The ATF's sting operations have already drawn plenty of criticism. Not from law enforcement agencies who partner up with the ATF for easy busts or the DOJ which oversees them, but from almost everyone else, including federal judges. These stings result in government-made criminals who are led by undercover agents towards robbing fake stash houses of nonexistent drugs, cash, and weapons. The fun thing about the nonexistent drugs is it can be whatever amount ATF agents say it is. And that amount of drugs -- that exists nowhere but in the imagination of federal agents -- is used to determine lengths of sentences.Judge Gerald McHugh trimmed back a sentence given a defendant caught in an ATF stash house sting, pointing out the crooked system allows prosecutors to play judge, jury and executioner -- all before the case even lands in court. As the judge notes, he has never run into a sting prosecution where the imaginary drug stash was below the statutory guideline triggering the longest sentences.

One of the topics that generates strong feelings in the online world is adblocking. Many users love it, but many publishers hate it. That's a big problem, because advertising has turned into the main way of funding what appears on the Internet. As adblockers become more common, so the advertising revenue available to pay for creating articles, images, sound and video diminishes. Some want to ban adblockers, but that's hardly a solution: forcing visitors to your site to view ads they hate is not a good way to foster a long-term business relationship. Improving ads seems a better approach, but that's easier said than done, and may come too late now that so many people have installed adblockers.The other obvious solution is to charge people to view online material. There's been a certain reluctance to try that approach, partly because of the misleading slogan "information wants to be free", and partly because historically it hasn't worked in general. But it seems that major online players in China are now starting to roll out the paid-for model, perhaps in part because adblockers are widely used there, as in the West. Here's what the biggest online service, WeChat, with a billion accounts created, and at least 700 million active users, is trying, as reported by technode:

Much of the way the movie industry looks to combat film piracy will seem familiar to readers of this site. It typically involves shakedown threat letters, games of DMCA whac-a-mole, and a paint-by-numbers approach that mostly amounts to film studios shaking their lawyers' fists at the sky. All that produces the status quo, where piracy is still a thing, films still make gobs of money, and regular observers of it all are left scratching our heads wondering how so much noise could be made over it all.But I will give credit where credit is due as Costa Rican film distributor Romaly deserves some style and creativity points for its new anti-piracy tactic.

The rise of drones in both the personal and commercial spheres has happened with stunning speed, and it has created a whole bunch of hard-to-answer regulatory questions. This week we're joined by Notifleet's Siggi Hindrichs to discuss the current state and future of drone regulation by the FAA.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years now, we've highlighted Verizon's tendency to grab all manner of tax breaks and subsidies from a town or city -- in exchange for fiber optic upgrades that are often never delivered. All up and down the eastern seaboard, Verizon was given the keys to the kingdom in franchise and other agreements filled with loopholes that let the telco, time and time again, promise one thing, then deliver another. And because the company enjoys immense lobbying power over regional regulators and state legislatures, Verizon has never really been held accountable for this behavior.New York City has been a particular point of contention. In 2008, former mayor Mike Bloomberg and Verizon signed (behind closed doors) a new franchise agreement promising "100% coverage" of FiOS across the city by 2014. As some local reporters had warned at the time (and were promptly ignored), the city's deal with Verizon contained all manner of loopholes allowing Verizon to wiggle over, under and around its obligations. And wiggle Verizon did; a 2015 city report found huge gaps in deployment coverage -- particularly in many of the less affluent, outer city boroughs.New York City had long promised to sue Verizon over its failures, and this week made good on that promise. A lawsuit filed by the city (pdf) says that Verizon only ultimately reached 2.2 million out of the city's 3.3 million residences with FiOS. The city is seeking a declaration that Verizon is in breach of its deployment obligations, as well as an order to complete the project as promised. The contract required that Verizon "pass" nearby apartments and buildings with fiber. But according to the city, Verizon's definition of "pass" meant "getting the fiber line somewhere close to the building, maybe":

The Constitution -- which has always been malleable when national security interests are in play -- simply no longer applies at our nation's borders. Despite the Supreme Court's finding that cell phone searches require warrants, the DHS and CBP have interpreted this to mean it doesn't apply to searches of devices entering/leaving the country.For the past 15 years, the government has won 9/10 constitutional-violation edge cases if they occurred within 100 miles of our borders -- a no man's land colloquially referred to as the "Constitution-free zone." But the pace of device searches has increased exponentially over the last couple of years. The "border exception" is no longer viewed as an "exception" -- something to be deployed only when customs officers had strong suspicions about a person or their devices. Now, it's the rule, as NBC News reports.

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A quick update in the lawsuit filed against us. Today we filed additional motions for Leigh Beadon, part of the team here, who was also sued. We've filed a motion, on Leigh's behalf, to have the lawsuit thrown out on anti-SLAPP grounds, because this is a strategic lawsuit designed to chill our exercise of First Amendment rights. At the time of our initial filings in the case, Leigh had not yet been served. That happened a few days later, and now we've also filed the motions to dismiss for Leigh as well, and a related memorandum detailing the reasons why he should be dismissed. Please read the filings. Also, just to have them all in one place, we've posted our original filings below as well.As we noted before, this lawsuit is a huge distraction for us, and we appreciate everyone who has stepped up already to help keep us going and to keep publishing through this ordeal. Please check out the site ISupportJournalism.com to let us know you support our reporting on a variety of important issues. Or, check out some of our t-shirts, hoodies and other gear, as we've been refreshing some old favorites and some new designs as well.

Like many bad laws, I'm sure this bill lying on the Utah governor's desk has its heart in the right place. But, like many bad laws, its head is completely up its ass. Eugene Volokh reports there's Yet Another Cyberbullying Bill on the threshold of passage. Like many that have come before it, it's full of constitutional issues and easily-abusable language.

For several years now, the cable and broadband industry has, like so many industries, turned to obnoxious, misleading fees to help pad their already healthy revenues. The fees, usually tacked on below the line post-sale, aren't just a great way to covertly raise rates -- but they allow companies to advertise one rate -- then charge something decidedly different. Despite effectively being false advertising, this practice has long been ignored by regulators. Companies like Comcast and Charter have, however, been repeatedly sued for the practice.Two major fees in the last few years have received the brunt of the attention. One being the "broadcast TV fee." The broadcast TV fee is simply your cable operator taking a part of the cost of programming and burying it below the line to help them falsely advertise a lower rate. Comcast and Charter have both insisted this is simply them being transparent with their customers.Another contentious fee is the "regional sports fee," which functions in just the same way, and as the name implies is just the cost companies pay to broadcast sports content. On its face, this fee was already contentious (given that many cable providers own the local sports broadcaster). But one DirecTV customer actually discovered that you could use a tool on the DirecTV website to determine how much each zip code pays in regards to this fee.What she found is that there appears to be no rhyme or reason for how this fee is assessed. Users just a few feet apart could pay $0, $2.47, $5.83, or $7.29 in regional sports fees -- despite all having access to the same content. The user even broke down this in practice in Arizona via a handy map:The Consumerist then went city by city and found the same thing in Chicago, New York, and multiple cities in California. And in places like Philadelphia, the website found that people paying absolutely nothing in fees are often saddled right next to people paying up to $7.29 more per month: There's no coherent reason for this. It's not because of regional franchise agreements, most of which were demolished when companies like AT&T and Verizon convinced state legislatures to pass state-level agreements when they got into the business a decade ago. Similarly, DirecTV doesn't even offer a regional sports offering in many of the markets with varying rates. What is for certain is that both the broadcast TV fee and these regional sports fees have skyrocketed in very short order. The regional sports fee has jumped from $1 to nearly $10 for some carriers in just the last few years.Hoping to find out why different people pay such dramatically different rates, the website asked DirecTV and got a complete and total non (and frankly false) answer:

The problem with bad laws (well, ONE problem) is they'll need to be enforced at some point. Legislators pass laws out of fear, boredom, or a desire to look busy. They'll pass laws to push personal agendas and closely-held beliefs. They'll pass laws in response to bizarre tragedies so unique they can't be found in expanded actuarial tables or at the behest of favored industry leaders. Every so often, they'll even pass laws citizens are demanding. But far too often, they'll just pass laws because they're legislators and it's right there in the job description.They'll pass laws with zero regard for enshrined rights or their consitutents' civil liberties… like this Tennessee law which almost seems constitutional if no one examines it too closely. (via Adam Steinbaugh)

Last year, 19-year-old UK student Josh Browder released a chatbot called "DoNotPay" that assisted drivers in challenging parking tickets. It was a small program with a huge upside. The bot's legal guidance -- in the form of yes/no questions -- resulted in more than $4 million in tickets being dismissed.Chatbots are no replacement for lawyers, but almost no one seeks legal help when dealing with parking tickets. That's probably why law/traffic enforcement agencies feel comfortable issuing so many bogus ones. DoNotPay not only saved UK residents millions of dollars, it also proved the ticketing system was fundamentally broken. More than 64% of the 250,000 tickets challenged were overturned.Browder was hoping to apply his chatbot AI to other legal issues -- narrowly-focused areas where legal help might be appreciated, but without the chance of severely screwing up someone's life if the chatbot led someone down the wrong path.

Thru, Inc. made a mess of its registered trademark by allowing it to lie dormant. It registered "Thru Dropbox" but made no attempt to challenge Dropbox's application for the term "DROPBOX" in 2009. Instead, it sat back and watched as Dropbox grabbed market share. Five years after it filed its application, the trademark was awarded to Dropbox. Only then did Thru, Inc. act, so to speak. It acted like the horrified victim of Dropbox's motion for declaratory judgment, one that would uncontestably award the "Dropbox" registration solely to the cloud storage service. Thru countersued, claiming infringement. Bad move.During the lawsuit, discovery by Dropbox uncovered Thru Inc.'s master plan. Emails showed company officials actually referred to the "Thru Dropbox" trademark registration as a "lottery ticket" that would pay off as soon as Dropbox went public. As the court pointed out while handing bits and pieces of Thru's thoroughly-chewed ass back to it, referring to a dormant trademark registration as a "lottery ticket" is like counting your yachts before you've purchased them. It demonstrates bad faith -- the sort of thing that generally leads to lawsuit losses and hefty legal fee liability.And here come the financial losses Thru clearly didn't figure into its "lottery ticket" calculations. The presiding judge has awarded more than $2 million in legal fees to Dropbox. From the order [PDF]:

Last month, we wrote about the truly bizarre situation in which no one in the federal government seemed willing to say who was in charge of the US Patent and Trademark Office (USPTO). You see, there had been widespread reports right before the inauguration that the current director, Michelle Lee (who's been really, really good at the job) was being kept on in that role. But, for some reason, the Commerce Department's website listed the role as vacant. And there were a series of other confusing and conflicting signs. But the most bizarre part was that the USPTO and the Commerce Department simply refused to say who was in charge. Which is... weird.Late on Friday, it appears that the Commerce Department responded to two separate FOIA requests simultaneously, from the two sites that had been covering the issue most closely, Patently-O and IP Watchdog, confirming that Lee remains the Director:Dennis Crouch, who runs Patently-O, notes that, while it's bizarre that no one would respond (especially since Lee was retaining the role, not moving into it...), it's time to move on. IP Watchdog, who has long hated Lee for daring to recognize that over patenting and bad patents can be serious problems, is still agitating to get Lee removed. Thankfully, that looks like a long shot. And that's doubly good, since one of the other people gunning for the slot was former chief judge at CAFC (the appeals court that handles patent cases) Randall Rader. Rader, who resigned over an ethics scandal, was a key component in making the patent system worse during his time on the court. So, for now, at least, a bullet has been dodged.Still, it's quite bizarre that this whole thing happened in the first place. What was so hard about having the USPTO or Commerce Department just admit that Michelle Lee was still the director?

What's a few typos between you and a friend a few cops? Nothing, really. The lives they ruin will not be their own.UK resident Nigel Lang lost more than two years of his life to a typo. He was never jailed, but the life he lived was bereft of freedom. Thanks to the addition of a single wrong digit, Lang's house was raided, his electronics seized, and his life's goals rerouted.

For years we've pointed out that UK libel law, in particular, was horrible and easily abused to chill speech. Things appear to have gotten somewhat better -- as some really bad cases at least made people realize that some of the more extreme issues needed to be fixed, but on the whole, UK libel law is still incredibly broad, and can and does stifle speech (and, yes, I know, the UK doesn't have the same free speech protections as the US does -- but it should). This latest case is just a good example of why the UK's standards for libel are so problematic.The story involves two columnist/writers in the UK who got into a bit of a Twitter spat. Part of the problem, here, is that a lot of people have very strong emotional opinions about at least one of the parties in the lawsuit. Katie Hopkins has made a name for herself saying outrageous things and has been referred to, multiple times, as a professional troll. There are lots of people who dislike her, and certainly are quite happy to see that she's come out the big loser in this libel dispute. But before you celebrate, the details here are important, and quite worrisome, if you support freedom of expression.I recommend reading the full ruling by the UK High Court, which makes it pretty clear that this was just a fairly quick and silly Twitter spat -- not unlike one that many, many people (perhaps, including, some of you reading this right now...) get involved in each day. The background is that another columnist, Laurie Penny, had tweeted something more or less saying she was okay with some graffiti on a WWII memorial in London. Hopkins got angry at Penny's tweets and there were some angry tweets about Penny. That got some press attention for reasons I don't fully understand. A week or so later, Hopkins starts tweeting angrily at a different columnist, Jack Monroe, sort of referencing back to Penny's tweets about the memorial vandalism. And, as the court ruling notes, the following happened:

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Fortunately for law enforcement officers (but not so much for lowly citizens), courts have routinely affirmed that officers don't need to know the laws they're enforcing to stay in the law enforcement business. No one expects cops to be legal scholars, but the least they could do is get a second opinion when they're faced with a situation where applicable laws may -- or just as frequently, may not -- exist.We've seen nonexistent laws abused before. Most of the time, a perceived moving violation acts as the groundwork for a fishing expedition. This is fine, sayeth the courts. Other times, nonexistent laws are cited to shut down photographers or harass people otherwise minding their own business.Texas law enforcement officers are notorious for this. They frequently -- and possibly willfully in some cases -- misread the state's failure to identify statute as meaning they're allowed to demand identification from anyone at any time. They could not possibly be more wrong.The perfect storm of law enforcement beclownery occurs when they interact with someone who actually knows the law. The bluffing commences in a real-time display of "our word against yours," with officers assisting each other in collective ignorance because, if might makes right, then a united citation of nonexistent statutes by armed men is the rightest thing of all.Too bad these officers pulled over a defense lawyer. In the officers' defense, they couldn't have possibly known this fact ahead of time. (h/t Adam Steinbaugh)

What is it about Senators and their awful internet analogies around net neutrality? It's been just over a decade since the late Senator Ted Stevens gave his infamous "series of tubes" analogy in which he tried to explain the internet and net neutrality. Remember?

Back in September last year, Mike wrote about the remarkable court ruling in India that copyright is not inevitable, divine or a natural right. As we have been reporting since 2013, the case in question was brought by three big Western publishers against Delhi University and a photocopy shop over "course packs" -- bound collections of photocopied extracts from books and journals that are sold more cheaply than the sources. Although the High Court of Delhi ruled that photocopying textbooks in this way is fair use, that was not necessarily the end of the story: the publishers might have appealed to India's Supreme Court. But as the Spicy IP site reports, they didn't:

This week, up here in Canada we were pleased to see our government take a stand against the USTR's Special 301 hearing, although it's a shame they didn't do that before passing new draconian copyright laws. Still, it's a step in the right direction, and That One Guy racked up the most votes on the insightful side with some kudos and hope for the future:

Copying Is Not Theft and Home Cooking Is Killing Restaurants are back »Last week we brought back two of our 2016 T-shirt designs, and today we've got another two favorites returning to the Techdirt Gear store on Teespring: Copying Is Not Theft (a conversation starter, to say the least...) and Home Cooking Is Killing Restaurants.In addition to our usual offerings (tees, hoodies, mugs and stickers) we've added a bunch of additional options for Copying Is Not Theft gear, at the expense of color choices (necessitated by the design). There are tank tops, long-sleeve tees, crew neck sweaters and a second option for women's tees. Also, in addition to our usual $23 premium men's tees, you have the option of a cheaper Hanes tagless tee for only $20. We don't know if this is something people prefer, and we're not sure how big the quality difference is (the premium tees are very nice) -- but if lots of people opt for the cheaper t-shirt and are satisfied with the quality, we'll consider making this available for more shirts in the future. Vote with your wallet and by letting us know in the comments or on Twitter!Check out the Techdirt Gear store for these returning designs, and more »

For a while now, Techdirt has been writing about the decision by some sites to stop allowing readers to make comments on articles. We've pointed out that's pretty regrettable, especially when it's couched in insulting terms of "valuing conversations" or building "better relationships." Dropping comments is a lazy response to a real and challenging problem: how to encourage readers to engage in meaningful ways.As well as a natural tendency for people to write hurtful or insultings things that they probably wouldn't say to each other face-to-face, there's another problem: the rise of Internet troll factories whose entire purpose is to flood sites with propaganda in the form of comments that espouse a particular viewpoint. As we noted recently, Google is looking to use machine learning technology to help identify and then deal with toxic comments:

Thanks to a laundry list of lazy companies, everything from your Barbie doll to your tea kettle is now hackable. Worse, these devices are now being quickly incorporated into some of the largest botnets ever built, resulting in some of the most devastating DDoS attacks the internet has ever seen. In short: thanks to "internet of things" companies that prioritized profits over consumer privacy and the safety of the internet, we're now facing a security and privacy dumpster fire that many experts believe will, sooner or later, result in mass human fatalities.Hoping to, you know, help prevent that, the folks at Consumer Reports this week unveiled a new open source digital consumer-protection standard that safeguards consumers’ security and privacy in the internet-of-broken things era. According to the non-profit's explanation of the new standard, it's working with privacy software firm Disconnect, non-profit privacy research firm Ranking Digital Rights (RDR), and nonprofit software security-testing organization Cyber Independent Testing Lab (CITL) on the new effort, which it acknowledges is early and requires public and expert assistance.As it stands, most of the proposals are common sense and take aim at most of the common issues in the IOT space. For example, encouraging companies to spend a few minutes engaged in "penetration testing" of their products before shipping (a novel idea!). The standard also hopes to ensure companies notify consumers of what's being collected and who it's being shared with, and that devices aren't using default login credentials. But Consumer Reports also notes that it hopes to develop these standards with an eye on more broadly incorporating them into product reviews:

Taser, the company, gets a lot of cop love because of its titular product, which is deployed (too) frequently to subdue arrestees. It probably doesn't get as much love for its body cameras, especially since it's already wired one line to sync footage with Taser deployment.Its cameras are going to get even less love now. Taser's latest product looks to ensure no shooting goes unrecorded.

Back in 2014, much was made about piracy in Australia, specifically whether Aussies using VPN services to get the American flavor of Netflix should be more heavily combatted and how release windows for movies in Australia were pushing the public to pirate the film instead of waiting for it. While much of the conversation about Netflix was unfortunate, we did see some positive signs about release windows coming from distributors in Australia. One distributor, Village Roadshow, even had its CEO admit how badly a delayed-release window had boned them when it came to the wildly popular The Lego Movie.

Techdirt has just written about how a report from the European Parliament's "rapporteur" -- basically, the subject lead -- on planned reforms to EU copyright law recommends dumping one of the most stupid ideas in the draft proposals, a link or "snippets" tax. Although that's good news, it shouldn't come as a huge surprise. After all, the idea has already been tried in Germany and Spain, and failed dismally both times. The damage that a link tax would cause to the smooth functioning of the Web is so obvious that the only people refusing to acknowledge that fact are the publishers who have been demanding this new "right" as part of their copyright maximalism. But alongside the ridiculous snippets tax, there's another extremely dangerous idea that the European Commission has slipped into its copyright reform. Article 13 of the published draft (pdf) reads as follows:

We all know by now the music industry's mantra that piracy kills artists. Well, not kills kills, but kills their musical careers before they could even really begin, so destructive is the dissemination of free music amongst the public. After all, if the public doesn't pay for every last instance of every last bit of music, how in the world could musical artists ever make a living? This mantra is one that tends to be applied universally to the concept of free music by the industry, with zero in the way of nuanced discussions about potential business models that might work for some, or many, artists.Except that that's silly. It ignores the power of freely disseminated music in helping musicians to be discovered in the first place, where they can then go on and make all kinds of money through what have always been better profit-centers for artists, such as concerts, merchandise and the like. Many artists don't understand this, swallowing the industry's mantra whole. But there are exceptions, such as Ed Sheeran, who began his career sans record label, promoting himself instead.

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The US Trade Representative's annual Special 301 Report repeatedly points out how other countries are "failing" US IP industries by not doing enough to prevent piracy. The "name and shame" approach hasn't done much to curb piracy, although it has generated a few pressure points to leverage during trade negotiations.Countries appear to be tiring of the annual shaming. Michael Geist reports the Canadian government has issued a rebuttal ahead of this year's Special 301 hearing.

Company [allegedly] does bad stuff. Gets busted. Someone points it out online. Company sues commenter for pointing out facts because details are slightly off. That's just how oil company SG Interests rolls apparently.Popehat's Ken White has caught another case -- a First Amendment-rustling libel lawsuit filed in hopes of shutting a critic up. The Popehat Signal hasn't been lit, but the defendant does have a legal fund supporters can contribute to as he goes up against a presumably very well-funded opponent.The comment that started the whole thing actually quotes a DOJ press release, so there's a substantial amount of factual basis for the commenter's allegations -- even if the allegations aren't completely on the nose in terms of the company's settlement with the feds.An article about the Bureau of Land Management's cancellation of oil leases appearing on a local news site drew the attention of Peter Kolbenschlag, an activist and PR strategist. The comment SGI is suing over claims the company was fined for collusion and bid rigging.

Earlier this year, we wrote about growing concerns that President Trump's executive order stripping those who are not US citizens of certain rights under the Privacy Act could have major consequences for transatlantic data flows. Now two leading civil liberties groups -- the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW) -- have sent a joint letter to the EU's Commissioner for Justice, Consumers and Gender Equality, and other leading members of the European Commission and Parliament, urging the EU to re-examine the Privacy Shield agreement, which regulates transatlantic data flows, as well as the US-EU umbrella agreement, a data protection framework for EU-US law enforcement cooperation. The joint letter calls on European politicians to take into account what the ACLU and HRW delicately term "changed circumstances" -- essentially, the arrival of Donald Trump and his new agenda.The first worry concerns the Executive Order that excluded foreigners from privacy protections. The joint letter goes into more detail about why other laws, for example, the Judicial Redress Act, are not an adequate replacement for those protections. The ACLU and HRW also raise another issue: the lack of a functioning Privacy and Civil Liberties Oversight Board (PCLOB). That matters, because the Court of Justice of the European Union (CJEU) said oversight was needed to ensure that EU data receives appropriate privacy and other fundamental rights protections when it is exported to other countries. The joint letter explains why effective US oversight and redress mechanisms are absent:

How much do "Blue Lives" matter? More than non-Blue Lives, apparently, given the national legislative enthusiasm for generating stupid, easily-abused, redundant legislation.Louisiana -- one of the few states where legislators have agreed to extend greater protections to an incredibly-protected group -- has already seen its newly-minted "Blue Lives Matter" law abused by law enforcement. It's been abused so badly that even law enforcement's best friend -- local prosecutors -- has refused to pursue charges under the statute.But most state legislatures have yet to entertain this ridiculous idea to its illogical conclusion. As Julia Craven reports for Huffington Post, fourteen states have floated "Blue Lives Matter" laws -- a total of 32 legislative trial balloons.The good news is most of these have gone nowhere. The data compiled by Craven shows a majority of these have died shortly after introduction -- most likely due to them being both (a) bad laws and (b) redundant. All 50 states already have some sort of sentencing enhancement on the books for perpetrators of violent acts against law enforcement officers. Trying to twist legislation meant to protect underprivileged groups to include some of the most privileged members of our society hasn't found much support beyond police unions and others similarly self-interested.For whatever reason, Mississippi's legislature is the nation's leader in failure and redundancy, as far as "Blue Lives" legislation goes.Any bills that have managed to pass make things worse for anyone who has the misfortune of interacting with police. Existing laws already engage in book-throwing when it comes to violence against police officers. "Blue Lives" laws just add more severity, for no tangible reason.

Probably not the best idea, but it's something some legislators and private companies have been looking to do for years: hack back. Now there's very, very, very nascent federal legislation in the works that would give hacking victims a chance to jab a stick in the hornet's nest or work on their attribution theories or whatever.

Last month, we discussed the stark reversal by the Chinese government in the matter of many trademarks for President Trump's businesses. In that post, we tried to tackle the question of whether China's sudden approval for a "Trump" trademark on construction services was a violation of the emoluments clause. How you answer this question tends to fall along political fault lines, which is unfortunate. Notably, those that did not find a violation by the trademark approval often suggested that this was one trademark that had been in dispute for years, long before Trump began his campaign for the presidency. Is one single trademark being granted to a sitting President that claims to no longer control his business directly really going to amount to a constitutional violation? Many didn't think so.But now the conversation will change drastically, as the Chinese government has given preliminary approval on thirty-eight more trademarks to the Trump business, just in the last few weeks. And these trademark applications were filed during the Trump campaign, mind you.

Following the Shadow Brokers' partial dumping of NSA exploits, a new batch of CIA exploits has hit the web via Wikileaks. Contained inside both sets of leaks was information explaining why encryption isn't much of a problem for the intelligence community. The NSA has put plenty of time and money into breaking encryption, but much of its Tailored Access Operations -- much like the contents of the CIA dump -- involve access efforts that bypass encryption completely by making themselves at home on the targeted hardware/device.Despite these leaks, FBI Director James Comey is still insisting encryption is a problem. In his recent appearance at Boston College's cybersecurity conference, Comey had this to say:

There has been a great deal of conversation recently about the news media and its ability to do both its job and rebuild trust amongst the public. Trust is the key word there, as that's really all a news organization has to sell its readers. If there is no trust, deserved or otherwise, then the news has no product to sell the public.With that in mind, I can't even begin to imagine why several Gothamist websites began purging stories about the Ricketts family after, or just before, the Ricketts-owned DNAinfo organization acquired it.

Last summer, Mike reported the EU Commission was about to institute a "link tax" on news snippets. In essence, the tax would have punished search engines for sending traffic TO news sites. Not only is that part of it a stupid, backwards idea, but previous attempts by European countries to institute link/Google taxes were abject failures, resulting in Google refusing to list taxed news articles in its search results.Readers were invited to comment on the proposed tax. It's not clear whether those comments were heard above the overly-confident dull roar of industry lobbyists, but whatever the turning point was, the link tax idea is dead. What's being offered to publishers is something completely different: an opportunity to sue Google, et al for supposed infringement.

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Journalist Jason Leopold (currently in residence at Buzzfeed) has been given the nickname "FOIA terrorist" for his numerous requests and almost as numerous FOIA lawsuits. The government has taken notice of Leopold's activity. The Pentagon once offered Leopold a stack of documents in exchange for him leaving it alone. (He declined.) The FBI played keepaway with James Comey talking points, telling Leopold they were all exempt from disclosure. This obviously wasn't true, as these same talking points had been handed over to Mike Masnick by the agency months prior to the bogus denial it gave Leopold.Now, it's the NSA using Leopold's "FOIA terrorist" nickname against him. (This is weird because federal employees gave Leopold the "terrorist" nickname. He didn't come up with it himself.) In Leopold's ongoing FOIA lawsuit against the agency, the NSA has asked for an "Open America" stay. What this would do is push Leopold's request back in line with the others the NSA has received. The agency argues that Leopold's decision to file a lawsuit over the agency's lack of a timely response shouldn't give his request precedence over FOIA requests that arrived before his did.The agency points out its FOIA workload has increased significantly since "a former NSA contractor began a series of unprecedented, unauthorized, and unlawful disclosures" in 2013. The agency still processes thousands of FOIA requests a year, but it's unable to keep up with the increase in FOIA traffic.What the NSA wants is more time. Three of Leopold's requests -- two of them dating back to 2014 -- are at the center of this lawsuit. The NSA wants to prevent Leopold's lawsuit from letting him jump the queue. From the filing [PDF]:

For years, we've noted how many cable and broadcast executives have decided that their best reaction to the growing threat of cord cutting is to bury their head in the sand and pretend it isn't happening. Some industry executives like to insist that cord cutting remains an unimportant trend that will magically disappear once more Millennials begin procreating. Others -- often with help from the press -- like to insist the idea of cord cutting is some kind of myth perpetrated by mean bloggers, just to ruin everybody's good time.As a result, too many in the cable and broadcast industry have decided that the best response to a changing TV marketplace is more of the same: more rate hikes, more advertisements, more tone deafness, and more denial.You may be shocked to realize that this isn't working. In fact, MoffettNathanson analyst Craig Moffett, the telecom industry's top media quote machine, pointed out this week that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record thus far:

A couple of years ago, the MPAA was freaking out about a piece of free software called Popcorn Time. Even though it was hugely popular as a result of its ease of use -- and access to large numbers of infringing copies of films -- it had a serious weakness. Since Popcorn Time was basically a BitTorrent client with an integrated media player, it was often possible to track down people who were using it. That fact, and the increasingly heavy-handed legal action taken against some sites that only had a vague connection with the Popcorn Time software, led to people moving on to more discreet alternatives that are based on direct streaming. One of the most popular today is Kodi, which describes itself as a "software media center for playing videos, music, pictures, games, and more." Like Popcorn time, it is also open source, but it does not include a BitTorrent client. Instead, as its website says:

For as long as I've spent time screaming about trademark issues in the alcohol industry in these here pages, I've repeatedly made the point that trademark laws the world over should be more nuanced when it comes to defining competitive marketplaces. The alcohol industries are perfect examples of this, with a fairly discerning customer base that is quite capable of knowing the difference between a beer and a single-malt whisky, or a bottle of wine, or the horror upon humanity that is sangria. But too many governing IP offices and courts take the lazy route of lumping these micro-markets into a macro-market for the purposes of claiming competition in trademark disputes.But the courts don't always get this question wrong. Some, in fact, do bother to take the time to weigh the sophistication of the likely buyers of products within a marketplace when rendering a decision on a trademark dispute. And that seems to have been at least in part at play in a recent decision to allow a trademark to proceed for a whisky brand despite the objection raised by a beer brewer.

This might be laziness. Or ineptness. Or just another indicator of how much citizens' rights mean to their public servants. Whatever it is, it's definitely not good policing. A drug bust that fortuitously rolled into the lap of the Colorado Springs Police Department has now rolled back out of it, thanks to a Colorado federal court. (via Brad Heath)Here's the story. The PD suspected someone known as "S.B." to be engaged in drug trafficking. S.B. owned a white BMW that was apparently used during drug deals. Detectives obtained a warrant to place a GPS locator on the car and track its location for 60 days.Three weeks after the tracking device was placed on the vehicle, detectives noticed the car's rims had been removed and a "For Sale" sign placed in its window. A couple of weeks after that, the car's location data shifted dramatically. It was no longer spending a great deal of time parked in S.B.'s driveway. It was spending a majority of its time at a new address -- one with no association to S.B. and the location data previously obtained.Colorado Springs detective Michael Gannett obviously felt the vehicle was in the possession of a new owner. His report noted the new location data and his efforts to verify if a change of ownership had taken place. Plainclothes detectives walked past the vehicle at its new address. They saw some drug trafficking activity being performed by the driver, but were unable to determine whether it was the person they had under investigation or someone else entirely.Rather than get this all sorted out, the PD chose to leave the GPS on the vehicle and continue tracking its location. This warrantless deployment resulted in someone else being arrested on drug charges -- not the person the PD was originally looking for.This person, Charles Wood, challenged the evidence obtained from the illicit tracking. The court agrees [PDF] with Wood's Fourth Amendment assertions.

This might be laziness. Or ineptness. Or just another indicator of how much citizens' rights mean to their public servants. Whatever it is, it's definitely not good policing. A drug bust that fortuitously rolled into the lap of the Colorado Springs Police Department has now rolled back out of it, thanks to a Colorado federal court. (via Brad Heath)Here's the story. The PD suspected someone known as "S.B." to be engaged in drug trafficking. S.B. owned a white BMW that was apparently used during drug deals. Detectives obtained a warrant to place a GPS locator on the car and track its location for 60 days.Three weeks after the tracking device was placed on the vehicle, detectives noticed the car's rims had been removed and a "For Sale" sign placed in its window. A couple of weeks after that, the car's location data shifted dramatically. It was no longer spending a great deal of time parked in S.B.'s driveway. It was spending a majority of its time at a new address -- one with no association to S.B. and the location data previously obtained.Colorado Springs detective Michael Gannett obviously felt the vehicle was in the possession of a new owner. His report noted the new location data and his efforts to verify if a change of ownership had taken place. Plainclothes detectives walked past the vehicle at its new address. They saw some drug trafficking activity being performed by the driver, but were unable to determine whether it was the person they had under investigation or someone else entirely.Rather than get this all sorted out, the PD chose to leave the GPS on the vehicle and continue tracking its location. This warrantless deployment resulted in someone else being arrested on drug charges -- not the person the PD was originally looking for.This person, Charles Wood, challenged the evidence obtained from the illicit tracking. The court agrees [PDF] with Wood's Fourth Amendment assertions.

Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):

So if you've spent any amount of time around here, you probably already know that the security and privacy standards surrounding the internet of (broken) things sit somewhere between high comedy and dogshit. Whether it's your refrigerator leaking your gmail credentials or your children's toys leaking kids' conversations, putting a microphone and camera on everything that isn't nailed down -- then connecting those devices to the internet without thinking about security and privacy -- hasn't been quite the revolution we were promised.Obviously for the NSA and CIA, the internet of broken things is a field day, and the fact that the intelligence community would exploit this paper-mache grade security should surprise nobody. In fact, James Clapper made it abundantly clear last year that the internet of not-so-smart things was a massive target for surveillance:

Welp, it looks like the quite long history of Perfect 10 filing frivolous copyright lawsuits and losing (while setting useful precedent) has finally come to a close. A court has now put Perfect 10's assets into receivership to be sold off.We've written a ton about Perfect 10 over the years. As we've noted, while the company officially styled itself as a porn magazine company, it was an early form of copyright troll, focusing on suing basically every large company imaginable for being somehow kinda partially related to any of Perfect 10's pictures showing up online. As such, Perfect 10 was astoundingly useful in setting some really fantastic and useful precedents concerning intermediary liability protections, and making sure that third parties and platforms weren't held liable for copyright infringement. The key, frequently cited, cases include:

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The Wrap, a Hollywood-focused online publication, has a somewhat bizarre article by First Amendment/entertainment lawyer Susan Seager. It's officially about California's anti-SLAPP law (which we've written plenty about) and how it's popped up in a bunch of cases in Hollywood over the past few years, protecting a number of people and companies from having to go through questionable lawsuits based on their speech. This is exactly what the law is supposed to do. But Seager, for some reason, seems to imply that the law should only be used for "small-town citizens" and shouldn't be used by larger players. The article goes through a number of example cases, and then notes: