laden in an email? It's possible that under Section 702, the NSA could collect that email without a warrant. That was massively concerning because the "about" emails from Americans could contain lots of other info, and once sucked up into the NSA's system and made available to the FBI for "backdoor" incidental collection searches, could expose people to lots and lots of trouble. There have been pushes over the past few years to limit the collection to no longer include "about" communications, but those had been (as far as we knew!) unsuccessful.And, for an unclear reason, the NSA has stopped doing that. Trevor Timm speculates that perhaps the FISA court ruled that collection illegal, which is possible (also we just noted that there were no new 702 approvals by the FISA Court last year), so perhaps the FISC is finally taking its job a bit more seriously. We've also pointed out that there have been legal fights over the fact that the DOJ lied to the Supreme Court about the nature of these "about" collections, which may have created more pressure to stop them from happening.I'm sure that we'll find out more about what happened in the near future, but this will certainly play a large role in the upcoming debate about renewing Section 702.

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As most people know, babies who are breastfed from birth enjoy a wide range of benefits. Here's what the United Nations Children's Fund (Unicef), a global organization with nearly $5 billion of funding, has to say on the topic of breastfeeding:

For years ESPN has been the perfect personification of the cable and broadcast industry's almost-comic denial regarding cord cutting and market evolution. Long propped up by a system that forces consumers to buy massive bundles of largely-unwatched channels, ESPN has struggled with the rise of streaming alternatives and sleeker, "skinny" channel bundles. The sports network, which has lost 10 million viewers in just the last few years, has been trying to argue that these losses (which caused Disney stock to lose $22 billion in value in just two days at one point) are simply part of some kind of overblown, mass hallucination.Surveys have shown that 56% of consumers would drop ESPN in a heartbeat if it meant a reduction in the $8 per subscriber the channel is believed to cost. But last year, ESPN exec John Skipper suggested that these departing customers weren't worth keeping anyway:

The weird, sickening persecution of Barrett Brown continues. Whether or not you like the guy (and every time we post about him, we hear from people who provide reasons why they dislike him), the way he's been treated by our justice system is despicable. If you don't recall, Brown is an award winning journalist, who certainly went deep with Anonymous and other online groups. Eventually that resulted in him being arrested and harassed by prosecutors for sharing a link. When the infamous Stratfor hacks were released, he shared a link to the files to get people to sift through them. Because some of the files included swiped credit card numbers, he was charged with "trafficking" in stolen credit cards. Oddly, right before trial -- realizing how insane it was to charge him over this -- the feds dropped the charges around linking, but pushed forward on other charges because he hid a laptop in a cabinet and (stupidly...) got angry at the FBI when they came to investigate. The odd part is that following a plea deal, the judge sentenced him to an astounding 63 months in jail -- and cited the sharing of the link (again, those charges were dropped, but it sometimes appeared the judge didn't realize that) to explain why.But the odder part throughout all of this was just how vindictive and petty everyone in the system were towards Brown -- and specifically towards his interactions with the press. The feds sought to stop the media from reporting on Brown's case and got a judge to block Brown or his lawyers from talking to the media. And once he was in prison, the feds cut off his email.All this weird petty shit, just to stop him from talking to the media.Late last year, he was released from prison (earlier than expected) and has been complying with all the terms of his release... except, apparently, officials disagreed with that... because he was conducting interview with the media, according to D Magazine, where Brown has been working since his release. The Intercept, which employed Brown as a columnist while he was in prison, has more details, claiming that his check-in officer suddenly claimed that he needed permission before he could conduct media interviews -- something he had not been told at all.

We've seen random attempts by governments to block access to social media sites or even the internet as a whole, but the Indian state of Kashmir has ordered 22 social networks to be blocked for at least a month. Journalist Nazir Masoodi, who is in Kashmir, tweeted out screen shots of the government order, noting "This could be my last tweet."

As we noted yesterday, FCC Chair Ajit Pai has officially kicked off his plan to kill net neutrality -- and unfortunately did so by spouting debunked myths and fantasies about how much damage net neutrality was causing for investment. As we pointed out that, that's complete hogwash. If you actually looked at what telcos and ISPs were spending it showed no impact from the open internet rules. And, really, why should it have changed investment plans? As we've noted, the rules had basically no impact on ISPs unless those ISPs were looking to screw over consumers. And if it harmed those ISPs' investment plans, that doesn't seem like a very big loss. Otherwise, the open internet rules just provided clear "rules of the road" for ISPs to treat internet data fairly and to not screw over end users.Either way, that's not the only "investment" that Pai should be looking at. Because one of the other key aspects of having an open internet is the massive amount of investment that has resulted for companies that operate on the internet. Pai seems (bizarrely) exclusively focused on investment in the infrastructure (which, again, has not dropped despite his claims) and totally ignores all the investment layers above (which also helps funds the infrastructure). So, just as Pai is (wrongly) whining that net neutrality harmed investment, over 800 startups, from all 50 states, sent him a letter urging him not to get rid of the open internet rules (and, yes, we were among those who signed onto the letter).This is important. Pai is making all sorts of misleading to nonsensical claims about the impact on the economy of the net neutrality rules, but in doing so he's trying to ignore all of the business that's created because the internet is kept open and free and the giant incumbent access providers are unable to favor their own services or throttle and stifle innovative upstarts. Pai talks a good game about how he wants the "democratization of entrepreneurship" thanks to a fast internet. That's great. But if he kills off net neutrality we lose that. We get a system where each startup has to go begging and pleading to each access provider for a deal they probably can't get or couldn't afford even if they were able to. We've seen that world. It's the world that existed on mobile phones in the early 2000s when the providers got to control (i.e., charge ridiculous sums for) who had access to their customers. That was not a good world to live in and it vastly limited the economic opportunities of the mobile world. It was only when smartphones broke away from the carriers' control that things changed.We shouldn't move back towards that kind of world, yet that appears to be the clear end result of the plans that Pai is pushing. This is a mistake and over 800 startups are letting him know that. Pai may think he can ignore them all, but he should note that each of those companies has a lot of users, and it's not difficult to ask them to speak up too. Pai is playing with fire if he thinks that the public won't speak out about his attempts to kill off net neutrality and to harm the most innovative companies out there, in favor for the slow, lumbering duopolists who control the pipes.

It doesn't take many stories of people suffering due to unaffordable medicine to make you question the state of pharmaceutical patents, but the arguments in their defense are loud and frequent. Most are variations on the same theme: without the promise of a monopoly, important drugs would never be researched and developed. But does this argument truly hold up? It's come up as a tangent in previous episodes of the podcast, but this week we're dedicating a full episode to questioning the popular defenses of pharma patents and looking for a better way forward.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.

Anyone familiar with internet culture will be familiar with Godwin's law. It goes roughly something like this: the longer a discussion goes on on the internet, the higher the probability that a comparison to Hitler or the Nazis will be made. This axiom enjoys lofty status on the internet -- so often have we seen its claim played out in threads and discussions.Godwin's Law is, of course, not a real law. But there may soon be a real Godwin's Law on the books, stemming from the murder of Robert Godwin Sr. and the subsequent video upload to Facebook of the murder.

Section 702 -- the statute that allows the NSA to collect internet communications and data in bulk -- is up for renewal at the end of this year. The NSA, thanks to Ed Snowden, faced more of an uphill battle than usual when renewing Section 215 (bulk metadata collections). For the first time in its existence, the NSA ended up with a compromise (the USA Freedom Act), rather than a straight renewal.The Intelligence Community appears to be trying to get out ahead of straight renewal opponents. The Office of the Director of National Intelligence has released a Section 702 Q&A at millennial watering hole Tumblr. By returning its own soft serve questions with canned talking points, the ODNI is hoping to show just how lawful its upstream collection is.It also hopes to obscure something that's been around since the 2008 FISA Amendments Act: backdoor searches. Other government agencies have had the ability to peruse the NSA's collections, which were ostensibly gathered solely for national security use. The FBI is the most frequent backdoor searcher, seeing as it has rebranded as a counterterrorism unit over the past several years, which has allowed it to expand its surveillance capabilities and increase exploitation of the NSA's data stores.The ODNI's Q&A document sort of admits this, but tries to downplay the implications of allowing a domestic law enforcement agency free access to national security-focused surveillance intake.

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Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

To be clear: fifth generation (5G) wireless should be really impressive when it actually arrives, providing significantly faster mobile broadband speeds at lower latencies. The catch: the 5G standard hasn't even been created yet, and any real deployment of the ultra-fast technology isn't expected to even seriously begin until 2020. That hasn't stopped wireless carrier and hardware vendor marketing departments, which have been hyping the technology as the second coming for several years now. Sure, these salesmen don't know what 5G really even is yet, but they're pretty sure it's going to fix everything.As these carriers rush to begin tests on the hardware and software advancements that may someday make up the 5G standard, the real yeoman's work is now being done in marketing. All of the big carriers are tripping over themselves, trying desperately to convince the public that they're going to be the first to offer the amazing new benefits 5G can provide. Verizon has traditionally been at the forefront of this hype, telling anyone who'll listen it hopes to offer gigabit speeds over wireless sometime this year (to a limited number of trial participants).Not to be outdone, AT&T has upped the ante this week with a proclamation that the company is first to market with "5G Evolution." What is 5G evolution? It's a largely meaningless marketing term concocted by AT&T to describe 4x4 MIMO (multiple input, multiple output) antennas and 256 QAM technologies that can be used to make existing LTE networks faster. It really has nothing whatsoever to do with "5G," but you wouldn't know that from reading AT&T's marketing missives this week:

It seems like common sense. The person legally responsible for defamatory statements is the person making the defamatory statements. But since pursuing that person often seems too difficult, legislators, courts, and disingenuous plaintiffs have engaged in mental/litigious gymnastics in hopes of finding third parties responsible for the statements of others.We've seen a long list of lawsuits filed against service providers in response to defamatory content hosted on their platforms. We've seen courts -- mostly outside of the US -- convert third-party platforms into "publishers" for the sake of delisting/content removal court orders. We've seen numerous attempts to avoid Section 230 defenses by recrafting defamation lawsuits as trademark infringement litigation.We've even seen some bad lawmaking, attempting to strip away protections for service providers to make it easier to hold them responsible for the actions of others.The European Court of Human Rights is in the middle of another attempt to hold third parties responsible for the allegedly-defamatory statements of others.

This isn't a huge surprise, but unfortunately, today -- after a mostly ridiculous "debate" on the House floor full of claptrap and bullshit about how important copyright is to "protecting jobs" (despite this bill having nothing to do with any of that) -- the House voted 378 to 48 to approve a bill that makes the head of the Copyright Office, the Copyright Register, a Presidential appointment rather than an appointment by the Library of Congress, as it's been throughout the entire history of the Copyright Office. As we pointed out just yesterday, Congress appears to be rushing this through for no clear reason. It held no hearings on the issue (other than the fact that the current Librarian of Congress, Carla Hayden, was getting ready to appoint her own Copyright Register).Again, every reason given by supporters of this bill doesn't hold up to any scrutiny. They claimed, falsely, that copyright creates 5 million jobs (one Rep -- Tony Cardenas -- even claimed that the Copyright Register "oversees" those jobs). But this is not true. They claimed that the Copyright Office needs to be modernized -- which is true. But Carla Hayden has already commenced a massive modernization project, which this bill will stop dead in its tracks. They claimed that this would provide "greater oversight" over how the Copyright Office is run, but that's not even remotely true. The bill actually takes away the oversight from the Librarian of Congress... and gives it to no one other than the President, who isn't likely to be paying much attention to what's happening at the Copyright Office.This bill serves no purpose other than to take power away from the Librarian of Congress and give it to powerful lobbyists who will have a major say in who runs the Copyright Office. The bill will now move to the Senate where it is also likely to get an easy approval, and no doubt the President will sign the bill (which gives him more power, even if he's shown little sign of actually appointing people to the nearly 500 open positions which this will add to). It's a bad bill, and it's a gift to Hollywood, even as it will harm the actual content creators who will have to wait even longer for the office to actually be modernized.

As we mentioned recently, today is "World Intellectual Property Day," an event put together by the World Intellectual Property Organization (WIPO) to promote ever greater protectionism and mercantilism in favor of copyright holders and patent holders, while ignoring any impact on the public of those things. It's a fairly disgusting distortion of the claimed intent of intellectual property, which is often promoted for the claimed benefits it brings to the public, but extreme supporters, such as WIPO, are never willing to actually weigh out the pros and cons of copyrights and patents, and how over-protection and over-enforcement can cause serious problems for the public, innovators and creators.I wasn't sure if I was going to write anything specifically about World IP Day, but Brandon Butler, the Director of Information Policy at the UVA Library put up an excellent suggestion on Twitter, that we should use "World IP Day" to re-read what Lord Thomas Macauley said in the UK Parliament back in 1841 when they were discussing copyright term expansion. We've pointed to it and quoted from it at length many times over the years, but even now, 176 years later, it still remains one of the best statements on how over-monopolizing ideas creates real harms. It's a part of the lesson that supporters of copyright and patents either ignore or wish to hide. So we will post it here in its entirety (after all, it's in the public domain):

FCC boss Ajit Pai has made no secret of his disdain for net neutrality. Or, for that matter, his general disregard for the consumer-protection authority granted the agency he's supposed to be in charge of. Pai had already stated that his "solution" -- to his perceived injustice that is net neutrality -- is to replace the government's existing, hard net neutrality rules with "voluntary commitments" by the likes of AT&T, Comcast and Verizon. From there, he hopes to leave any remaining regulatory enforcement to the under-funded and over-extended FTC (we've explained why this is a notably bad idea here).Pai clarified his plans a little during a speech today in Washington, DC at an event hosted by FreedomWorks (which, not coincidentally, takes funding from the giant ISPs Pai is clearly eager to help). According to Pai, the FCC will issue a Notice of Proposed Rule Making tomorrow to begin the process of rolling back Title II and killing net neutrality. The FCC will then vote on the proposal on May 18, according to the agency head. That means there will be a full public comment period (that's where you come in) ahead of a broader vote to kill the rules later this year.Pai's full speech (pdf) was packed with conflations, half-truths, and statements that have been repeatedly, painstakingly debunked over the course of the last decade. Among them being the ongoing claim that net neutrality rules weren't necessary -- because incumbent ISPs had done nothing wrong:

Being transparent about what private consumer data is being collected and sold appears to be a hard lesson for hardware vendors to learn. Earlier this month, Bose was hit with a new lawsuit (pdf) accusing it of collecting and selling personal subscriber usage data of the company's $350 QC 35 noise-canceling headphones. More specifically, the lawsuit claims that the Bose Connect smartphone companion app is collecting user preferences when it comes to "music, radio broadcast, Podcast, and lecture choices" -- and then monetizing that data without making it clear to the end user:

Update: Adobe has clarified that this was not a National Security Letter (NSL), but rather a search warrant along with a "Delayed Notice Order" (DNO) that had no expiration. The principles are the same, but the vehicle was different. We have updated the article below and apologize for the error.Another government request for info with a never-ending gag order is on its way to being published. There's no way of telling when it will arrive, but it will be sooner than the government's clear preference: never.Adobe is the unlikely recipient of a search warrant and accompanying gag order. The decision in a recently unsealed case says indefinite gag orders aren't Constitutional, which is good news for the recipients of the thousands of NSLs the FBI issues every year.

Another National Security Letter is on its way to being published. There's no way of telling when it will arrive, but it will be sooner than the government's clear preference: never.Adobe is the unlikely recipient of the NSL and accompanying gag order. The decision in a recently unsealed case says indefinite gag orders aren't Constitutional, which is good news for the recipients of the thousands of NSLs the FBI issues every year.

Government entities tend to dislike people who criticize red light cameras. There's little evidence supporting the theory they make driving safer, but there's plenty of data out there showing just how profitable they can be, especially with a little fine tuning.When someone takes it upon themselves to dig into traffic cameras, they make few friends at city hall. Oregon resident Mats Jarlstrom's interest in red light cameras was piqued like so many others: by receiving a ticket. Unlike some others, Jarlstrom has a background in electronic engineering and the inherent inquisitiveness to follow through on a thorough examination of yellow light timing. He did some math and came to the conclusion the timing was off.

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It's difficult for me to read Jonathan Taplin's cri de coeur about Google and other technology companies that have come to dominate the top tier of successful American corporations without wincing in sympathy on his behalf.But the pain I feel is not grounded in Taplin's certainty that something amoral, libertarian and unregulated is undermining democracy. Instead, it's in Taplin's profound misunderstanding of both the innovations and social changes that have made these companies not merely successful but also—for most Americans—vastly useful in enabling people to stay connected, express themselves and find the goods and services (and, even more importantly, communities) they need."It is impossible to deny that Facebook, Google and Amazon have stymied innovation on a broad scale," Taplin argues in his screed. He wants Google to divest itself of DoubleClick, in theory because the search engine would be much better if it were unable to generate profits from digitized ad services. He wants Facebook to unload WhatsApp, because the world was much better when connected citizens in the developing world had to pay 10 cents for each SMS message they sent. None of this really amounts to reform and, of course, such "reforms" wouldn't touch companies like Apple or Microsoft in the least.What Taplin really wants isn't to reform but to reframe. He wants us to understand current tech-company leaders as evil, or at least amoral and out of control. Toward this end, he begins his new book (a much more extended version of his Times screed) by ominously quoting Facebook's Mark Zuckerberg: "Move fast and break things. Unless you are breaking stuff, you aren't moving fast enough."Despite his misreading of the underlying technologies shaping today's digital world, Taplin—founding director and now director emeritus of the University of Southern California's Annenberg Innovation Lab—is no dummy. He knows that if he asks ordinary internet users whether they hate or love Google or Amazon or Facebook (or whether they'll willingly part with their new iPhones) he's not going to get a lot of buy-in. Even under a hypothetical President Bernie Sanders, regulating Google as a monopoly wouldn't be a meat-and-potatoes issue.Instead, Taplin creates a counter-narrative in which American technology successes (with the notable exception of Microsoft) represent the kind of rapacious octopus-like capitalism so often caricatured by cartoonists like Thomas Nast. Google and Facebook may not hurt me in particular, but the theory he offers is that they somehow hurt America in the abstract. Taplin essentially reframes American tech success as a retelling of the oil, railroad, banking and telegraph robber-baron trusts of the 19th and early 20th centuries.But the very tech companies whose success Taplin is absolutely certain is anti-democratic were built on infrastructure and resources that, under federal law and regulation, have been highly regulated throughout his (and my) lifetime. We may disagree about what the regulations should be, but there's little disagreement that there's already a regulatory framework. The regulation of monopoly infrastructures—telephone and telegraph networks, in particular—were what made it possible to refrain from regulating what you said or did on those networks. Regulation at the "wire" level of the infrastructure—and at various technical levels above that—created the space for today's innovative services that provide near-instantaneous access to, potentially, all the information in the world and all the people with whom you would want to stay in touch.Search engines and other digital tools are, of course, highly disruptive to industries whose traditional model involved having school-age kids hawking ink and wood pulp on street corners. Like Taplin, I still believe newspaper journalism is essential to democracy. Indeed, I read Taplin's op-ed early Sunday morning because I subscribe to the digital edition of The New York Times. We must continue to explore new ways to make this necessary journalism not merely survive, but thrive.But it also bears mentioning that Taplin doesn't mention Craig Newmark or Craigslist in his screed against Google, even though, if you were to buy into the fundamentals of Taplin's argument, Craigslist clearly did more to erode daily newspapers' advertising revenue than Google has ever done. And, yet, at the same time, it's worth noting here that Newmark—like most of the other successful tech moguls Taplin lumps together into a sort of secret-handshake techno-libertarian fraternity—actually gives money to Poynter, ProPublica and other enterprises that actively respond to the very real problem of very fake news.A little research into the history of scientific discovery puts even the scary Zuckerberg quote about "breaking stuff" in a different light. The philosopher Karl Popper opens his essential book Conjectures and Refutations with two quotations: "Experience is the name every one gives to their mistakes," from Oscar Wilde and "Our whole problem is to make the mistakes as fast as possible," from the physicist John Archibald Wheeler.That sentiment—to be adventurous, to risk things, to learn quickly from making mistakes quickly—is, I believe, exactly what Zuckerberg was getting at. It also extends to making mistakes in our search for a new business model for journalism. But this shouldn't include Jonathan Taplin's great big mistake of looking into the digital future and seeing only places we've been before.Mike Godwin (@sfmnemonic) is a Senior Fellow at R Street Institute. Godwin was named as a Freedom Forum Fellow at the Freedom Forum Media Studies Center in 1997 and may have once said something about Nazis online for which he will always be remembered.

For years the traditional cable and broadcast industry has gone to great lengths to deny that cord cutting (getting rid of traditional cable TV) is real. First, we were told repeatedly that the phenomenon wasn't happening at all. Next, the industry acknowledged that sure -- a handful of people were ditching cable, but it didn't matter because the people doing so were losers living in their mom's basement. Then, we were told that cord cutting was real, but was only a minor phenomenon that would go away once Millennials started procreating.Of course none of these talking points were true, but they helped cement a common belief among older cable and broadcast executives that the transformative shift to streaming video could be easily solved by doubling down on bad ideas. More price increases, more advertisements stuffed into each minute, more hubris, and more denial. Blindness to justify the milking of a dying cash cow instead of adapting.But given the numbers we've seen over the last year or two, even the cable and broadcast industry has had to scale back its "head firmly in the sand" approach to market evolution. Last month MoffettNathanson analyst Craig Moffett, the telecom industry's top media quote machine, pointed out that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. Kagan agreed, a recent report indicating that Pay TV providers lost around 1.9 million subscribers last year, the firm predicting a notable spike in the number of broadband-only homes:

Back in 2012, it was discovered that a Massachusetts state drug lab technician had falsified thousands of tests submitted as evidence in criminal cases. Technician Annie Dookhan was able to "produce" three times as many test results as her coworkers, mostly by never actually testing the submitted substance -- something that went unquestioned for far too long. Dookhan went to jail for three years, but many of those convicted on faulty evidence spent far more time locked up.Dookhan's prolific fakery resulted in a list of 40,000 cases possibly tainted by her work. This list was turned over to prosecutors, who managed over the next few years to trim it down to 23,000 possibly-tainted convictions. Faced with the daunting task of sorting this all out and notifying former defendants, the district attorney's office decided the best approach was to do as little as possible.First, with an unbelievable amount of hubris, it argued that those who had already served time for bogus convictions likely didn't care whether or not they'd been exonerated post facto. It can't be that the prosecutor's office doesn't know drug convictions keep people unemployed/underemployed and/or car-less/homeless. It appears the office simply has no empathy for those it's helped convict.Then it did as little as it could to inform those who had been possibly wrongfully convicted. It sent out poorly-targeted mass mailings that looked like government junk mail, rather than the life-changing exonerations they possibly were. No research was performed to ensure current addresses were used and the letter itself didn't inform recipients of their legal rights and remedies.A court finally stepped in and ordered the DA's office to come up with a plan of adequately addressing this backlog of 21,000 possibly-wrongful convictions. These plans would have to be approved by the court, which obviously felt the DA's office would mount another half-hearted effort without direct supervision.Faced with having to lift a few fingers to locate and inform citizens of their rights, remedies, and their chance to un-fuck their lives, the DA's office has opted again to do as little as possible. However, in this case, the minimum of effort is probably the course of action it should have taken in the first place.

If you want to take the temperature on where the craft beer brewing industry is on the convergence of an exploding industry and the greater use of trademark law, you need only look at what intellectual property lawyers are saying. We had just discussed a Q&A with several IP attorneys in wine country lamenting on how trademark law is throwing up roadblocks to a likewise expanding wine industry and the need for a more nuanced interpretation of marketplaces within the alcohol industries. Even within the craft beer industry itself, IP attorneys are starting to recognize that the industry has a problem.The Indiana Lawyer has a post about craft beer trademark issues that's fascinating for several reasons, but we'll start with some short and sweet numbers that will give you an idea of what's going on.

For some reason, there has been a sub-war raging for more than a decade between anti-piracy groups and fans who create free subtitles for content so other regions can enjoy that same content. While much of this war has been fought for years on the anime front of all places, the conflict has spread to mainstream movies and television as well. And it is a painfully dumb war to fight at all for the content creators, whose publishers have failed to provide the subtitle translations that are obviously in demand, and which would open up new markets at no cost for them. Instead, they typically choose to scream "Copyright infringement!" at these fans instead.In the Netherlands, one group of fans that creates free subtitles in this way took BREIN to court to have its work declared kosher. Unfortunately, the Dutch court appears to have drunk the BREIN kool-aid on how fan subtitles are the bane of the entertainment industry and used only by pirate-y pirate types.

In the past few weeks, we've written a few times about this weird urgency among some in Congress to rush through a pretty major change to Copyright Office oversight. I wrote a deep dive piece over at The Verge discussing the issues at play, but Congress is pushing a bill to stop the new Librarian of Congress, Carla Hayden, from appointing a new head of the Copyright Office. Instead, the Congressional plan is to make the position a political appointee, nominated by the President, and approved by Congress. In that Verge piece, we explained why it was a major change, and scratched our heads at the fact that there appears to be no reason for pushing for this change other than (1) the legacy copyright industries know that their lobbying power will mean that the appointment will be to their liking and (2) they fear who Hayden might appoint. But, what's really odd is how quickly Congress is trying to push this through. As if the matter is incredibly urgent. There have been no hearings on the matter. There's been no public discussion on the pros and cons of such a move. Just a mad dash by a bunch of people in Congress to make this change official before Hayden can appoint someone.Rep. Zoe Lofgren -- who appears to be one of the few people in Congress questioning why this is happening -- has put out a statement highlighting why this move is so problematic. A key point: if there is such a rush to make the change, how does it make sense to put this appointment power in the hands of a President who has left hundreds of federal jobs completely empty without any nominations at all?

It looks like Prenda's Paul Hansmeier isn't nearly as interested John Steele in striking a deal with the feds. Of course, Steele folded immediately, offering up Hansmeier as bus undercoating, which likely means Hansmeier isn't being feted by feds with plea deals.The 17-count indictment relayed a story familiar to Techdirt readers, since we have covered nearly every part of the scam: a get-rich-quick scheme that paid off at first for Prenda, but quickly unraveled as courts (and many copyright troll fighters) uncovered fake defendants, shell companies, forged documents, and honeypot-as-business-model tactics.Faced with numerous charges and seemingly no option to shift the culpability back to Steele, Hansmeier is arguing the entire justice system will collapse if he's convicted. I wish I could tell you I'm exaggerating the dismissal request's prose for the sake of levity, but I'm afraid that's exactly what the dense's 64-page filing [PDF] says (h/t Sophisticated Jane Doe):

Have you heard the story about how Uber was tracking ex-users even after they had deleted the app from their phone? You'd have to be living under a rock to have missed it. It came from a fascinating NY Times profile of Uber's CEO/founder Travis Kalanick and is the opening anecdote, and then it started spreading like wildfire across social media.

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Our government isn't exactly known for its security chops, but in a letter sent recently from Senator Ron Wyden to two of his colleagues who head the Committee on Rules & Administration, it's noted that (incredibly), the ID cards used by Senate Staffers only appear to have a smart chip in them. Instead of the real thing, some genius just decided to put a photo of a smart chip on each card, rather than an actual smart chip. This isn't security by obscurity, it's... bad security through cheap Photoshopping. From our Senate.

Here in the States, regulators and Congress are preparing to gut our existing net neutrality rules -- replacing them with the policy equivalent of wet tissue paper. In Canada, regulators are taking the complete opposite tack, last week cementing the country's net neutrality rules as some of the most comprehensive in the world.After years of some obnoxious behavior by Canadian ISPs like Rogers, Canadian regulators adopted guidelines back in 2009 that prevent ISPs from blocking websites, while requiring that they're transparent about network management. In 2013, those guidelines were expanded to cover zero rating after Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over zero rating. Specifically, Klass and his co-filers noted that Bell had begun exempting its own streaming video service from the company's usage caps, thereby putting smaller streaming competitors at a notable disadvantage.While many people (especially here in the states) continue to labor under the misconception that zero rating gives them something for free, Klass rather concisely broke down why this was a problem in a blog post at the time:

The Shadow Brokers' attempted firesale of NSA exploits didn't go well. After early leaks failed to pique buyers' interest, SB decided to start handing over the agency's hacking tools to the general public.The most recent dump was the most interesting. It contained a variety of remote access exploits -- several of them zero days -- that gave NSA operatives "God mode" control over compromised computers with fairly-recent versions of the Windows operating system.But they were of limited use. The most recent exploitable version was Windows 8, and every version still supported by Microsoft was patched before the SB dump, most likely as the result of a belated tip from the NSA. However, older operating systems without Microsoft support are still exploitable, and will remain exploitable until those systems are updated.Now that most of the stash is out in the open, the Intelligence Community is able to do two things:

As further evidence of how things are changing in China when it comes to attitudes to piracy, here's a news item from Caixin about the leak of the hottest TV series there at the moment:

Legislators working with the Association of California School Administrators are backing away slowly from a bill aiming to separate schoolchildren from their phones and their privacy. The bill would have created an exception in California's privacy law, allowing teachers and school administrators to search the contents of students' phones. Courthouse News' Nick Cahill has more details:

For any of the entrenched entertainment players seated comfortably in their lofty offices, quite used to counting stacks of money and calling it a profession, they likely already know this fearful mantra: the millennials are coming. Millennials, and even more so the generations younger than them, are driving changes in the entertainment industry. These younger consumers are largely responsible for the cord-cutting trend winding its way through the cable industry, not to mention being the force behind ever-expanding streaming options for everything from movies to television shows and live sports. These are the customers of the future. Customers that will outlive a public that became used to having bloated cable television packages filled with channels and content fit to be ignored.And those customers are both great customers for streaming services and they are customers perfectly happy to get the streaming they want if legitimate methods for it aren't available. A recent survey conducted specifically with millennials finds that more than half of them regularly use pirate streaming sites to watch movies or shows, but would prefer to use legitimate streaming sites had they been available.

Researchers say they've discovered a new wave of malware with one purpose: to disable poorly secured routers and internet of things devices before they can be compromised and integrated into botnets. We've often noted how internet-of-broken-things devices ("smart" doorbells, fridges, video cameras, etc.) have such flimsy security that they're often hacked and integrated into botnets in just a matter of seconds after being connected to the internet. These devices are then quickly integrated into botnets that have been responsible for some of the worst DDoS attacks we've ever seen (including last October's attack on DYN).And most security researchers firmly believe we haven't seen anything yet.Enter PDoS (permanent denial of service) attack bots, which scan the internet for routers with default, unchanged passwords, or "smart" doorbells, dolls or other devices with paper-mache grade security. From there, PDoS attack bots issue a series of commands that wipe device media, corrupt all storage, and disconnect the device from the internet. Last month, researchers from security firm Radware set up an intentionally poorly-secured honeypot that they say saw roughly 2,250 PDoS attempts during just a four-day span.The lion's share of these attacks came from two botnets dubbed BrickerBot.1 and BrickerBot.2 -- with nodes busily bricking poorly-secured devices around the world. Initially researchers say they thought that somebody crafted malware specifically to tackle the IOT threat. But given the broad targeting of the botnets (including server-attached storage devices), they also think it's possible that the goal may just be good, old, vanilla mayhem:

Because a buddy of his lost a defamation lawsuit, a Texas legislator has introduced a pair of bills targeting protected speech. Kelsey Jukam of Courthouse News has more details:

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If you're wondering why people who support Donald Trump can repeatedly claim that various mainstream publications traffic in "fake news," look no further than the ongoing news coverage of a lawsuit that was filed against his campaign by three protestors. Yes, we know that reporting on legal issues by mainstream publications is bad, but the reporting on this particular case is so bad that over and over and over again it directly states, or at least implies, things that are simply not true. Over and over and over again, the press has taken fairly mundane and expected aspects of this lawsuit and taken them out of context, misreported them and generally suggested they meant things they absolutely did not. And, of course, every time, the reporting has made the President look bad. It should be quite clear by now that I'm not a fan of the President, who I think may be the least qualified person in office ever, but this particular case is a perfect case study in the kind of biased bad reporting, which will cling to anything to attack the President.So if you've heard reporting recently about how a Trump supporter was suing the President for inspiring him to violence against a protestor, or how a judge said Trump incited violence at a rally, or how Trump's lawyers claimed there's no right to protest the President at rallies or that the President is claiming that protestors violated his First Amendment rights, then you've been had. None of those are accurate depictions of what's happening. And, amazingly, these all refer to the same exact case. A case where the press can't help themselves but to report everything in misleading ways.Let's take a step back and explain the details. It's actually an ongoing and fairly interesting lawsuit against President Trump, which we haven't yet covered. Last year, three people who had attended a Trump rally with the intent of protesting sued Trump and his campaign, saying that the then-candidate for President had incited violence against them by telling the crowd to "get 'em out of here" when protestors interrupted his speech (and also saying "in the old days, which isn't so long ago, when we were less politically correct, that kinda stuff wouldn't have happened. Today we have to be so nice, so nice. We always have to be so nice"). Notably, he also said, "Don't hurt 'em. If I say 'go get em,' I get in trouble with the press, the most dishonest human beings in the world."Now this has some potentially interesting First Amendment issues buried in the case. And it would be nice if someone were actually reporting on those. The complaint itself accuses Trump and his campaign of assault and battery, and tries to get around the clear First Amendment issue (all Trump did was speak) by arguing incitement. As you hopefully know by now there are a very small number of very, very, very limited exceptions to the First Amendment. And those exceptions are extremely narrowly defined, such that they often do not mean what you might think they mean colloquially. In this case, the key hook the plaintiffs are aiming for is that Trump was inciting imminent lawless action (the assault and battery). There are a number of cases on this topic, but without going way deep into the First Amendment weeds, the key one is Brandenberg v. Ohio, in which the Supreme Court said you couldn't punish more abstract advocacy of violence, but rather the speech had to be "advocacy... directed to inciting or producing imminent lawless action and is likely to incite or produce such action."Do Trump's comments at his rallies reach this standard? I don't know. It's generally a pretty tough hill to climb, and if I had to make a prediction in the case, I'd bet that the speech in this case doesn't reach the bar to make it exempt from the First Amendment. And there are a number of reasons that a court may never actually decide this anyway. But, suffice it to say, it's pretty rare for the vast majority of speech to meet the qualifications to meet this test, and people who think that someone saying something mean or racist or obnoxious is not protected by the First Amendment are... generally speaking, going to be wrong.So, back to the reporting in this particular case. Ken "Popehat" White has already done two explainers on why the first two examples of bad reporting above were wrong, so I'll give you the shortened version on those. The judge in the case did not say that Trump incited violence. Instead, Trump and his campaign filed for a motion to dismiss, which is a pretty standard first move in lots of cases. Quick lesson in civil procedure from a non-lawyer: when you file for what's known as a 12(b)(6) motion to dismiss, you're basically saying "even if all the facts in the complaint are absolutely accurate, there's still not enough there to meet the bar to bring a claim here." That is, this is what you do before you even bother disputing the facts. You tell the court "it doesn't matter whether the complaint is accurate, because even if accurate, that's not enough to state a claim." Or, as Ken explains:

Well, it looks like we may have our latest moral panic to deal with. The UK's National Crime Agency is warning that kids modding video games may be a gateway to becoming criminal hackers:

As you probably recall, a few weeks ago Twitter sued Homeland Security after it received a summons from Customs & Border Patrol seeking to identify any information about the @ALT_uscis account. USCIS is the US Citizenship and Immigration Service, and the "alt" part is similar to many other such accounts purporting to be anonymous insiders in the government reporting on what's happening there (whether or not the operators of those accounts truly are inside those organizations is an open question). Anyway, the issue here is that such a use of Twitter would be protected by the First Amendment, and unless the account was revealing classified info, it's unlikely that there would be any legit means to investigate who was behind the account. And, because of that, it certainly appeared that Customs and Border Patrol decided to use illegitimate means to get the info. Specifically it sent a 19 USC 1509 summons, which is an investigative tool for determining the correct duties, fees or taxes on imported goods. As you can see, identifying a Twitter user does not seem to fit into what that law is for.Having been called out on this in federal court (and, one hopes, having DOJ lawyers chew out DHS/CBP folks), the feds dropped the summons hours later and Twitter withdrew the lawsuit.However, abusing the law to seek out information like that is a pretty major abuse, and is one that shouldn't just let everyone move on afterwards without some sort of accountability. Senator Ron Wyden asked Homeland Security's Inspector General if it was investigating this and, in a fairly straightforward and open letter, DHS IG, John Roth, lets Wyden know that an investigation is ongoing and even clarifies what they are investigating and why. The letter itself is pretty clear, so I'll just post a chunk of it here:

This week, three of our four winning comments came in response to our thorough look at why the Charging Bull sculptor's supporters are off-base. Taking first place on the insightful side was jupiterkansas making the important point that while the artist has every right to disapprove of the Fearless Girl statue, there are much better ways to handle it than making legal threats:

Five Years AgoThis week in 2012, following widespread protests, ACTA was on the verge of death — but that hadn't stopped G8 countries from already preparing to replace it. Similarly, following the SOPA defeat, the usual copyright maximalist suspects were regrouping to come up with new tactics for fighting the public (and surely the revolving door between the MPAA and the federal government would help out on that front). Meanwhile, the lawmakers behind the new awful bill — CISPA — were downplaying the protests against it, even though the White House was also (meekly) opposed to the bill.Also this week in 2012: Twitter unveiled its revolutionary patent agreement, and the Oracle/Google fight began heating up over the originally-secondary API copyright issues that would come to dominate the case.Ten Years AgoMaybe all those lawmakers should have read our post five years earlier in 2007, all about how politicians need to understand the internet before trying to regulate it. Of course, at the time, you had high new webcasting royalty rates from the RIAA, Sony's DRM on DVDs causing all sorts of problems, the Authors Guild calling writers who give away content 'scabs', and telco-funded think tanks insisting anyone who supports net neutrality is just a pirate. Some corporate competitions were getting nasty too, with Microsoft lobbing antitrust accusations over Google's purchase of DoubleClick and Ticketmaster suing StubHub over exclusivity.Meanwhile, Mike's series on the economics of scarcity drew some poorly-argued ire from sources ranging from CNN's James Ledbetter to Dilbert creator Scott Adams (the latter of which turned into a longer back-and-forth).Fifteen Years AgoThis week in 2002, lots of people were grappling with new questions and trends raised by technology. Parents were deciding whether or not to use internet filters for their kids while workplaces were getting into the idea of monitoring employees' instant messaging; texting was becoming a favorite tool of schoolyard bullies and, unsurprisingly, sexting was already on the rise (though still unnamed). Meanwhile, a new study was showing that the death of Napster did little to change the popularity of digital music, even as the recording industry continued to blame file sharing for all its woes (rather than, say, idiotic DRM "compromises" like a CD that lets you send temporary copies that "expire" to friends).But every now and then in doing this rundown, I find one of those posts that sounded so innocent at the time and now evokes an instantaneous "oh if only you knew..." reaction — such as this brief post noting Nathan Myhrvold's "interesting idea" to start up an "invention factory." Can anyone recall how that turned out?Forty Years AgoThough the technology had already been in development and testing for some time, it was today on April 22nd that fiber-optic cable was first used to carry telephone traffic, reaching 6 Mbit/s speeds all the way back in 1977.

A few months ago, we noted that the Gates Foundation has emerged as one of the leaders in requiring the research that it funds to be released as open access and open data -- an interesting application of the money that Bill Gates made from closed-source software. Now it seems that his successor as Microsoft CEO, Steve Ballmer, has had a similar epiphany about openness. Back in 2001, Ballmer famously called GNU/Linux "a cancer". Although he later softened his views on software somewhat, that was largely because he optimistically claimed that the threat to Microsoft from free software was "in the rearview mirror". Not really: today, the Linux-based Android has almost two orders of magnitude more market share than Windows Phone. However, there's one area of openness that Ballmer seems to have embraced whole-heartedly for his new project USAFacts, which launched this week -- open data: