We've been sounding the warning bells on this for some time now, but the craft beer industry has a trademark problem. As the industry continues its explosive growth, bringing with that growth all of the benefits to the economy and to the public along with it, so too has grown the industry's use of trademarks on all of these new brands. What once was a relatively small cottage industry filled with congenial small players has morphed into very big business. Morphing with it has been that congenial attitude in the industry, with craft breweries now far more protective of their brands and far more willing to send out legal threats and engage in court battles over intellectual property than ever before. It's gotten to the point that even intellectual property attorneys are beginning to warn everyone that the lawsuits and threats are going to inevitably increase. This represents a roadblock to an otherwise thriving industry and it's only going to get worse.That's because, in the last ten years alone, trademark registrations for craft brews have doubled in number, while just this past year at least one market has seen a twenty-percent increase in registrations.

The Ninth Circuit Appeals Court has handed down a decision which appears to lower the bar for probable cause. The government's evidence -- obtained via a warrantless search -- will remain unsuppressed. Here's the summary of the decision [PDF]:

In the lead up to Hurricane Irma hitting Florida over the weekend, Tesla did something kind of interesting: it gave a "free" upgrade to a bunch of Tesla drivers in Florida, extending the range of those vehicles, to make it easier for them to evacuate the state. Now, as an initial response, this may seem praiseworthy. The company did something (at no cost to car-owners) to help them evacuate from a serious danger zone. In a complete vacuum, that sounds like a good idea. But there are a variety of problems with it when put back into context.The first thing you need to understand is that while Tesla sells different version of its Model S, with different ranges, the range is actually entirely software-dependent. That is, it uses the same batteries in different cars -- it just limits how much they'll charge via software. Thus, spend more on a "nicer" model and more of the battery is used. So all that happened here was that Tesla "upgraded" these cars with an over the air update. In some ways, this feels kind of neat -- it means that a Tesla owner could "purchase" an upgrade to extend the range of the car. But it should also be somewhat terrifying.In some areas, this has lead to discussions about the possibility of hacking the software on the cheaper version to unlock the greater battery power -- and I, for one, can't wait to see the CFAA lawsuit that eventually comes out of that should it ever happen (at least some people are hacking into the Tesla's battery management system, but just to determine how much capacity is really available).But this brings us back to the same old discussion of whether or not you really own what you've bought. When a company can automagically update the physical product you bought from them, it at least raises some serious questions. Yes, in this case, it's being used for a good purpose: to hopefully make it easier for Tesla owners to get the hell out of Florida. But it works the other way too, as law professor Elizabeth Jo points out:

A year and a half ago, we wrote about how the same team of lawyers who successfully got "Happy Birthday" recognized as being in the public domain (despite decades of Warner Chappell claiming otherwise, and making boatloads of money) had set their sites on a similar fight over the copyright status of the song "We Shall Overcome." There were a lot of details in the original lawsuit that we wrote about -- all suggesting very strongly that the song "We Shall Overcome" was way older than the copyright holder claimed, and it was almost certainly in the public domain.There's been some back and forth in the case, but a new ruling on summary judgment motions effectively says key parts of the song are not under copyright. Specifically at issue is whether or not the first and fifth verse of the song are "sufficiently original" to qualify for copyright. And here, Judge Denise Cote says "nope." The verse in question is probably the part of the song you know:

No job too small. That's asset forfeiture for you. But small jobs are the safest jobs when it comes to the government keeping someone else's property. Keeping the seizures small makes it less likely they'll be challenged by those whose property was taken.The year-end totals may look impressive, but behind those totals are lots and lots of tiny cash grabs. In the cases where agencies' forfeitures have been itemized and examined (which is a rarity -- there's a ton of opacity in forfeiture reporting), the largest number of forfeitures are for the smallest amounts, usually well under $1,000.Officers take what they can because they can. A video going viral on Twitter shows a California police officer rummaging through the wallet of an unlicensed street vendor and taking the vendor's cash and debit card. A citation and a shutdown of the hot dog stand should have been enough. But it wasn't. Officer Sean Aranas decided -- with the only citation handed out during the football game -- to take the man's earnings.

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We've pointed out time and time again that one of the problems with setting up any rules that allow for content to be taken down online is just how widely they will be abused. This is one of the reasons why we think that CDA 230's immunity is much better than the DMCA 512 safe harbors. Under CDA 230, if a platform receives a takedown over content that is, say, defamatory, they get to decide how best to act, without a change in their own legal liability. They can take it down, or they can leave it up, but there's no greater legal risk in either decision. With the DMCA, it's different. If you, as a platform, refuse to take down the content, you then risk much greater legal liability. And, because of this, we regularly see the DMCA abused by anyone who wants to make certain content disappear -- even if it has nothing to do with copyright.Take this latest example of game developer Sean Vanaman, who has promised to issue DMCA takedown notices for YouTube star PewDiePie's (Felix Kjellberg) videos featuring Vanaman's video game, Firewatch:

So you may have noticed this already, but giant telecom conglomerates don't much like having to upgrade their networks, especially in lower ROI areas. And while that's understandable from a purely-financial perspective, this practice is creating some major, notable broadband deployment holes where poor people tend to live. With telcos specifically refusing to upgrade lagging DSL networks at any real scale, that's also creating an emboldened cable broadband monopoly in many areas. That by proxy keeps prices high, speeds low, and allows the introduction of things like bullshit usage caps and overage fees.By and large, localized efforts to do something about this generally run face-first into brick walls, thanks in large part to the almost comical stranglehold most ISPs have over state legislatures and regional telecom regulators. In many instances this culminates in ISPs not only refusing to expand their networks into under-served areas, but quite literally writing protectionist state laws to make sure nobody else can, either. This cake and eat it too mentality persists in countless states that have prioritized campaign contributions from the likes of AT&T and Comcast over the general welfare of their public constituents.Despite the broadband industry consistently whining about "burdensome regulation," the reality is there's little to nothing passing for real oversight in many of these areas, and the regulation that is written -- is often focused primarily on protecting these duopolies' uncompetitive geographical fiefdoms. In Vermont, the Vermont Public Utility Commission (VPUC) recently tried to buck this trend by including provisions in Comcast's 11 year permit (pdf) with the state requiring it to not only retain public access programming in the state, but expand "no less than" 550 miles of additional cable into under-served Vermont communities over 11 years.To be clear, deploying that much cable over more than a decade is a pittance to a company that sees $21 billion in quarterly revenues. But instead, Comcast decided to sue the state, claiming that doing this extra work violates the company's First Amendment rights:

How private are your medical records? You'd think they'd be pretty damn private, considering Congress specifically passed a law regulating the disclosure of these sensitive records. Some states feel the same way, extending even greater privacy protections to things like prescription records. Not only are medical entities prevented from passing on sensitive info without patients' consent, local law enforcement agencies aren't allowed to obtain third-party records like prescription data without a warrant.Seems pretty locked down, but as Leslie Francis and John Francis point out at the Oxford University Press blog, federal law enforcement agencies have undone both Congressional protections and state protections.

This week, we're going to go out of order again, since we've got a good discussion with our first place winner in the middle — sandwiched by two good editor's choices. On our post about friend-of-patent-trolls Judge Rodney Gilstrap crafting an incredibly broad set of conditions for having patent cases heard in East Texas, aerinai offered up our first editor's choice for insightful with some thoughts on the impact this will have:

Five Years AgoThis week in 2012, as the election drew near, we noted that both the Democrats and Republicans were in deep denial about the need for copyright reform — even as the tide seemed to be turning on bad copyright laws in some other countries. Meanwhile, the copyright takedown game was going nuts as usual, with rightsholders issuing takedowns over content that has been gone for months, and automated bots managing to take down the live-stream of the Hugo awards (for showing clips from an award-winning show) and even the official stream of the Democratic National Convention (with claims from a shockingly long list of media companies).Ten Years AgoIronically for sci-fi fans who couldn't watch the Hugos in 2012, this same week in 2007 it was a sci-fi writers group abusing the DMCA to take down content. Meanwhile, Ridley Scott gave as an interlude from Hollywood's usual complaints about technology being used for piracy (like the MPAA's new crusade against camcording in UK cinemas) to complain about small screens killing the art form. This was also the week that Apple made major updates to its iPod line including the introduction of the iPod Touch, and we noted that the excitement around the technology was itself a good argument against music industry business models.Fifteen Years AgoThis week in 2002, record labels were actually backing away from copy protection, although their official music download sites were still languishing in obscurity. The industry was fresh off an insane attempt to stop piracy with a lawsuit against internet backbone providers, and Duke University had just received a curious anonymous $1-million donation to fight abuse of the DMCA. This was also the week that Greece passed a somewhat-infamous anti-gaming law that, due to its vague wording, effectively banned all video games.

Okay, chances are you've already heard about the massive security breach at Equifax, that leaked a ton of important data on potentially 143 million people in the US (basically the majority of adults in America). If you haven't, you need to pay more attention to the news. I won't get into all the details of what happened here, but I want to follow a few threads:First, Equifax had been sitting on the knowledge of this breach since July. There is some dispute over how quickly companies should disclose breaches, and it makes sense to give companies at least some time to get everything in order before going public. But here it's not clear what Equifax actually did. The company has seemed almost comically unprepared for this announcement in so many ways. Most incredibly, the site that Equifax set up for checking if your data has been compromised (short answer: yeah, it almost certainly was...) was on a consumer hosting plan using a free shared SSL certificate, a funky domain and an anonymous Whois record. And, incredibly, it asked you for most of your Social Security Number. In short, it's set up in a nearly identical manner to a typical phishing site. Oh and it left open the fact that the site had only one user -- "Edelman" -- the name of a big PR firm.Not surprisingly, it didn't take long for various security tools to warn that the site wasn't safe.

RESOLVED: this nation's intelligence oversight is indisputably useless. It's about 99% joke and 1% Ron Wyden dog-whistle questions that go unanswered for months or years. Committees on both sides of the legislature are composed mostly of surveillance cheerleaders and flak catchers profoundly uninterested in performing actual oversight. Reform efforts tend to take place despite the intelligence committees, rather than because of them. Every so often, positive changes are made for purely partisan reasons.Super-friendly "oversight" committees aren't helping hold our nation's multiple intelligence agencies accountable. But it goes deeper than lawmaking fanboys/girls holding prominent positions in intelligence committees. The desire to limit accountability traces back further than the front-mouths lobbing softballs to IC leaders at Congressional hearings. As Tim Johnson and Ben Wieder report for McClatchy News, the intelligence community has been stocking committees with home teamers for years.

The Massachusetts Supreme Court has reaffirmed the fact that students (and other people on school campuses) don't have location-based Constitutional rights. A pat-frisk of a nonstudent by a police officer on a school's campus resulted in the warrantless search of his backpack and the discovery of marijuana, a scale, and a handgun. All of these items may as well have never existed at all, thanks to the officer having zero reasonable suspicion to perform the frisk, much less the probable cause to search the backpack.

If the ongoing battle between copyright infringers and copyright holders could be described in any simple term, that term would have to be whac-a-mole. Since the early days of piracy on the internet, the copyright industries have used their legal mallets to smack down any site or service whose head managed to rise out of obscurity. Napster was pushed into irrelevance, as were other similar apps. Then websites that hosted infringing files were slammed. At present, we are in the midst of a crackdown on torrent sites, with the copyright industries blaming them for widespread infringement.However, those who are dedicated to sharing content illicitly are indeed dedicated. And so the game will continue into avenues of piracy that are fairly creative.

Because ageism is allegedly rampant in Hollywood, California legislators have decided to address the problem head on not at all. Instead of enforcing on-the-books laws against employment discrimination, the legislature -- backed by the Screen Actors Guild -- has decided some of the First Amendment has to go. It has crafted a new law to fight ageism in Hollywood studios… by targeting a popular movie database. In California, A + B = WTF.The law -- currently blocked by an injunction -- forbids third-party sites with paid subscribers from publishing certain facts about actors and actresses. The only fact at issue is their age. And, despite lawmakers pretending the stupid, unconstitutional law targets a variety of websites, it's really only having an effect on one: IMDb.This failure of a law stems from a failure of a lawsuit brought by actress Junie Hoang, who blamed her lack of starring roles on IMDb publishing her real age. She wanted $1 million in damages, apparently expecting IMDb to subsidize her next 500 years of denied acting opportunities. (Discovery during the suit revealed Hoang made less than $2000/year from acting.)The Fail Train rolls on with the Screen Actors Guild offering its full-throated approval of First Amendment limitations, as Elizabeth Nolan Brown reports.

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Oh, Charles Harder. Fresh off losing the lawsuit he filed against us on behalf of Shiva Ayyadurai, lawyer Charles Harder is right back at it. The NY Post was the first to report that Harder has filed a lawsuit in New York state court against Gizmodo Media Group and two of its employees: Anna Merlan and Emma Carmichael. Gizmodo Media Group is basically what used to be Gawker. After Harder sued Gawker into bankruptcy and Univision bought many of Gawker's assets, it put them into a new entity called GMG.Obviously, we have some opinions concerning Harder and his increasingly long list of lawsuits against media properties -- so feel free to take our analysis with however many grains of salt are necessary -- but this appears to be a pretty clear SLAPP suit designed to create more chilling effects on free speech. There are many, many reasons why this lawsuit is almost certainly a total and complete dud. But, that doesn't mean it won't be costly and annoying for GMG (even with Univision's help) and the two named individual defendants. The lawsuit is a response to an article on the site Jezebel entitled Inside Superstar Machine, Which Ex-Members Say Is a Cult Preying on New York’s Creative Women. The lawsuit is filed on behalf of Greg Scherick and his company "International Scherick" -- which is also called "Superstar Machine."You can read the article, written by Merlan, which details claims by multiple young women about how they were a part of an organization of sorts, run by Scherick, that was part motivational group and part... something else. Multiple women are quoted using the word "cult." Here's one clip, quoting a woman named "Rose":

Back in 2015, the FCC raised the standard definition of broadband from 4 Mbps down, 1 Mbps up, to an arguably-more-modern 25 Mbps down, 3 Mbps up. Of course the uncompetitive broadband industry (and the lawmakers who adore them) subsequently threw a collective hissy fit about the change, because they realized a higher bar would only highlight their failure to deliver next-generation broadband to vast swaths of America.And highlight it did: by this new metric, two-thirds of the country lack access to real broadband from more than one ISP. We've explored repeatedly how this is due to a refusal by the nation's telcos to upgrade lagging DSL connections, leaving cable companies with a growing broadband monopoly across huge swaths of the country. With this reduction in competition comes a growing apathy to customer service, as well as the ability to impose new unnecessary and arbitrary usage caps (read: price hikes) without any competitive reaction by the broken market.Normally, this is where regulators would step in with policies aimed at shoring up this lack of competition. Under the Telecommunications Act, the FCC is required by law to track broadband deployment and competition and -- if things aren't up to snuff -- "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." But if you fiddle with how precisely broadband penetration and competition is measured, you can avoid having to admit there's a problem, or do anything about it.With industry-ally Ajit Pai now in charge of the FCC, the telecom industry has been lobbying to weaken the standard definition of broadband to help mask the sector's shortcomings. As if on demand, a new FCC proposal would lower the definition of broadband by declaring a region covered if it has access to wireless data connections at speeds of 10 Mbps. The goal: lower the goalposts for the express benefit of lazy telecom duopolies. Duopolies that talk a good game about "closing the digital divide," but refuse to upgrade huge swaths of their networks (espcially the parts where disadvantaged and poor people live) -- and lobby for protectionist state laws ensuring nobody else can, either.Of course the FCC isn't framing their decision as the industry-coddling myopia it is, instead declaring this a "modernization" of FCC policy, in some instances fooling media outlets into thinking this is about "reclassying wireless broadband" for some ambiguously noble policy purpose. But a handful of Senators this week criticized the FCC's new plan, highlighting (correctly) how lowering the broadband deployment bar to ankle height is a disservice to those waiting for, or trying to deploy, better broadband:

At long last, Uganda's anti-porn "machine" has arrived. As The Next Web notes, the country's government placed an order for a porn-blocking machine last year, following on the heels of yet another anti-porn law. A company in South Korea has helpfully cobbled this together and presumably the Ugandan government will be deploying it shortly.How does it work? No one knows for sure, possibly not even those in the government who spent $88,000 for it. TechZim has a theory.

Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."

Good news, citizens. The police are here to tell you who the real journalists are.

We've long talked about the problems that come along with government mandating ISPs to act as copyright police by blocking so-called "pirate" websites. The issues with these attempts are many, ranging from their muted impact on piracy to concerns over just how a website is deemed to be a "pirate" website to the inevitable collateral damage sustained by non-infringing sites. With the last of those, you can pretty much set your watch to the stories of innocent sites being caught up in this sort of censorship. Still, the breadth of this particular problem likely escapes many people.To get a handle on the sort of scope we're talking about, we can take a look at Russia. In response to international accusations of the government being lax on matters of copyright infringement, Russia enacted legislation in 2013 that tasked ISPs and hosting providers with blocking pirate websites. It's been nearly half a decade, so let's check in and see what sort of impact that legislation has had.

We've long talked about the problems that come along with government mandating ISPs to act as copyright police by blocking so-called "pirate" websites. The issues with these attempts are many, ranging from their muted impact on piracy to concerns over just how a website is deemed to be a "pirate" website to the inevitable collateral damage sustained by non-infringing sites. With the last of those, you can pretty much set your watch to the stories of innocent sites being caught up in this sort of censorship. Still, the breadth of this particular problem likely escapes many people.To get a handle on the sort of scope we're talking about, we can take a look at Russia. In response to international accusations of the government being lax on matters of copyright infringement, Russia enacted legislation in 2013 that tasked ISPs and hosting providers with blocking pirate websites. It's been nearly half a decade, so let's check in and see what sort of impact that legislation has had.

You might recall that back in 2015, Lenovo was busted for installing a nasty bit of snoopware made by a company named Superfish on select models of the company's Thinkpad laptops. Superfish's VisualDiscovery wasn't just annoying adware however; it was so poorly designed that it effectively made all of Lenovo's customers vulnerable to HTTPS man-in-the-middle attacks that were relatively trivial for an attacker to carry out. More specifically, it installed a self-signed root HTTPS certificate that could intercept encrypted traffic for every website a user visits -- one that falsely represented itself as the official website certificate.That's hugely problematic for what should be obvious reasons, but Lenovo doubled down on dumb by issuing a statement initially claiming it didn't see what all the fuss was about and that it was just trying to "improve the shopping experience":

When faced with First Amendment activity they don't care for, some legislators attempt to gerrymander this right until it only contains the speech they like. This can take the form of cyberbullying bills, hate speech legislation, and, lately, anti-protesting laws.The problem with these efforts is they routinely run afoul of the Constitution. Some do better than others trying to stay within the confines of what can actually be controlled by the government, but in most cases, the proposed laws are badly-written rush jobs attempting to paper over the current issue du jour.Another anti-protesting law is in the works, prompted by oil pipeline demonstrations both in North Dakota and, closer to home, in the district of the state rep introducing the bill, Scott Martin of Lancaster County, Pennsylvania.

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We've written a few times about Judge Rodney Gilstrap, an East Texas federal district court judge, whom patent trolls seem to love. For well over a decade, we've discussed how patent trolls absolutely love to file cases in East Texas, and in the past few years, Gilstrap has basically been the judge for patent cases in East Texas. Incredibly, in 2016, Gilstrap alone handled 20% of all patent cases in the country (that was true in earlier years as well). Not 20% of the patent cases filed in East Texas -- but in the whole country. And if you read that link, you see that Gilstrap seems (a) proud of this and (b) insists that people are upset about all the patent cases going to East Texas because they don't like small-town America -- and not because the court makes it that much easier for trolls to shake down everyone.Now, as you may recall, the Supreme Court, just a few months ago, appeared to slam the door shut on patent troll venue shopping with its ruling in the TC Heartland case. In that case, the Supreme Court ruled that patent law is pretty clear, that you need to sue where the supposed infringer "resides." For years, the courts had ignored this -- despite it being plainly stated in the law -- and said that you could file a lawsuit wherever a company did any business (and with many companies, that means anywhere at all).Many folks suggested that the SCOTUS TC Heartland ruling should put a real damper on patent trolls running to Judge Gilstrap and East Texas.However, it appears that Gilstrap may have other ideas. Ryley Bennett, from the Washington Legal Foundation, recently wrote up a depressing article about how Gilstrap appears to have come up with a new "test" for patent venue that more or less wipes out the Supreme Court's ruling. The case was a patent infringement case where Raytheon sued Cray in East Texas. Cray argued for a change of venue, which Gilstrap denied (just a month before the SCOTUS ruling on TC Heartland), pointing to a sale Cray had made in East Texas. So after TC Heartland, Cray asked Gilstrap to reconsider with that new precedent. And here, Gilstrap single-handedly created a new "test" about what is meant by "resides" in, making it possible to keep many cases in East Texas. The key here was that Cray had a single sales person who worked from home in the Eastern District of Texas. And, to Gilstrap, that's enough to establish "residence."Bennett explains why this is so problematic:

Large ISPs continue to try their best to pretend they adore net neutrality, and have nothing to do with their own perpetual efforts to crush FCC rules designed to keep the internet relatively open and competitive. Verizon recently released an utterly-comical video that blatantly lied about its role in killing the FCC's consumer protections. And companies like Comcast have penned blog post after blog post falsely claiming that the entire world somehow has it all wrong, and companies with a generation of documented anti-competitive behavior are really just misunderstood sweethearts being falsely maligned by fringe radicals.You just know Comcast is telling the truth, since it has proudly, repeatedly declared as much in all caps and pretty colors::Bullshit doesn't magically become reality with a change of font. Enter top Comcast lobbyist (the company apparently hates it when you call him that) David Cohen, who recently penned yet another blog post whining incessantly about how the fifteen-year net neutrality debate has become a lot like Groundhog Day, with the same players being forced to make the same arguments over and over again, ad infinitum:

Sheriff Grady Judd of Polk County, Florida, spent most of Wednesday morning letting America know what an awful person he is. With Hurricane Irma bearing down on Florida, Judd helpfully suggested sex offenders or those with outstanding warrants would be better off lashing themselves to a nearby tree rather than seeking shelter.

As you likely know, for most of the past nine months, we've been dealing with a defamation lawsuit from Shiva Ayyadurai, who claims to have invented email. This is a claim that we have disputed at great length and in great detail, showing how email existed long before Ayyadurai wrote his program. We pointed to the well documented public history of email, and how basically all of the components that Ayyadurai now claims credit for preceded his own work. We discussed how his arguments were, at best, misleading, such as arguing that the copyright on his program proved that he was the "inventor of email" -- since patents and copyrights are very different, and just because Microsoft has a copyright on "Windows" it does not mean it "invented" the concept of a windowed graphical user interface (because it did not). As I have said, a case like this is extremely draining -- especially on an emotional level -- and can create massive chilling effects on free speech.A few hours ago, the judge ruled and we prevailed. The case has been dismissed and the judge rejected Ayyadurai's request to file an amended complaint. We are certainly pleased with the decision and his analysis, which notes over and over again that everything that we stated was clearly protected speech, and the defamation (and other claims) had no merit. This is, clearly, a big win for the First Amendment and free speech -- especially the right to call out and criticize a public figure such as Shiva Ayyadurai, who is now running for the US Senate in Massachusetts. We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.We are disappointed, however, that the judge denied our separate motion to strike under California's anti-SLAPP law. For years, we've discussed the importance of strong anti-SLAPP laws that protect individuals and sites from going through costly legal battles. Good anti-SLAPP laws do two things: they stop lawsuits early and they make those who bring SLAPP suits -- that is, lawsuits clearly designed to silence protected speech -- pay the legal fees. The question in this case was whether or not California's anti-SLAPP law should apply to a case brought in Massachusetts. While other courts have said that the state of the speaker should determine which anti-SLAPP laws are applied (even in other states' courts), it was an issue that had not yet been ruled upon in the First Circuit where this case was heard. While we're happy with the overall dismissal and the strong language used to support our free speech rights, we're nevertheless disappointed that the judge chose not to apply California's anti-SLAPP law here.However, that just reinforces the argument we've been making for years: we need stronger anti-SLAPP laws in many states (including Massachusetts) and, even more importantly, we need a strong federal anti-SLAPP law to protect against frivolous lawsuits designed to silence protected speech. The results of this case have only strengthened our resolve to do everything possible to continue to fight hard for protecting freedom of expression and to push for stronger anti-SLAPP laws that make free speech possible, and not burdensome and expensive.You have not heard the last from us on the issue of the First Amendment, free speech and anti-SLAPP laws -- or how some try to use the court system to silence and bully critics. Step one of this is our new Free Speech edition, which we announced just a few weeks ago, where we are focusing more of our reporting efforts on issues related to free speech and anti-SLAPP. We intend to do a lot more as well. For years, we've talked about these issues from the position of an observer, and now we can talk about them from the perspective of someone who has gone through this process as well.Of course, if you have to face something like this, it helps to have great lawyers--and we're immensely grateful for the incredible hard-work of Rob Bertsche, Jeff Pyle and Thomas Sutcliffe along with the rest of the team at their firm, Prince Lobel Tye LLP.Finally, I can't even begin to thank everyone who has supported us over the past nine months -- whether by kind words (you don't know how much that helped!) or through our survival fund at ISupportJournalism.com or by becoming a Techdirt Insider. We just passed Techdirt's 20th anniversary and while it's one thing to think that people like and support you, it's another thing altogether to see how people come out to support you when it matters most. And we were overwhelmed by the support we received over the past nine months, and the kind words and help that many, many people offered. It was beyond heartening, and, once again, it reinforces our resolve to continue to speak up for free speech and to do what we can to protect others' ability to speak out as well.

A decision [PDF] handed down by the Appeals Court presiding over military cases that almost affirms Fifth Amendment protections against being forced unlock devices and/or hand over passwords. Almost. The CAAF (Court of Appeals for the Armed Forces) doesn't quite connect the final dot, but does at least discuss the issue, rather than dismiss the Fifth Amendment question out of hand. (h/t FourthAmendment.com]The case stems from a harassment case against a soldier who violated (apparently repeatedly) a no-contact order separating him from his wife. After being taken into custody, Sgt. Edward Mitchell demanded to speak to a lawyer. Rather than provide him with a lawyer, investigators asked him to unlock his phone instead.

Jolly new Attorney General Jeff Sessions can't wait to put the screws to all those Americans who didn't have the sense to seek employment as law enforcement officers. Sessions wants harsher drug sentencing, less oversight, and the revival of programs abandoned in the 80s and 90s after they proved to have zero effect on rising crime rates.Sessions, with the support of the Trump Administration, is rolling back the last administration's minor reforms to the 1033 program, which allowed local law enforcement agencies to obtain MRAPs, assault rifles, grenade launchers… whatever it took to defend the annual Mule Day Parade from terrorist attacks. Fun fact: these same items are apparently crucial components of flood rescue efforts in Houston, TX. [Cue shooting star and the words "The More You Know," soon to be riddled with bullet holes for startling MRAP-riding 1033 recipients with their sudden appearance…]Asset forfeiture is coming back, too. Sessions has opened the federal loophole closed by his predecessor, allowing local agencies to give the finger to legislators and the people they serve as they bypass local reform efforts and cash in on other people's property. Sessions appeared to be this close to visible arousal when discussing the return of the Federal Forfeiture Loophole during a law enforcement conference in Alabama.

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Hold on tight: we're going to get down into the weeds a bit on a copyright issue. In early 2016, we wrote about the "insanity of music licensing" as it related to streaming music, and Spotify in particular. This was in response to a series of class action lawsuits filed against Spotify by songwriters, claiming a failure to properly license so-called "mechanical rights." As I noted at the time, I talked the case over with a large number of copyright lawyers -- and many were left scratching their heads regarding what the lawsuit was actually about. Spotify, of course, is famous because it's a licensed music streaming service. That's it's whole thing. But, as we discussed, part of the problem is that there are a ridiculous number of different possible licenses out there -- many of which were designed for different types of technologies, and, when it comes to internet services, some people seem to assume that the services need to license roughly "all of them."So, it was always known that a company like Spotify needed to secure negotiated license to use the sound recordings (that's from whoever holds the copyright on the actual recording -- not the composition). And they had to get public performance licenses from Performance Rights Organizations (PROs). But the question in these lawsuits was about an entirely different license -- the "mechanical" license. As you may have guessed from the name, a "mechanical" license comes from way back in the day, when the companies manufacturing records needed to get a license from the composer for the sake of reproducing and distributing the songs which those songwriters wrote.And here's where we do some copyright 101. Section 106 of the Copyright Act includes a definitive list of six rights that copyright may grant the holder an exclusive right to (absent something such as fair use). These then are the specific exclusive rights under copyright law:

While ISP lobbyists are pushing the government to kill net neutrality protections, they're also pushing hard for a new net neutrality law. Why? With our current historically-dysfunctional and cash-compromised Congress, large ISPs like AT&T and Comcast know that their lawyers and lobbyists will be the ones writing the law -- if it gets passed at all. The end result will be a law ISPs will profess "puts the debate to bed," but which contains so many loopholes as to be effectively meaningless when it comes to protecting consumers and competition.As a cornerstone of this new push, lawmakers in July sent out invitations to CEOs of major tech companies and major ISPs for a September hearing to be held in front of the House Energy and Commerce Committee. The meeting was, the invitation claimed, an opportunity for stakeholders (only apparently the wealthiest ones) to "rethink the current regulatory model and build new rules from the ground up" in Congress. Again, this is something ISPs have been lobbying for knowing it either won't happen, or if it does will be so loophole-filled as to be worse than useless.Amusingly, however, none of the invited CEOs from telecoms or Silicon Valley's biggest, wealthiest companies were interested in testifying publicly at the hearing:

Once again, someone's suggesting the best way to combat the spread of terrorist-related communications online is to make the tech companies do it, have them foot the bill, and do it all without being legislated into submission or making impudent comments like "That's not how any of this works."Traveling beyond the groundwork of "necessary hashtags" and constant threats to bludgeon tech companies into mandatory, worldwide speech policing, the UK's independent reviewer of terrorism laws -- former key terrorism prosecutor Max Hill QC -- suggests the better route lies not through legislation, but through some sort of tech wizardry.

Better late than never is the motto of Canadian law enforcement Stingray Squads. Documents obtained by Vice Canada show police scrambling to obtain warrants for equipment they were already deploying.

You will recall that a few weeks back we discussed the Paris Olympic Committee's open attitude towards looking at eSports for inclusion in the upcoming 2024 Olympic Games. This refreshing stance from an Olympic committee was a welcome step in the eSports trend, although it came with no promises taht we would actually see eSports in Paris seven years from now. The IOC, as always, would have the final say, and we all knew the massive headwind eSports would face with the grandpappy Olympic committee: eSports aren't real sports. Hell, I'm sure many advocates for competitive gaming were already gearing up to fight that fight.Unfortunately, it looks like the IOC is likely to turn its nose up at eSports for entirely different and far, far more stupid reasons. The first of those dumb reasons, according to IOC President Thomas Bach, will indeed have a familiar ring to gamers.

UK law enforcement has proudly been using facial recognition for tech for a few years now. As is the case with any new law enforcement tech advancement, it's being deployed as broadly as possible with as little oversight as agencies can get away with.As of 2015, UK law enforcement had 18 million faces stashed away in its databases. Presumably, the database did not contain 18 million criminals and their mugshots. Concerns were raised but waved away with promises to put policies in place at some point in the future and with grandiose claims of 100% reliability. The latter, naturally, came from the police inspector who headed the facial recognition department. Caveat: this had only been tested on a limited set using "clear images."What works well in theory and/or with limited datasets doesn't work especially well in practice. Here's how things went down when the facial recognition program was deployed in the wild.

The US court system has hosted a large number of lively discussions about the tactics used by the FBI in its Playpen child porn investigation. A lot of new ground was broken by the FBI, not all of it good. First, the agency kept a darkweb child porn site running for two weeks after it seized it. It did this to facilitate the distribution of malware designed to uncover information about the computers (and users) accessing the site.Adding to the mess was the malware itself. The FBI's Network Investigative Technique (NIT) was deployed across the US (and across the globe) via a single warrant signed by a magistrate judge in Virginia. Plenty of courts have declared the FBI's warrant invalid, as the search performed violated Rule 41's jurisdictional limitations. (Those limitations no longer exist, so chalk up a win for the DOJ.) Many have also called the NIT's extraction of IP addresses and device-identifying info a search. But very few judges have seen fit to suppress the evidence obtained, either finding no privacy expectations in IP addresses or granting the FBI "good faith."At the appellate level, only two Playpen cases have been heard, but both courts returned decisions in favor of the government. The process continues in full force at the lower levels, where the DOJ is still working its way through the dozens of cases springing from its NIT deployment.In Texas, a federal judge has decided [PDF] against suppressing evidence obtained with the FBI's NIT. But Judge Xavier Rodriguez does so while using a descriptive term the government vehemently disagrees with. [h/t Brad Heath]

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While large Silicon Valley companies like Google and Facebook are often credited for being "net neutrality supporters" in the media, their actual support of the concept is often incredibly flimsy. Though it's quick to claim otherwise, Google hasn't really supported net neutrality since around 2010 or so, progressively walking back its dedication as it pushed into the fixed and wireless broadband sectors. Similarly Facebook often says all the right things, but internationally has been repeatedly accused of trampling the open internet in its quest to dominate developing nation advertising markets.We're also now seeing similar behavior from companies like Netflix, which aggressively supported net neutrality when the streaming company was a scrappy upstart, but has since walked back its support now that it's an international video juggernaut. While these companies still occasionally pay lip service to the concept of net neutrality via their joint policy organizations, these are often token gestures -- leaving consumers, consumer advocates and smaller companies and startups alone and under-funded in the quest to maintain something vaguely resembling an open and level internet playing field.Apple has also paid little more than fleeting lip service to neutrality over the years -- and has been largely quiet as the Trump administration works to remove most meaningful oversight of the barely-competitive telecom sector. But last week the Cupertino giant took things a little further, filing comments with the FCC in support of protecting net neutrality. Sort of. Apple does make it clear that it doesn't think ISPs should indiscriminately block, throttle or otherwise hinder competitors' content:

Update:: The lawyers representing Dr. Phil's production company, Peteski Productions, have contested some of the statements made both in the original link we used from The Hollywood Reporter, and in our post below. THR has updated its story, and we've matched those updates. In particular, Peteski says that the video that Rothman copied -- which she claimed was evidence for her false imprisonment claim -- was actually something else entirely. From the filings, Rothman says that the video was a "bona fide example of Dr. McGraw's conduct for her lawsuit," but Peteski says it was not showing evidence of the "false imprisonment" claim at all. Peteski's lawyers argue it was something she sought to use "for commercial gain" (which the Judge disagreed with as noted below). Peteski's lawyer also implies that the false imprisonment claims are frivolous (noting that 200 to 300 people were at the meeting, and only Rothman sued -- and argues that the real reason she used her iPhone to copy the nine second video was for "exploiting it with other media." We've updated the article to clarify that the video is not of the claimed "false imprisonment" -- and that there is some dispute over what the video actually could be used for.We've seen some awful copyright rulings over the years, but this latest one from Judge Rodney Gilstrap in Texas* is a real corker. First covered by Eriq Gardner, over at the Hollywood Reporter, the story is a complex one involving TV personality Dr. Phil and accusations of him imprisoning a producer who worked for him. What could that possibly have to do with copyright? Well, read on...* If you recognize the name, it's because for the past few years, he's handled a huge number of patent cases. Indeed, last year alone, he (yes, just this one judge) handled 20% of all patent cases in the USGardner sums up the background to the lawsuit nicely:

Update:: The lawyers representing Dr. Phil's production company, Peteski Productions, have contested some of the statements made both in the original link we used from The Hollywood Reporter, and in our post below. THR has updated its story, and we've matched those updates. In particular, Peteski says that the video that Rothman copied -- which she claimed was evidence for her false imprisonment claim -- was actually something else entirely. From the filings, Rothman says that the video was a "bona fide example of Dr. McGraw's conduct for her lawsuit," but Peteski says it was not showing evidence of the "false imprisonment" claim at all. Peteski's lawyers argue it was something she sought to use "for commercial gain" (which the Judge disagreed with as noted below). Peteski's lawyer also implies that the false imprisonment claims are frivolous (noting that 200 to 300 people were at the meeting, and only Rothman sued -- and argues that the real reason she used her iPhone to copy the nine second video was for "exploiting it with other media." We've updated the article to clarify that the video is not of the claimed "false imprisonment" -- and that there is some dispute over what the video actually could be used for.We've seen some awful copyright rulings over the years, but this latest one from Judge Rodney Gilstrap in Texas* is a real corker. First covered by Eriq Gardner, over at the Hollywood Reporter, the story is a complex one involving TV personality Dr. Phil and accusations of him imprisoning a producer who worked for him. What could that possibly have to do with copyright? Well, read on...* If you recognize the name, it's because for the past few years, he's handled a huge number of patent cases. Indeed, last year alone, he (yes, just this one judge) handled 20% of all patent cases in the USGardner sums up the background to the lawsuit nicely:

Members of a New York "Black Lives Matter" group are suing the town of Clarkstown and its police department over illegal surveillance. The plaintiffs allege they were placed under surveillance by the Clarkstown PD's Strategic Intelligence Unit (SIU) for a number of reasons, none of which were legal uses of the agency's spy wares.It would seem the lawsuit [PDF] has a good chance of paying off. Allegations of racial profiling and illegally surveilling citizens for their First Amendment activities are backed by the results of investigations and one police official's own admissions.A letter to the US Attorney's office in New York, attached as an exhibit, bolsters the claims made in the BLM lawsuit. In it, Clarkstown town Supervisor George Hoehman details a long list of surveillance violations and other police misconduct.According to the letter [PDF], the SIU began surveillance of members of a play entitled "A Clean Shoot?" performed by a group called "We the People." The surveillance included constant monitoring of their social media profiles and the deployment of geofencing in hopes of capturing anyone else who might be involved with the group and/or the play.The Clarkstown PD shared the information it gathered with the Haverstraw Police Department -- information that included the results of searches of criminal databases. Clarkstown's SIU "warned" Haverstraw the next production of the play would be in September, but noted that participants posed no threat of violence despite harboring "strong opinions."When setting up the geofences, Clarkstown PD lumped BLM and We the People members in with gang members, terrorists, and other more legitimate targets of police surveillance. This continued even though they were told (repeatedly) by the local district attorney's office they should not have Black Lives Matter listed as a surveillance target.In August 2016, the special prosecutor handling the investigation of this surveillance demanded Clarkstown PD hand over communications pertaining to its spying on the two groups. He never received anything. Instead, Police Chief Michael Sullivan deleted all of the data from his issued cellphone. He also allowed Sgt. Steven Cole-Hatcher (head of the SIU) to wipe his own cellphone and to delete possibly-incriminating files from his departmental computer. Sullivan was suspended for fifteen days. Cole-Hatcher was given the opportunity to retire. He's now suing to get his job back and it's his filings that have generated a lot of the evidence needed by BLM to successfully pursue this lawsuit.The letter also alleges things unrelated to the BLM lawsuit, but equally disturbing. Local law enforcement officials have apparently engaged in election interference, surveillance of judges, and monitoring of the town supervisor's social media profiles with the department's surveillance software.Much of what's in the most recent lawsuit retreads allegations made previously. Fortunately, some of those allegations have already been sustained. The lawsuit pleads violations of the First and Fourth Amendment and seeks damages and injunctions against future unlawful surveillance.Chief Sullivan has (unhelpfully) explained BLM and We the People weren't singled out for unlawful surveillance. He stated "many other groups and individuals" were surveilled by the SIU -- a statement he made without clarifying whether these others instances were for legitimate reasons.Adding the latest allegations to those already sustained suggests local law enforcement agencies have more in common with cancerous growths than the "protectors and servants" ideal.

The EFF and ACLU have achieved a victory in an acronym-heavy public records case. The California Supreme Court has ruled the Los Angeles Police Department (LAPD) and Los Angeles Sheriff's Department (LASD) will have to turn over data acquired by their automatic license plate readers (ALPRs).Both entities tried to keep these records from the EFF and ACLU by claiming every single one of the millions of plate records were "investigatory records," exempt from disclosure under California's public records law. This apparently included the millions of "non-hit" records never utilized in any LAPD/LASD investigation. With the plate readers collecting 1.5-2 million records per week, they were basically arguing every driver passing by an ALPR was under investigation.That's not how the state's Supreme Court sees it [PDF]. The "investigatory records" exemption pertains to targeted, ongoing investigations. The public records law cannot be stretched to cover indiscriminate mass surveillance.

This week (or last week, I suppose — this post was moved for the long weekend!) our first place comment on the insightful side comes in response to Attorney General Jeff Sessions using Hurricane Harvey as an argument for increased police militarization. An anonymous commenter set things straight:

Five Years AgoThis week in 2012 started out with us catching up on something that happened late on the previous Friday: the jury in the Apple/Samsung patent trial released a surprise snap verdict that Samsung had infringed. Worryingly, they pretty much admitted that they ignored prior art and other key factors to do so — and the foreman's explanation in interviews showed he didn't really understand prior art to begin with. Of course, the whole thing seemed to be simply demonstrating the viability of Samsung products as an alternative to iPhones and iPads — and as you likely know, just last December, SCOTUS overturned this verdict.Ten Years AgoThis week in 2007, the RIAA managed to score a victory in one of its attempts to get a judge to say that "making available" counts as distribution, and immediately began pushing to spread that ruling to other courts. Viacom got meta in its habit of awful YouTube takedowns by taking down someone's video of a Viacom-owned show airing one of his YouTube videos without permission. Congress was trying to get ISPs to be copyright cops and introduce the nightmare of copyright to the fashion industry. And the first iPhone was successfully unlocked, leading AT&T to predictably and pointlessly lash out.Fifteen Years AgoThis week in 2002 there were lots of new and emerging things that people were grappling with (though it was not the first freak-out about ultra-violent video games nor would it be the last). There was the realization that becoming suddenly internet famous comes with a cost that not everyone enjoys; there was the attempt to figure out online diploma mills. All those things are pretty pervasive today and no longer new, but here's one that fifteen years later is still an "emerging" trend like it was then: artificial intelligence and its implications. Excitement over AI has crested and dipped for a long time, much like another piece of tech that was in the same post-overhype torpor in 2002 that it appears it might be headed for today: virtual reality.

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