Second Bob Murray post in a day? Second Bob Murray post in a day! It would appear that the whole ACLU amicus brief side show will remain a side show. The federal district court has sent the case back to state court where it originated. We had written about HBO moving the case to federal court and (correctly) predicted that Murray would likely try to have it sent back to state court, but (incorrectly) predicted that it wouldn't work.Just as background: in many cases, defendants want these cases in federal court because of the general belief (and you can debate whether this is accurate or not) that federal court judges are more sophisticated in understanding legal issues than their state court counterparts. This can be a little unfair to state judges (and a little too nice to some federal judges), but the general rule of thumb is if you have a strong case, it's better to be in federal court. But, this case is moving back to state court over lack of "diversity." I'll leave it to lawyers to offer a more complete explanation of diversity, but the short layman's version is that it's basically about whether or not the parties are in different states. If they are, you can move to federal court. If they aren't, you're in state court. As we explained, HBO/John Oliver had tried to argue that Murray's inclusion of various West Virginia companies that he owned was a fraudulent attempt to avoid diversity rules, as those companies weren't really mentioned in Oliver's piece. Murray and Murray Energy are based in Ohio. Oliver and HBO are based in NY.However, here the court finds that it was proper for Murray to include the various West Virginia coal mining companies he owns as plaintiffs.

Here's how the CBP is defending our borders -- even before the Trump Administration's "surge:"

Warner/Chappell's DMCA takedown arm is so damn proactive it can kill YouTube videos containing as little as 0% of its IP. A clip of Star Wars posted to YouTube sans overbearing John Williams soundtrack was targeted by Warner/Chappell, the owner of the rights to John Williams' Star Wars compositions.>Here's Jeremy Hsu of Wired with more details.

Free speech can make for some strange bedfellows at times, and the ACLU certainly has a history of defending the free speech rights of people from across the political spectrum (and out to the extremes). The ACLU's willingness to defend just about anyone's free speech rights sometimes confuses people who incorrectly think that free speech should only be protected for people you agree with. The most famous example of the ACLU's willingness to protect the free speech rights of those that they themselves likely disagree with is the famous case in which it defended the right of the KKK to march in Skokie, Illinois. But the ACLU may have just filed a new case that people can point to -- as they seem to have collected plaintiffs from different extremes of the political spectrum, all suing over the DC Metro's refusal to accept their controversial ads. In this case, the ACLU is representing "I just want to seem so controversial" Milo Yiannopoulos's company Milo Worldwide, as well as PETA (you know who they are) and Carafem (a healthcare organization that helps women get birth control and abortions). Oh, and themselves.The defendant is the Washington Metropolitan Area Transit Authority (WMATA), the organization that runs the Metro. The issue is that all four organizations sought to purchase "controversial" ads for the Metro, and all were rejected. Let's start with the ACLU's own ad, because this one is the most ridiculous of all. The ACLU tried to buy an ad that was just... the First Amendment. Really. No joke.Doesn't seem very controversial, right? Well, according to the ACLU, this ad was rejected for trying to "influence public policy."

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Another day, another SLAPP suit -- but, unfortunately, not much in the way of an anti-SLAPP law to protect against it. As you may have heard recently, Fox News host Eric Bolling was recently suspended by the channel after Yashar Ali reported in the Huffington Post that Bolling had sent "lewd" texts to colleagues at the station, including the ever popular dick pic "unsolicited photo of male genitalia via text message." Earlier this week, Bolling announced that he looked forward to clearing his name and apparently he's decided to do that by... suing the reporter Yashar Ali for $50 million.We don't have the full complaint, but Ali has received a summons, which gives us some information. The notice part reads:

As you likely recall, last week the ACLU of West Virginia asked the federal court handling the very upset coal boss Bob Murray's defamation lawsuit against comedian John Oliver to allow it to file a hilarious amicus brief explaining (among other things) why it was perfectly legal to say "Eat shit, Bob." As we noted at the time, it is a very funny filing, but we weren't sure the court would allow it for a whole variety of reasons. And thus it's no surprise that Murray's lawyers are opposing the motion -- but we didn't expect that their opposition would be quite so ridiculous. There are lots of normal arguments they could make, including no need for an amicus brief at this point, or pointing out that the amicus arguments are likely to be simply duplicative of HBO/John Oliver's arguments, but... Murray's lawyers went a bit further. Apparently, they don't want the ACLU weighing in, because it has an opinion.

So we've noted for a while how despite all the hype surrounding next-gen wireless and gigabit fiber builds like Google Fiber, vast swaths of this country are actually facing less broadband competition than ever before. That's in large part thanks to the nation's phone companies, which have effectively given up on upgrading their lagging DSL networks at any real scale. One net result is millions of customers paying an arm and a leg for sub 6 Mbps DSL service that doesn't even technically meet the FCC's new standard 25 Mbps definition of broadband.And it's not changing anytime soon. Verizon has all but frozen next-gen upgrades as it shifts its focus to gobbling up failed 90s internet brands to help it sling video advertisements at Millennials (poorly, we might add). But smaller telcos like Frontier, CenturyLink and Windstream have similarly been losing broadband customers hand over foot as they flee to faster cable competitors. Even Wall Street, which has historically and myopically disliked putting any money back into broadband networks, has started to take notice, resulting in the nation's telco stocks taking a precipitous dive in recent months:

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

VPNs are important... for some situations. Unfortunately, the message that many have received in hearing about the importance of VPNs is that they somehow "protect your privacy." But that's always been wrong. They just move the privacy questions somewhere else. And sometimes it's a sketchy place. A few months back we discussed this very issue with some security experts on our podcast. All VPNs do is create a secure tunnel from where you are to somewhere else. That's useful if you don't want other people sitting in the Starbucks with you to pick up your unencrypted traffic (or other people in your hotel on the hotel WiFi), but it doesn't solve anything on larger privacy questions. The always excellent SwitfOnSecurity summed it up nicely recently:

The Internet effectively turns everyone into a publisher, able to promulgate their ideas in a way that was not open to most people before. That's great for the democratization of media -- and terrible for governments that want to control the flow of information to citizens. The Australian government is particularly concerned about what its 150,000 public servants might say. It has issued a "guidance" document that "sets out factors for employees to consider in making decisions about whether and what to post". Here's why:

On one hand, the increasing number of independent streaming services is certainly a good thing. This increase in competition is finally starting to apply pressure on incumbent cable TV providers to offer greater programming flexibility and to compete on price, even though many cable and broadcast execs falsely believe they can ignore the threat and do the exact opposite. But as everybody and their mother jumps into the streaming game, we're facing a new threat: the rise of fractured exclusivity silos that make consumers hunt and peck to obtain their favorite programs.Case in point: if you're a fan of a particular program in the modern streaming video age, you first need to check to see if that program or film is available on any of the half-dozen services you may subscribe to, be it Hulu, Netflix, Amazon, CBS All Access, YouTube TV, or any of a myriad of other options. That in and of itself can prove fatiguing on your patience -- and wallet if you're trying to save money over traditional cable. You've then got to see if that content is still actually available, since content licensing results in titles being added and removed in what are often illogical availability windows, adding another layer of confusion.Now, things are poised to become even more complicated in that regard. Wanting to cut out the middleman, many broadcasters (like CBS, FX or AMC) are busy pursuing their own streaming services, pulling their content from existing available services and forcing users to sign up for yet another monthly subscription. For example, if you want to watch CBS's upcoming new Star Trek: Discovery TV show, your only option will be to sign up for CBS's $7 per month All Access service. Don't want or can't afford another service? Your option is to either go without -- or to pirate the program. Guess which option many choose?A more recent case in point: Disney announced this week that the company would be pulling its content from Netflix in order to launch its own streaming video service:

Time and time again, we see that everyone who doesn't work in the field of trust and safety for an internet platform seems to think that it's somehow "easy" to filter out "bad" content and leave up "good" content. It's not. This doesn't mean that platforms shouldn't try to deal with the issue. They have perfectly good business reasons to want to limit people using their systems to abuse and harass and threaten other users. But when you demand that they be legally responsible -- as Germany (and then Russia) recently did -- bad things happen, and quite frequently those bad things happen to the victims of abuse or harassment or threats.We just wrote about Twitter's big failure in suspending Popehat's account temporarily, after he posted a screenshot of a threat he'd received from a lawyer who's been acting like an internet tough guy for a few years now. In that case, the person who reviewed the tweet keyed in on the fact that Ken White had failed to redact the contact information from the guy threatening him -- which at the very least raises the question of whether or not Twitter considers threats of destroying someone's life to be less of an issue than revealing that guy's contact information, which was already publicly available via a variety of sources.But, it's important to note that this is not an isolated case. In just the past few days, we've seen two other major examples of social media platforms banning or punishing the victims of harassment and abuse for posting about it, rather than the perpetrators. The first is the story of Francie Latour, as told in a recent Washington Post article, where she explains how she went on Facebook to vent about a man in a Boston grocery store loudly using the n-word to describe her and her two children, and Facebook's response was to ban her from Facebook.

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So one of AT&T, Comcast and Verizon's favorite bogus claims about net neutrality rules is that such consumer protections will somehow prevent the sick or disabled from getting the essential internet connectivity they need. For example, Verizon once tried to claim that the deaf and disabled would be harmed if large ISPs weren't allowed to create fast or slow lanes, or prioritize emergency traffic over say -- Netflix streams. Comcast recently tried to argue something similar, again implying that the hearing-impaired could be harmed unless ISPs are allowed to prioritize or deprioritize select classes of traffic.But this claim that net neutrality rules somehow prevent ISPs from prioritizing essential medical technologies or other priority traffic has always been bullshit.The FCC's 2015 open internet rules (pdf) are embedded with numerous, significant caveats when it comes to creating fast and slow lanes, and only really single out the creation of fast or slow lanes when it comes to hindering competitors. In fact, the existing rules go to great lengths to differentiate "Broadband Internet Access Service (BIAS),” (your e-mail, Netflix streams and other more ordinary traffic) from “Non-BIAS data services,” which can include everything from priority VoIP traffic to your heart monitor and other Telemedicine systems.The fact that this talking point is complete and utter bullshit (much like the one about how net neutrality kills network investment) doesn't stop it from being circulated repeatedly by the army of politicians, think tankers, consultants, fauxcademics, and lobbyists paid to pee in the net neutrality discourse pool.One of the core perpetrators of this myth is AT&T, which just scored a massive, lucrative $6.5 billion contract to build the nation's first, unified emergency first responder network: aka FirstNet. Speaking about the project at a recent investor event this week, AT&T's John Stephens once again trotted out this bogeyman for proud display, implying that net neutrality rules would somehow threaten first responder network traffic:

So one of AT&T, Comcast and Verizon's favorite bogus claims about net neutrality rules is that such consumer protections will somehow prevent the sick or disabled from getting the essential internet connectivity they need. For example, Verizon once tried to claim that the deaf and disabled would be harmed if large ISPs weren't allowed to create fast or slow lanes, or prioritize emergency traffic over say -- Netflix streams. Comcast recently tried to argue something similar, again implying that the hearing-impaired could be harmed unless ISPs are allowed to prioritize or deprioritize select classes of traffic.But this claim that net neutrality rules somehow prevent ISPs from prioritizing essential medical technologies or other priority traffic has always been bullshit.The FCC's 2015 open internet rules (pdf) are embedded with numerous, significant caveats when it comes to creating fast and slow lanes, and only really single out the creation of fast or slow lanes when it comes to hindering competitors. In fact, the existing rules go to great lengths to differentiate "Broadband Internet Access Service (BIAS),” (your e-mail, Netflix streams and other more ordinary traffic) from “Non-BIAS data services,” which can include everything from priority VoIP traffic to your heart monitor and other Telemedicine systems.The fact that this talking point is complete and utter bullshit (much like the one about how net neutrality kills network investment) doesn't stop it from being circulated repeatedly by the army of politicians, think tankers, consultants, fauxcademics, and lobbyists paid to pee in the net neutrality discourse pool.One of the core perpetrators of this myth is AT&T, which just scored a massive, lucrative $6.5 billion contract to build the nation's first, unified emergency first responder network: aka FirstNet. Speaking about the project at a recent investor event this week, AT&T's John Stephens once again trotted out this bogeyman for proud display, implying that net neutrality rules would somehow threaten first responder network traffic:

As you are likely aware, we are currently facing a First Amendment fight for our life. I've spoken about the chilling effects the lawsuit has been having on our reporting -- but also have noted that we are trying to be inspired by this situation to focus more of our reporting efforts on attacks on free speech online, and to tell the stories of those who they're impacting most. As you may recall, we have already launched the crowdfunding site ISupportJournalism.com to support our ability to continue reporting on these issues, and I'm happy to announce today that we've further partnered with the Freedom of the Press Foundation and a group of other companies and organizations to fund more free speech reporting, which will now be included under a new "free speech" tab on the site. Attacks on free speech have been growing, not shrinking, and we need to shine much more light on these attacks, and we're thrilled to be able to do as much as we can. Our official announcement of the program is here:For nearly two decades, Techdirt has reported extensively on issues related to free speech on the internet. Much of this coverage has been about laws that help to protect free speech, such as anti-SLAPP laws, intermediary liability protections, and fair use, among others. Over time, we’ve seen countless attempts to silence speech and undermine important protections for free speech, even as new technologies and services have risen up to provide more arenas for free speech to thrive. These attacks on free speech — including lawsuits, threats, bullying, and legislative proposals — raise serious concerns about protecting free speech online.In January of this year, the company behind Techdirt, and two of its employees, were sued for $15 million in a lawsuit that seems specifically designed to either shut down the company or to silence reporting on matters of public interest.The lawsuit, along with our reporting on many similar stories, motivated the Techdirt team to double down on our coverage of issues related to free speech on the internet, and the ways that it is being attacked. Going through the process ourselves has given us an even deeper appreciation for the First Amendment and the legal protections provided in states with strong anti-SLAPP laws. Similarly, we are more aware than ever before of the myriad ways in which free speech is under attack — not just directly, but indirectly as well, such as via threats against third parties and platforms to stifle speech.It has also given us greater recognition that many people — even journalists, lawyers and politicians — may not fully understand these issues, what legal protections there are, where those protections are under attack, and where they could be strengthened. Many are also not aware of the massive cost attacks on free speech have, and just how many people they are impacting.This has inspired us to work with the Freedom of the Press Foundation to put this project together, which will enable us to focus even more reporting resources on covering threats to free speech in the US and around the globe, and to tell the stories of the chilling effects created when free speech is attacked. We are thankful that a number of prominent organizations and foundations have also stepped up to sponsor this effort, including Automattic, the Charles Koch Foundation, Craig Newmark's CraigConnects and Union Square Ventures*. Between all supporting organizations, more than $250,000 has been committed so far to further reporting on free speech. We hope you’ll look forward to much more reporting on issues related to free speech online.* Techdirt maintains full editorial control over all content.

It must be repeated over and over: people who discover security flaws and report them are not the enemy. And yet, company after company after company treat security researchers and concerned users like criminals, threatening them with lawsuits and arrests rather than thanking them for bringing the issue to their attention.Kids Pass -- a UK company providing discounts for families attending restaurants, theaters, and amusement parks -- had a problem. Any user could access any other user's personal information just by altering numbers linked to user IDs in the URL. A concerned user told security researcher Troy Hunt about the flaw. (via Boing Boing)

Hey, a bit of good news! For years now we've covered the saga of Personal Audio, the "company" that claimed it held a patent (US Patent 8,112,504) that covered podcasting itself. The actual patent is about delivering news on audio cassettes, but give lawyers enough old patents and they'll twist them to be about anything. The company sent threat letters to a bunch of popular podcasts, and actually sued a few. EFF filed to invalidate the patent back in 2013 and finally succeeded in 2015. But... Personal Audio appealed.But the company won't be getting what it wants, as the Court of Appeals for the Federal Circuit (CAFC) has gotten this one right: it's sided with EFF and said that the patent is invalid.EFF had filed what's known as an Inter Partes Review (IPR) process, pointing out some prior art and arguing "obviousness" as well, and the Patent Office review board had agreed. Personal Audio tried to argue that the Patent Trial and Appeal Board (PTAB) misconstrued some of its claims, but the court notes that they're the freaking patent office, and they can construe claims however they want. Well, that's not quite how it was put, but:

If you represent a tech company, please consider signing our letter to Congress from tech companies about concerns regarding the latest attempt to dismantle Section 230 of the CDA in a manner that will be completely counterproductive to the stated goals of the bill. Sex trafficking is an incredibly serious issue, and we support efforts by law enforcement and various groups to fight it -- but we are greatly concerned that the approach being put forth here will actually be counterproductive to that goal, and create numerous other problems.As we've discussed over the past week, Congress has launched a highly questionable attempt to modify Section 230 of the CDA, ostensibly as an effort to takedown Backpage (ignoring (1) that they already passed another law two years ago targeting Backpage and then never used it (2) that the DOJ is already able to go after Backpage if it broke the law and may be investigating the company as we speak and (3) that Backpage has already shut down its adult section), but which will actually create havoc for basically the entire internet. It will do a variety of damaging things, including opening up every tech platform to frivolous lawsuits from individuals and fishing expeditions from states Attorneys General, if anyone uses any part of a platform in a manner that touches on sex trafficking. We've already discussed how the bill could kill Airbnb, for example.But, really, the worst part of the bill is that it's entirely counterproductive. The tech industry may not be experts in trafficking, but we now have decades of experience dealing with what happens when you blame platforms for the actions of their users -- and the bill here won't help deal with trafficking, but could make a bad problem worse. CDA 230 works by encouraging platforms to moderate their content, by making sure that any attempts to moderate don't make the platform liable for the actions of users. This enables platform companies to freely monitor usage and manage their platforms responsibly. But under the new bill, should it become law, any "knowledge" of trafficking activity using the platform puts the platform itself at risk of violating both civil and criminal law. As such, any monitoring behavior is likely to be used against the platform. This only incentivizes companies to take a total "hands-off" approach to policing their own platform. And this is doubly ridiculous because the tech industry has worked closely with law enforcement over the years to combat trafficking, creating a variety of tech platforms and using big data to help find, target and stop trafficking. But under this bill, participating in those programs very likely will be used against these platforms. And this would be a real tragedy as it could lead to more trafficking, rather than less.And, on top of that, as we saw when Craigslist was targeted in the past and trafficking just moved over to Backpage, the trafficking will continue and will move to platforms less interested in working with law enforcement (perhaps overseas platforms). The end result: (1) doesn't stop trafficking, (2) pushes tech companies not to cooperate for fear of greater liability and (3) creates massive other problems for those tech companies in the way of increased liability and frivolous lawsuits. It's a bad idea on nearly every front.Mike Godwin has summarized the problems of the bill nicely with the following analogy:

If you're a fan of the Reply All podcast, then you're probably still processing the story they told in a recent two-part episode about the insane lengths that host Alex Goldman went to track down a phone scammer. If you haven't heard the story, and you think you've seen all there is to see on the "messing with scammers" front... well, you're in for a surprise. We strongly suggest you listen to the Reply All story first — then listen to our conversation with Alex about the whole saga on this week's episode of the Techdirt Podcast.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.

If you're a fan of the Reply All podcast, then you're probably still processing the story they told in a recent two-part episode about the insane lengths that host Alex Goldman went to track down a phone scammer. If you haven't heard the story, and you think you've seen all there is to see on the "messing with scammers" front... well, you're in for a surprise. We strongly suggest you listen to the Reply All story first — then listen to our conversation with Alex about the whole saga on this week's episode of the Techdirt Podcast.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.

Months after he left office to become Trump's running mate, former Indiana governor Mike Pence is finally releasing emails from his personal AOL accounts. This sort of thing would normally be reserved for only the wonkiest of public records wonks, but the Trump campaign spent a great deal of time deriding Hillary Clinton for using a personal email account to handle official State Department email.It's slightly more of a big deal, thanks to Pence's efforts to keep these emails from becoming public. He went to court late last year to protect the content of certain emails from being released. Pence's lawyer actually argued the court had no business telling the governor's office what can and can't be redacted. So much for the idea of checks and balances.As the result of multiple requests and multiple lawsuits, Pence is now releasing most of what [his lawyer says] is contained in his AOL accounts.

At this point, more than sixteen million comments have been filed in response to the FCC's myopic plan to kill net neutrality protections, the majority of them in fierce opposition to the idea. We've also noted how more than 900 startups, countless engineers, and a wave of large companies and websites have similarly urged Ajit Pai to stop, pause, and actually listen to what the majority of the country is saying. And what they're saying is that they want Title II and net neutrality protections to remain in place to protect them from giant telecom duopolies with long histories of fiercely-anti-competitive behavior.Unfortunately. there's no indication that the Ajit-Pai lead FCC much cares. Pai's FCC has made every effort to comically try to downplay this massive wave of opposition, and dress up the agency's blatant giant gift to Comcast, AT&T and Verizon as an ingenious attempt to somehow restore "freedom" to the internet (yeah, big fucking citation needed).Hoping to perhaps pressure Pai further, 11 Representatives and 21 Senators last week sent a formal comment to the FCC (pdf) insisting that the agency's plan to gut net neutrality protections not only ignores the public interest, but the law as well:

At this point, more than sixteen million comments have been filed in response to the FCC's myopic plan to kill net neutrality protections, the majority of them in fierce opposition to the idea. We've also noted how more than 900 startups, countless engineers, and a wave of large companies and websites have similarly urged Ajit Pai to stop, pause, and actually listen to what the majority of the country is saying. And what they're saying is that they want Title II and net neutrality protections to remain in place to protect them from giant telecom duopolies with long histories of fiercely-anti-competitive behavior.Unfortunately. there's no indication that the Ajit-Pai lead FCC much cares. Pai's FCC has made every effort to comically try to downplay this massive wave of opposition, and dress up the agency's blatant giant gift to Comcast, AT&T and Verizon as an ingenious attempt to somehow restore "freedom" to the internet (yeah, big fucking citation needed).Hoping to perhaps pressure Pai further, 11 Representatives and 21 Senators last week sent a formal comment to the FCC (pdf) insisting that the agency's plan to gut net neutrality protections not only ignores the public interest, but the law as well:

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For years, we've expressed general bewilderment at the practice in British Commonwealth countries to effectively allow private search warrants, which are given to non-government private parties, engaged in civil infringement cases, to effectively break down other people's doors and dig through their stuff. We've discussed such "Anton Piller" orders in Australia and the UK. And, apparently they apply in Canada too.And that leads us to the craziest damn story you'll ever read about a bunch of private companies losing their freaking minds over something they believe is infringing. In this case, it's the site TVAddons, which is a site that links to various Kodi software add-ons. Kodi, if you're unaware, is open source home theater software (it was originally the Xbox Media Center, XBMC, but has expanded since then). It's quite popular and an easy way to use a device with Kodi to turn your TV into a smart TV. There are tons of perfectly legitimate and non-infringing uses for Kodi, and a variety of sources of "Kodi boxes" that allow people to make use of the features and to install a variety of useful apps -- such as adding YouTube or Netflix to your TV. Admittedly, there are some add-ons that allow users to access infringing content, though even those add-ons are just really linking to content stored openly and available online.Still, in the last few years, the entertainment industry has completely lost its shit about Kodi boxes and the ability to use them to infringe. And more than a few sites involved in the space have been targeted. Recently, Dish Network sued TVAddons, a site that aggregates a bunch of Kodi add-ons. However, around the same time, it appears that up in Canada, all the big TV providers went absolutely insane. Bell Canada, TVA, Videotron and Rogers all not only sued TVAddons, but got an Anton Piller order allowing those companies (not police) to raid the home of the guy behind TVAddons, Adam Lackman. For fairly obvious reasons, the process of getting an Anton Piller order is one-sided. There is no adversarial process, because the other side isn't alerted beforehand that someone's trying to get an order allowing them to conduct a surprise raid to grab evidence.The story of what happened next, first chronicled by Torrentfreak and the CBC is absolutely astounding.And while a court eventually realized that these companies massively abused the Anton Piller process to effectively interrogate, intimidate, and hold Lackman hostage without legal representation, it came way too late -- and after they'd walked off with a bunch of his stuff, including his domains and his social media and email accounts and passwords. The story is shocking in its overreach. And, let's be clear here: the vast majority of the content on TVAddons is perfectly legal. As the court eventually pointed out, out of 1,500 add-ons, only 22 were found to be infringing. This was not a den of piracy. So keep that in mind as you read what happened. From Torrentfreak:

We've noted for years how cable executives facing market (r)evolution just can't stop making bone-headed decisions. As cord cutting accelerates and ratings take a dive, many cable and broadcast executives have decided the solution is to stuff more ads than ever into every viewing hour, in some instances actually editing down or speeding up programs so the additional ad load will fit. That's of course when they're not busy trying to prevent users from using modern technologies like DVR ad skipping, relentlessly raising cable rates and perpetuating some of the worst customer service in America.Quite often, cable executives try to obscure the sector's dysfunction by pretending to be innovative, and hoping nobody can tell the difference. The latest case in point: FX Networks has struck a new deal with Comcast that lets viewers avoid ads on some FX programs -- if they're willing to pay another $6 per month:

Late last summer, a Louisiana sheriff decided to use a long-dormant, unconstitutional criminal libel law to track down an online critic and search his home. Not that anyone had really been using the law to criminally charge people for libel, but if you don't take a bad law off the books, sooner or later someone's going to abuse it.Sheriff Jerry Larpenter was the abuser. A blogger who had problems with the parish's incestuous relationship with its insurance provider -- a firm that employed Sheriff Larpenter's wife -- was the target. Larpenter apparently tired of the blog's well-investigated criticism and found a judge compliant enough to sign a warrant for him. (The sheriff bypassed the on-duty judge and had it signed by the off-duty judge, suggesting he's engaged in more than one inappropriately-cozy relationship with a government entity.) He went to the blogger's house and seized five phones and two computers, one of which belonged to the blogger's children.The judge who signed the warrant unsurprisingly found the warrant to be valid when challenged by the blogger. A Louisiana appeals court, however, saw things differently. In a unanimous ruling, the three judges declared the warrant to be unconstitutional. The ruling said the criminal defamation law could not possibly apply in this situation, as the target of the alleged libel (Tony Alford -- parish insurance provider and board commissioner) was a public figure.This opened the door for a civil rights lawsuit against the sheriff. In a decision [PDF] handed down late last month, federal judge Lance M. Africk strips Sheriff Larpenter of his qualified immunity. The first sentence makes it clear just how far out of the bounds of constitutionality Sheriff Larpenter has wandered. (via the Volokh Conspiracy)

This week, three of our four winning comments came in response to the ACLU's amicus brief filing in Bob Murray's lawsuit against John Oliver. First up, our winner of most insightful comment of the week is TheResidentSkeptic giving Murray some advice:

Five Years AgoThis week in 2012, it was Olympic time — which also means, time to be frustrated with NBC's exclusive coverage. One journalist who was highly critical of the network ended up getting his Twitter account suspended, then eventually reinstated, with the end result (of course) of a massive Streisand Effect. Meanwhile, a leaked document revealed the unsurprising fact that the IFPI had no plans to share any money it got from The Pirate Bay with musicians, the MPAA was hosting movie screenings to get cozy with congress, and for some reason Homeland Security was getting in on the YouTube takedown game.Ten Years AgoThis week in 2007, as had been the case for many years and still is to this day, e-voting machines were found to have terrible security. That particular report came from California, but was quickly followed up by a similar one from Florida, and then a source-code review that also uncovered numerous vulnerabilities. And yet election officials, as always, defended the machines — perhaps because of so many of the officials used to work at the companies that make them?Fifteen Years AgoThis week in 2002, people were digging deeper into the many horrors of the bill that would make it legal for Hollywood to hack your computer in its crusade against piracy. Not that this was the only bad internet bill being considered — Congress was also looking into making even more stringent anti-circumvention laws than those in the DMCA. The same DMCA that, the very same week, was being used by HP to threaten security researchers who revealed a vulnerability in their software (though they later backed down). Amidst all this, we were glad to see some attempts to wake academics up to the dangers of the DMCA.

Jeff Sessions and the DOJ are back to threatening leakers again. It seems counterproductive, considering each new threat of leak investigations does little to stem the steady flow of leaks. But the new DOJ boss seems ready to go further than his predecessors.Having already expressed an interest in taking care of Obama's unfinished business by going after Wikileaks, Sessions now appears to be headed towards threatening journalism and the First Amendment itself. This would be a new direction for the Justice Department. A 2013 report by the DOJ stated it was unwilling to consider the punishment of journalists during leak investigations, except as a last resort.

For years, the companies that hoover up your internet browsing and other data have proclaimed that you don't really have anything to worry about, because the data collected on you is "anonymized." In other words, because the data collected about you is assigned a random number and not your name, you should be entirely comfortable with everything from your car to your smart toaster hoovering up your daily habits and selling them to the highest bidder. But studies have repeatedly shown that it only takes a few additional contextual clues to flesh out individual identities. So in an era of cellular location, GPS, and even smart electricity data collection, it doesn't take much work to build a pretty reliable profile on who you are and what you've been up to.The latest case in point: German journalist Svea Eckert and data scientist Andreas Dewes recently descended upon Defcon to once again make this point, releasing a new report highlighting how "anonymous" browsing data is anything but. The duo found it relatively trivial to obtain clickstream browsing data from numerous companies simply by posing as a fake marketing company, replete with a website filled with “many nice pictures and some marketing buzzwords." Ironically, some of this data was gleaned from companies that profess to offer you additional layers of privacy, including “safe surfing” tool Web of Trust.It didn't take long before the pair was able to obtain a database containing more than 3 billion URLs from roughly three million German internet users, spread across roughly 9 million different websites. However easy obtaining the "private" and "anonymous" browsing data was, using this data to quickly and easily identify individual users was even easier:

The last time we checked in with 80's rock band Def Leppard, the band was busy "forging" its own songs as a way to release its own back catalog without having its label cash in off of it. So bad was the relationship with Universal Music, apparently, that re-recording all of that music was the better option compared with having to deal with the label. So, one might wonder how the band views illicit music downloads then, amidst its anger at its label for not paying them properly.Well, it turns out that Def Leppard thinks music piracy is making them a killing in concert revenue.

So, yesterday, we wrote a quick post about recently-famous malware research Marcus Hutchins (famous for accidentally stopping the WannaCry attack) being detained by the FBI as he left Defcon. An hour or so later, we updated it with the details of the indictment which had been released. That had my quick response, which noted that the "evidence" didn't seem very strong. It just claims (without anything else) that Hutchins wrote the Kronos malware, and most of the indictment and most of the activity focuses on a second defendant (whose name is redacted) who apparently was out selling the malware. I was planning to write up a more thorough look at the indictment and its problems today, but last night, Orin Kerr beat me to it, and he (famed lawyer, law professor and former assistant US attorney) has a bit more expertise in the subject, so let's work off of his analysis.The crux of the indictment is that Hutchins and the unnamed "co-conspirator" worked together to create and sell malware, leading Kerr to ask the fairly obvious question:

Earlier this week, we wrote about a dangerous bill to punch a giant hole in Section 230 of the CDA. We spent a lot of time in that post detailing how problematic the bill is and how it would actually be counterproductive to the stated goal of stopping human trafficking. But, beyond just being counterproductive to the stated goal, the bill would likely create fairly massive negative consequences for tons of internet companies. If anyone used any part of that company's products and services for trafficking, it would open up companies not just to liability, but to costly legal action, even if they're eventually vindicated.And I wanted to dig into one example: Airbnb. As we've discussed in the past, Airbnb relies heavily on CDA 230, because otherwise, any time anything went wrong with an Airbnb hosted place, Airbnb would face potentially crippling lawsuits. And I'm thinking about Airbnb specifically, because of a recent ruling that Eric Goldman pointed out, in which Airbnb's largest competitor VRBO was saved by CDA 230. You can go over to Eric's blog to read the details, but the really short version is that someone booked a "luxury resort" via VRBO for a ridiculous sum of money, and the rental units never happened. The victims targeted VRBO with the lawsuit, but the court has none of it.

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I recognize that not everyone agrees that the jury verdict against Gawker in the case brought by Hulk Hogan was a disaster for the First Amendment. I disagree. As we explained, even if you dislike Gawker and believe that it was a terrible smut rag that deserved to go out of business, the lawsuit presented a clear blueprint via which the famous and wealthy could attempt to silence any publication -- even those doing legitimate reporting. We, somewhat obviously, are feeling the rather direct effects of that ourselves, given that we're facing a lawsuit filed by the same lawyer who represented Hogan.But, here's yet another example of the chilling effects created by the Hogan verdict directly. You may have heard, recently, about a fairly astounding story, reported by famed music reporter Jim DeRogatis, that the singer R. Kelly was "holding women against their will in a 'cult.'". The story is quite incredible and detailed. It was published in Buzzfeed which, despite its reputation for viral videos and top 10 gif lists, has been publishing some amazing reporting over the past few years.But the story of why it was in Buzzfeed, and how the Hulk Hogan verdict almost kept the story from being revealed at all is important, and highlights the chilling effects of the Hogan verdict, and how it is likely stifling other important stories about the rich and famous from being published. DeRogatis, beyond his many years of excellent reporting about music and the music world, has tangled with R. Kelly before. You may be familiar with some older controversies involving Kelly... and most of those were also broken by DeRogatis, starting way back in 2000, when he broke the story of R. Kelly having sex with teenaged girls. DeRogatis was also deeply involved in the criminal trial of Kelly a decade ago (in which Kelly was eventually found "not guilty.")You can read the details of DeRogatis' latest story at Buzzfeed, but that's not the part that really interests us at Techdirt. Instead, it's the fact that multiple publications wouldn't publish this latest story -- often pointing to the Hulk Hogan verdict as the reason why. DeRogatis discussed the background to the story with Josh Levin at Slate, which includes this tidbit:

You might recall that when John Oliver did his latest piece on net neutrality, the FCC's comment system ground to a halt under the load of viewers pissed to realize that the FCC is trying to kill popular consumer protections protecting them from buffoonery by the likes of Comcast. But the FCC then did something odd: it claimed that a DDOS attack, not HBO's hit show, resulted in the website's issues. A statement issued by the FCC proclaimed that extensive "analysis" by the FCC had led the agency to conclude that it had suffered the attack at roughly the same time Oliver's program had ended:

Surveillance using CCTV cameras is old hat these days, even for locations outside the world's CCTV capital, London. But there's an important step-change taking place in the sector, as operators move from simply observing and recording, to analyzing video feeds automatically using facial recognition software. Techdirt has written about this area a few times, but these examples have all been fairly small-scale and exploratory. News from Georgia -- the one in the Caucasus, not the State -- shows that things are moving fast in this field:

On July 25, 2017, the Patent Office issued a patent to HP on reminder messages. Someone needs to remind the Patent Office to look at the real world before issuing patents.United States Patent No. 9,715,680 (the '680 patent) is titled "Reminder messages." While the patent application does suggest some minor tweaks to standard automated reminders, none of these supposed additions deserve patent protection.Claim 1 of the patent states (comments in brackets):

Twitter has gotten a lot of flack over the years for how it responds to threats and abuse online -- much of it deserved. The company insists that it's gotten much better about this, and now responds much more quickly to inappropriate threats or abuse online. But doing so is often difficult and bound to lead to some really bad decisions. Like one that just happened. Ken White's Popehat account has been temporarily suspended from Twitter. Why? Because he posted a threat he had received from someone else on Twitter to Twitter. Update: after this story started getting some attention, Twitter reversed the suspension and publicly apologized, saying that it was an error.If you're a regular Techdirt reader, I'm sure you're familiar with Ken "Popehat" White, the blogging lawyer who covers a lot of the same stuff we do, mainly in the free speech realm. Ken has also, a few times, represented us in response to silly legal threats we've received. If you're a Twitter user, you may also be aware that Ken is a prolific and masterful user of Twitter often commenting on the news of the day. He also uses Twitter to do some law 'splaining and to call out bullies and trolls. He's pretty good at it. One such recent bully was a Texas lawyer named Jason L. Van Dyke. We actually wrote about Jason a few years ago when he tried to sue the Tor Project, because some revenge porn site used Tor. We didn't hear much about him until a few months ago. It seems that, somehow, Van Dyke was offered a job as an assistant district attorney in Victoria County. For unclear reasons, that job offer was pulled. Van Dyke was not happy. He proceeds to sue the DA for pulling the job offer.In the midst of all this, another Twitter user, Asher Langton -- who has an uncanny ability to sniff out people online who are not exactly what they claim to be -- pointing out that it certainly looked like there were very strong similarities between Van Dyke and someone claiming to be a lawyer trolling for business on the white supremacist site Stormfront. There's a fair amount of back and forth between Langton and Van Dyke and then a direct threat from Van Dyke to knock out Langton's teeth. At one point there was this bizarre drama in which Van Dyke gave Langton 24 hours to promise to stop talking about him or promising to come to Langton and punch out his teeth.24 hours passed and nothing happened.Anyway... around this point, Ken White steps in and writes up quite the post about Jason L. Van Dyke. It's a good, well researched, thorough and detailed post as you might expect. In response, Van Dyke trains his anger on Ken, and starts tweeting shit about Ken and making similar threats to those he made to Langton (though a bunch of those tweets now appear to have been deleted).There were other tweets that certainly appeared to imply potential violence against Ken including a meme involving a bullet, that Van Dyke posted to Ken's Facebook thread about one of his posts:Ken then posts a second story about being sent a truly pathetic "glitterbomb" by someone claiming to be a supporter of Van Dyke's... and then goes on to expose someone who commented about Van Dyke on the earlier post, making Van Dyke out to be some sort of bad ass (or, as Ken puts it "a badass [as] might be imagined by a lonely 14-year-old.") Ken tracks down some evidence suggesting that the comment came from Van Dyke himself or someone working with him (though, very likely Van Dyke himself).Following that post, Van Dyke sent Ken this email:If you can't read that, it says:

House Intelligence Committee chairman Devin Nunes is at it again. After years of unwavering support for NSA surveillance programs -- a one-man booster club operating from inside an oversight committee -- Nunes is now starting to find things he doesn't like about NSA surveillance.It escalated a few months ago when he was "shocked" to learn NSA surveillance grabs communications between world governments and may have been used to listen in on short-lived National Security Advisor Mike Flynn's conversations with Russian officials.Nunes' hypocrisy continued when he demanded answers about surveillance activities under Executive Order 12333 -- again in relation to possible surveillance of public officials he liked and supported. Nunes should already have known most of the answers to these questions. After all, he heads a surveillance oversight committee. But he didn't because he's spent most of his tenure with the oversight committee arguing there should be less oversight of Section 702/Executive Order 12333 surveillance programs.Nunes still won't let it go. He's fired off yet another letter demanding answers about surveillance, this time to new Director of National Intelligence Dan Coats. This time, he's looking to pin surveillance of Trump appointees on the outgoing president -- as if nothing of the sort continues today.

Update: He's been indicted for his alleged role in creating a different malware, Kronos. More below.As you may recall, earlier this year, when the WannaCry ransomware was spreading like wildfire, it was accidentally stopped by a security researcher in the UK who was (mostly) known only by the pseudonym MalwareTech. He wrote about the whole experience after having tweeted about it earlier. Basically he spotted the domain that WannaCry was pinging and saw that it wasn't registered -- so he registered it, if just to track the spread of the malware. But, that process actually stopped WannaCry from spreading due to the way the ransomware was designed. The story of someone accidentally stopping a massive malware breakout was a good one and it was widely covered by the press. MalwareTech got lots of good press out of it... and as a thank you, at least one UK publication doxxed him and revealed his name, his age, some of his social media photos and even what he liked to eat. That wasn't very nice. Still, now it's known that Marcus Hutchens is MalwareTech, and people should be thanking him.Anyway, like many security folks and hackers, MalwareTech made his way to Defcon and Black Hat this year... and got his second big "thank you." According to Motherboard, US authorities have detained him in an undisclosed location.At the time of writing it is not clear what charges, if any, Hutchins may face. According to the now public indictment, Hutchins is accused of developing the Kronos malware that was a trojan that targeted banks. There's a second defendant, whose name and information is redacted (suggesting he hasn't been arrested just yet...) who then went out and appears to have promoted Kronos and tried to sell it.So the specific charge includes:

A South Carolina psychiatrist in engaged in what might be one of the all-time great windmill tilts. It's a libel lawsuit predicated on a single one-star review -- a review that contains nothing else but the solitary star.

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A Seattle man has found a surefire way to clean up negative search engine results: get arrested for threatening (and apparently executing) a denial-of-service attack against a legal web site for refusing to take down an unflattering link.

It's stunning how often trademarks that never should have been granted get granted -- leading to all sorts of bad outcomes. One area that sees far too many bad trademarks involves trademarking geographic areas, with the holder of the mark often then trying to lock out local businesses from using the name of the locations in which they reside. If ever there were a trademark type that everyone ought to agree should be rejected, it's one based purely on geography.Entirely too many of these slip through. For example, one Canadian man managed to get a trademark on the name of the county in which he resides, with the stated aim not of using it in commerce, but rather protecting that name's reputation.

It seems as though a Baltimore police officer forgot about one key feature of his bodycam: the fact that it saves the previous 30 seconds of video recorded before the camera is activated. Most bodycams record and dump constantly. The moment it's activated, the 30 seconds preceding the activation become part of the recording.What was apparently inadvertently captured by the camera was the officer planting drugs in a can and hiding them in an alley. All three officers then retreat to the sidewalk outside the alley before heading back in to "discover" the drug stash.If it wasn't for the fortuitous discovery (in the legal sense) of the video, the officer might have gotten away with it.

You write about enough trademark disputes and you come across some real whoppers. And, man, have I seen some doozies. Still, I never stop being suprised by how silly these things can get. Today's example of this revolves around the Chamber of Commerce for Whiting, Indiana sending out trademark threat letters to the Edwardsville Hometown Committee in Pennsylvania over the latter's 'Edwardsville Pierogi Festival.