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Five years ago this week, Americans opened their internet browsers and saw darkness.Google, Wikipedia, Reddit, the Consumer Technology Association (CTA) and other major websites had banded together and gone dark to make a then-obscure piece of legislation infamous. Wikipedia shut down completely for 24 hours and a black band masked the Google logo.These internet giants and other online sites joined millions of Americans in protesting the 2012 Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) legislation in a historic grassroots movement. More than four million people signed Google's online petition linked to the blacked-out homepage. Eight million people looked up how to contact their representative when prompted to by Wikipedia. Tumblr alone produced 87,000 calls to representatives. The vast numbers led most congressional sponsors to rescind their support of the bill.SOPA and PIPA were well intended but ill-advised attempts on the part of Congress to protect the American copyright industry. But the legislation was so broad that it had the potential to harm or eradicate entire websites or online services, instead of specifically targeting individuals who uploaded illegal content.The New York Times called the SOPA/PIPA protests a "coming of age for the tech industry," and at CTA, we were proud to help lead this vital growth. It was a bipartisan and cross industry effort: venture capitalists and law professors, computer scientists and human rights advocates, progressives and tea partiers teamed together to fight the bills. Still, the bills progressed through Congress and appeared to have the momentum necessary to become law.The 2012 CES proved to be one of the turning points. We invited two legislators — Republican Congressman Darrell Issa and Democratic Senator Ron Wyden — to Las Vegas to explain how the bill would jeopardize the freedom of the digital world. Both policymakers made strong, smart and passionate cases, and the press and attendees listened. Within days, the tide had reversed, and members of Congress ceased their support of the harmful bills. Weeks later, SOPA and PIPA were history.We did this because we believe innovation, not an overbroad law, is the best way to grow the economy and fight piracy. History has proved us right. In five years since SOPA/PIPA failed, we've seen many instances of market disruptions and many more cases of technological innovation. Spotify, the now-ubiquitous Swedish streaming service, intentionally developed free streaming as a legal competitor to illegal piracy. It worked: piracy has dropped significantly. In 2013, less than 10 percent of daily web traffic in North America came from peer-to-peer file sharing compared to 31 percent in 2008.Even more exciting, streaming services also led to significant revenue growth for the music industry. The Recording Industry Association of America, one of the major supporters of the SOPA/PIPA legislation, reported an 8.1 percent increase in overall revenues from the first half of 2015 to the first half of 2016. This was due in large part to paid subscriptions to streaming services.Other content industries have experienced massive growth as well. Video streaming programs such as Netflix, Amazon and Hulu continue to thrive. U.S. consumers spent 22 percent more on subscription video streaming services in 2016 than in 2015.The combination of audio and video streaming takes up a whopping 71 percent of evening home entertainment in North America, and this number should only grow in the coming years. Once at odds on the floor of Congress, the innovation of the tech industry and the creativity of the media industries now mutually support and sustain one another's growth.New technologies will lead to the same market disruptions that the internet prompted for the media industry. Will Congress support new technologies or stifle them? And how will legacy industries evolve to thrive in this changing technological landscape?This year at CES 2017 in Las Vegas, innovators from around the globe came to exhibit technology that will change our world as we know it. Augmented and virtual reality technology will profoundly affect the media landscape, creating a more immersive and personalized experience. Drones have already changed the face of the retail industry, with Amazon making its first drone delivery in time for the holiday season. Self-driving cars will revolutionize the auto industry, decrease traffic deaths and bring increased mobility to the elderly and those with disabilities. In dealing with the challenges that will inevitably arise, will Congress choose to preserve old models and technologies, or will it embrace the new and allow American ingenuity to lead?Five years ago, members of Congress sided with progress over fear. The resulting explosion of innovation proved them right. As other new disruptive technologies emerge, we urge policymakers to heed the lessons of SOPA and PIPA and allow new innovations to prosper, thrive and move our society forward.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro

Not only is the use of private email accounts to route around public records requests a common practice, it's also an accepted practice. Politicians aren't going to sell out their own in the name of transparency, so there's likely as many private email accounts handling official business as there are government employees. Everyone from former New York City mayor Michael Bloomberg to Gen. Colin Powell has used private email accounts to handle government communications they'd rather not be made public.The same goes for Chicago mayor Rahm Emanuel. For years, journalists and government transparency groups have been trying (and suing) to get the mayor to turn over city-related emails contained in his personal accounts. To date, the city of Chicago hasn't budged.But we're living in a "new" era of Chicago-brand transparency -- the aftermath of the city's concerted cover-up of police recordings of the Laquan McDonald shooting. The mayor pledged the city would be more open and forthcoming in the future -- not a difficult promise to make considering there was nowhere to go but up.Roughly a year after that announcement, one layer of opacity has been peeled back by the mayor's office. Given that it was prompted by multiple lawsuits and unsympathetic court rulings, it's probably best to hold any applause until something more proactive is witnessed.

A little over a year ago, we wrote about an appeals court ruling saying that the US Patent and Trademark Office (PTO) could not reject a trademark based on the fact that it was "disparaging" towards an individual or group. The case focused around whether or not a Portland band named "The Slants" could trademark its name. The band, which is fronted by an Asian American named Simon Tam, had its trademark rejected by the PTO on the claim that it was disparaging to Asians.As I noted at the time, I had struggled with my own opinion on this question as well -- initially arguing that this shouldn't be a First Amendment issue, because refusing to grant a trademark registration in no way interfered with anyone's freedom of expression. Instead, it did the opposite, and made it clear that anyone could make use of the content without restriction or fear of infringing on someone's registered mark (though, a common law trademark may still be an issue). Over time, and after lots of discussions with lots of people on all sides of this issue, I eventually came down on the other side. The key issue was not whether or not speech was blocked, but rather that there's a law that determines something based on the content of speech, and it's that point that makes it a First Amendment issue.The PTO appealed the appeals court ruling, and it's been pretty fascinating to follow the case over the past year. For some fun, I encourage folks to read some of the amicus briefs filed in the case. Public Citizen's brief (in support of neither party) most closely matches my own views. The brief from the think tank Cato is also a fun read in that it tries to make its point about the vagueness of what's disparaging and what's not in somewhat amusing ways:

Alfred de Zayas, who is the UN's "Independent Expert on the promotion of a democratic and international order" has put out quite a statement in support of President Obama's decision to commute Chelsea Manning's sentence. But de Zayas didn't stop there. He went on to point out that the US government and other governments have been persecuting many other whistleblowers around the world, including Ed Snowden and Julian Assange, and that should stop:

With Trump's telecom advisors and the remaining FCC Commissioners making it abundantly clear that they intend to gut net neutrality rules and dismantle pretty much all of the FCC's consumer watchdog functions, there are more than a few worried companies, startups and consumers concerned that the net neutrality fight is about to get downright stupid. One of Trump's telecom advisors doesn't even think telecom monopolies are real, which should speak volumes about our looming vacation to dysfunction junction.One company that's busy pretending it's not worried is Netflix, which penned a letter to the company's shareholders this week (pdf) insisting that it doesn't expect the death of net neutrality rules to materially impact the company's revenues:

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Most of you recall that Samsung's Galaxy Note 7 suffered a bit of a problem with spontaneously combusting. That led to months of horrible press and an FAA ban on taking the device on airplanes. You might also recall that Samsung exponentially amplified its own PR disaster by then issuing a replacement phone that suffered from the exact same problem. Since then, carriers have been passing on a Samsung update that effectively bricks the device, preventing users from recharging the device. Most users have traded in the device for, you know, something that doesn't explode.

We've written a fair amount about Mississippi Attorney General Jim Hood over the years, with a major focus on his factually-challenged hatred of Google, that may or may not be influenced by Hood's heavy funding from Hollywood. What is known, however, is that the MPAA, quite clearly, decided to use Hood as a pawn in its campaign to attack Google. The Sony Pictures hack from a few years back revealed a detailed plan, put together by the MPAA, to funnel money and resources to Hood solely for the purpose of attacking Google with questionable legal claims. Hood's first attempt to do so (with letters that were literally written by the MPAA's lawyers) effectively failed, following a legal challenge from Google.Hood, of course, is not one to give up, so he's back again with a lawsuit filed against Google, arguing that the company has violated student privacy with its Google Apps for Education. If this sounds vaguely familiar, here's the twist: this is the same basic complaint that the EFF complained about in a filing to the FTC a year and a half ago. The EFF, of course, actively fought Jim Hood in his initial attack on Google, so it's a neat trick by Hood (and, perhaps, the MPAA?) to now use the EFF's own legal arguments against Google.As I stated back when the EFF filed its complaint, even though we frequently agree with the EFF on things (and even though we wish Google was better on privacy), I'm still struggling to see what the privacy violation is here. The key issue is that Google signed a pledge -- the Student Privacy Pledge -- which says that when offering its apps to schools, it will safeguard student's privacy in some very clear ways. Multiple third parties, including the Future of Privacy Forum -- who helped create the very pledge Google is accused of violating -- has looked at Google's G Suite for Education and concluded that it complies with the pledge. There are no ads in the G Suite for Education, which is the main privacy issue. But the EFF's complaint was that by sync'ing student accounts, it's storing information about the students in violation of the pledge. But the sync feature is just to allow students to be able to log in from multiple devices and have the same experience -- and Google insists that none of that information is ever used for advertising or other datamining. If it turns out that's not true, then there are issues. But if Google is being accurate here, I'm just don't see where the problem is.As far as I can tell, the FTC has done nothing with the EFF's complaint. But now it appears that (without naming EFF), Jim Hood has decided to jump in to the legal waters and claim that Google is violating its pledge on student data privacy.It feels like someone in Hood's office (again, perhaps with some nudging from friends at the MPAA) decided that it would be a neat trick to use the EFF's own complaint against Google to go after Google yet again. It most likely will mean that EFF won't oppose Jim Hood as it did last time around. However, taking a step back and looking at the actual complaint, it's difficult to see how it will stick. As stated above, the organizations that created the very pledge in the first place have claimed that EFF is wrong (and are now saying that Hood is wrong), and that Google complies with the pledge itself. This also seems like a weird issue for Hood to focus on for any other reason than because he wants to attack Google. In fact, it's questionable how this is anything but an Attorney General using his position for something of a personal vendetta against a company he dislikes.It will be interesting to see how Google responds to this lawsuit... and how far it can actually go.

So we've noted repeatedly how Verizon really wants to pivot from stodgy, old protectionist telco to Millennial-focused media and advertising juggernaut. The company desperately wants in on Facebook and Google advertising cash, and apparently believes this is possible by ceasing network fiber upgrades and gobbling up failed 90s internet brands like Yahoo and AOL.

You may recall the rather short saga of video game studio Digital Homicide. That studio attempted to find success with a strange formula: sue game reviewers over negative reviews, sue Steam accounts for likewise negative reviews, find its game suddenly delisted from Steam entirely, and then declare itself dead. Not exactly the end that Digital Homicide was hoping for, certainly. One would have hoped that its story would serve as a warning to other game studios. And perhaps to some extent it has, as another game developer, Matan Cohen, ever so slightly altered the formula in probably the worst way possible.It still starts off with abusing the DMCA process to take down negative reviews and threatening the reviewer with legal action, of course. In this case, we once again find Jim Sterling, the same reviewer threatened by Digital Homicide, being the victim of a game developer's abuse. After having first filed a DMCA claim on Sterling's review of the game Art of Stealth, Cohen then allegedly went on a legal threat binge against Sterling.

The Philadelphia Police Department is one of many to be on the receiving end of a consent decree with the DOJ. Most PDs finding themselves in this position earn it through years of abusive policing and a consistent disregard for constitutional rights and civil liberties. The Philly PD is no exception.This department has been trying to make the changes recommended by the Justice Department, but apparently found some of the DOJ's hurdles too high for it to jump… at least willingly. That hasn't stopped police officials from declaring their inability to live up to the DOJ's standards a success, however.

There may be nothing more frustrating than trademarks being granted for terms that serve as simple geographic identifiers. With a couple of recent stories revolving around names of cities, or acronyms of them, it's probably time to consider whether some kind of official reform of trademark rules needs to be undertaken to keep companies from locking up such broad terms for commercial purposes. And there may be at least a slim chance that this conversation is starting, with the high profile example of the newly minted Los Angeles Chargers NFL team serving as notice.It was only this past week that the Chargers finally announced what everyone already knew was going to happen: the team is moving to the city of angels. As is SOP for an organization of its size, the team filed trademark applications for several iterations of its team name, including the term "LA Chargers." And that, almost immediately, is where the problems began to arise.

Chicago attorney Jerry Boyle -- notably not representing himself -- is suing the city of Chicago and a number of police officials for constitutional violations stemming from the PD's Stingray use. It's a potential class action suit, but Boyle -- at least in his own case -- claims to have pinpointed exactly when his phone signal was intercepted by the police. Cyrus Farivar of Ars Technica points out this detail in the lawsuit's claims:

Back in 2015, Techdirt wrote about a government project in China that involves "citizen scores," a rating system that will serve as a measure of a person's political compliance. The authorities aim to do that by drawing on the huge range of personal data that we all generate in our daily use of the Internet. The data would be scooped up from various public and private services and fed into an algorithm to produce an overall citizen score that could be used to reward the obedient and punish the obstreperous. Naively, we might suppose that only authoritarian governments could ever obtain all that highly-revealing information, but an article from supchina.com reveals that is far from the case. It discusses some great journalism from Guangzhou's Southern Metropolis Daily, whose reporters documented their success in buying every kind of personal data about colleagues from "tracking" services advertised online:

Trump's telecom advisors have made it abundantly clear the incoming administration intends to gut net neutrality, roll back most consumer broadband protections, and defund and defang the FCC as a broadband consumer watchdog. While deregulation works in some sectors, history makes it abundantly clear that blindly deregulating the broken telecom market only makes the problem worse. Just ask Michael Powell, the former deregulatory-focused FCC boss turned top cable lobbyist, whose blanket deregulatory tenure at the agency helped forge the "Comcast experience" most modern consumers enjoy today.

It's hardly a surprise that a bunch of people who have been fed a load of bullshit about what Chelsea Manning did years ago are now quite angry over President Obama's decision to commute Manning's sentence. But I don't think any are quite as painstakingly wrong as Senator John McCain. Someone should call up the Guinness World Record folks, because the wrong-per-sentence ratio of McCain's angry statement might just set a new world record. Let's dig in.

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As you may have heard, today is the five-year anniversary of the massive internet blackout that tons of internet users and sites participated in to protest a pair of awful copyright laws, SOPA & PIPA, which would have undermined some of the most basic principles of a free and open internet. In case you've somehow forgotten, go and take a look at the Archive Team's world tour of sites that either went down completely or put up some sort of detailed splash page speaking out against the bills and in favor of internet rights and freedoms. Contrary to what some have tried to claim in rewriting history, that event was a true example of a grassroots uprising against legacy industries and government bureaucracies that wanted to shackle the internet and make it less open, less free and less powerful.

Adam MacLeod, law professor at Faulkner University, was the recipient of a traffic cam speeding ticket. The problem was that he wasn't driving the vehicle when the infraction occurred. So, it was his vehicle being ticketed, but he was being held responsible for someone else's infraction.He decided to fight it, and that fight uncovered just how crooked the traffic cam system is. Not only are traffic camera manufacturers receiving a cut of every ticket issued, but tapping into this new revenue stream has prompted municipalities to undermine the judicial system.MacLeod's detailed report of his fight against city hall is well worth reading in its entirety. But one hint of things to come reveals itself in MacLeod's conversation with the city's attorney when attempting to figure out how one goes about actually challenging a traffic cam ticket.

Despite Trump's criticism of the AT&T Time Warner merger (largely believed to be due to negative CNN coverage), most Wall Street and telecom sector analysts expect the next few years will see an explosion in previously-unthinkable mega-mergers. Sprint is expected to make another bid to acquire T-Mobile after the deal was blocked by regulators back in 2014. Comcast or Charter are expected to make their own bid for T-Mobile if Sprint can't come up with the cash. Other rumored acquisition targets for giant telecom companies include Dish (and its hoarded spectrum) or any number of massive media empires.

As Techdirt wrote last month, there's little prospect of Donald Trump being able to re-negotiate the Trans-Pacific Partnership deal, for reasons to do with the political realities in other countries. That hasn't stopped the true believers from continuing to clutch at straws in the hope that TPP might somehow come back from the dead. For example, here's the view from New Zealand:

Stories about robots and their impressive capabilities are starting to crop up fairly often these days. It's no secret that they will soon be capable of replacing humans for many manual jobs, as they already do in some manufacturing industries. But so far, artificial intelligence (AI) has been viewed as more of a blue-sky area -- fascinating and exciting, but still the realm of research rather than the real world. Although AI certainly raises important questions for the future, not least philosophical and ethical ones, its impact on job security has not been at the forefront of concerns. But a recent decision by a Japanese insurance company to replace several dozen of its employees with an AI system suggests maybe it should be:

Well, here's a surprise. President Obama has just commuted the bulk of Chelsea Manning's sentence, meaning she will be freed this May, rather than having to spend another three decades in jail. Manning, of course, was sent to prison for sharing a large chunk of US diplomatic cables with Wikileaks. Manning was sentenced to 35 years in prison nearly four years ago (with credit for the 3.5 years she'd already been held, often in solitary confinement). Many people were already outraged at the sentence, especially given that there was no evidence of any actual harm from the leaks.

Last year, we got a lot of positive feedback on our episode taking a look at the Consumer Electronics Show with the help of journalist Rob Pegoraro. So this year, we've brought Rob back for another look at the highs and lows of CES.Also: we're getting ready to record our first exclusive patron-only episode for our supporters on Patreon, which means it's time for those who backed us at a level of $5/month or more to submit questions for the Q&A portion. If you're one of those patrons, you can now find a post calling for questions in our Patreon feed and submit yours in the comments. If you're not, but you want to submit a question or just get access to the episode once it's released, now's the time to support the Techdirt Podcast on Patreon.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 the last few years, Microsoft has been under fire because its Windows 10 operating system is unsurprisingly chatty when it comes to communicating with the Redmond mothership. Most of the complaints center around the fact that the OS communicates with Microsoft when core new search services like Cortana have been disabled, or the lack of complete, transparent user control over what the operating system is doing at any given time. Microsoft has since penned numerous blog posts that claim to address consumer concerns on this front -- without actually addressing consumer concerns on this front.

Thomas Fox-Brewster of Forbes is taking a closer look at a decade-plus of in-car surveillance, courtesy of electronics and services manufacturers are installing in as many cars as possible.Following the news that cops are trying to sweat down an Amazon Echo in hopes of hearing murder-related conversations, it's time to revisit the eavesdropping that's gone on for years prior to today's wealth of in-home recording devices.

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No sooner had Germany announced it was looking to start fining Facebook for the publication of "fake news" than we have a lawsuit being filed to take advantage of this brand new breed of criminal violation.Syrian migrant Anas Modamani has announced he will sue Facebook over posts by users depicting him as a supposed participant in multiple terrorist attacks.

The Obama administration has responded to calls to declassify the full CIA Torture Report with a "will this do?" promise to lock up one copy in the presidential archives. While this ensures one copy of the full report will survive the next presidency, it doesn't make it any more likely the public will ever see more than the Executive Summary released in 2014.Other copies may still be scattered around the federal government, many of them in an unread state. The Department of Defense can't even say for sure whether its copy is intact. Meanwhile, an ongoing prosecution in which the defendant is alleging being waterboarded by the CIA has resulted in an order to turn over a copy of the full report to the court.This order would preserve a second full copy -- with this copy being as close as we've gotten so far to seeing it become part of the public record. Of course, the DOJ is challenging this court order on behalf of the Obama administration, which certainly never intended to participate in this much transparency. Charlie Savage of the New York Times notes (on his personal blog) that a motion has been filed seeking to reverse the court's preservation/deposit order.

We've noted a few times how the incoming Trump-led FCC has made it clear that it not only wants to roll back net neutrality and new broadband privacy rules, but also defund and defang the FCC entirely. The majority of Trump telecom advisors believe that the FCC serves absolutely no role as a consumer protection agency, and should be torn down to the studs -- its only function being to help manage wireless spectrum. With the broadband market clearly broken and uncompetitive (exhibit A: Comcast and its hidden fees, usage caps, and historically awful customer service), eliminating most regulatory oversight of the sector would obviously compound most of the existing problems.

Because the Disney corporation is so overprotective of its IP and generally willing to pull the trigger on legal threats/lawsuits, it's always a bit entertaining to see lawsuits filed against it for alleged infringement. But the quality of lawsuits brought against the entertainment giant are very much hit-and-miss. And just because it's the courtroom villain being sued, it doesn't automatically make those bringing the suits the heroes.UK company Alice Looking Ltd. has registered trademarks on the phrase "Alice Through The Looking Glass" covering a wide variety of products, most of them being expensive shirts. What it doesn't have is any claim to "Alice" the character, or anything from the Lewis Carroll original, or really anything else other than those words in that order. (h/t Courthouse News Service)Disney, on the other hand, recently released a film entitled "Alice Through The Looking Glass" -- a live-action take on the Carroll original and yet another rerub of stuff taken from the public domain by a studio that has done its best for the last 70 years to ensure nothing it owns will ever end up in the public's control. Alice Looking Ltd. feels the release of the Disney movie undercuts the US market for high-end goods with its trademarked phrase on them.The lawsuit [PDF] makes plenty of trademark infringement allegations but presents almost nothing as evidence of these claims. The only exhibits attached are Alice Looking's US trademark registrations.The crux of the plaintiff's argument is that Disney could have worked with it in some form of partnership but chose not to. Therefore: infringement.

We've got a double winner this week, with two comments from That One Guy taking first and second place on the insightful side. First up, it's a response to the news of farmers facing 12 years in prison for selling seeds:

Five Years AgoThis week in 2012, plans were coming into place for the SOPA blackout that would happen the following Wednesday. Reddit was the first to announce a site-wide blackout, and the next day they were joined by the Cheezburger network of sites. Then came the announcement that would really shift the tides: Jimmy Wales stated that he was in favor of the blackout, and asked the Wikipedia community to decide.Meanwhile, it was a big week for SOPA/PIPA supporters being caught infringing content themselves. CreativeAmerica appeared to crib much of a pro-SOPA mass email from Public Knowledge's anti-SOPA equivalent, then offered a denial that inadvertently underlined exactly why SOPA was so dangerous. CreativeAmerica also teamed up with the MPAA to place a pro-SOPA opinion piece in the Salt Lake Tribune, which turned out to be a bit of a remix from the text past lobbying efforts. And then SOPA sponsor Lamar Smith himself was discovered to be violating the Creative Commons license of a photo used on his website.Ten Years AgoThis week in 2007, the big news (especially in retrospect) was Tuesday's unveiling of the Apple iPhone after a flurry of rumors and hype. There was a hiccup when it turned out Apple hadn't yet secured the rights to the name, but as we know the ascendance of the device was unstoppable. There was also a weak attempt to use the iPhone as an example of why patents are necessary, which was much less convincing than the new study showing no link between patents and innovation.Fifteen Years AgoThis week in 2002, long before the days of SOPA, the DMCA was still a source of real debate — with attacks on the anti-circumvention provisions still showing promise. Apple was fresh off a somewhat-less-revolutionary announcement of a new iMac, and an early leak debacle showed just how tight a relationship they seemed to have with the press. Satellite radio was showing promise, SMS was failing in the US for reasons that were getting boring to hear about, online pizza delivery was becoming a competitive space, and Taser was working on its first consumer model.One-Hundred And Twenty-Three Years AgoWe've used the example of telephone switchboards many times in talking about how job-destroying innovation can often yield an explosion of unexpected new jobs, and this week we mark a turning point in that piece of history: on January 9th, 1894 the first battery-operated telephone switchboard was installed in Lexington, Massachusetts by the New England Telephone And Telegraph Company.

We have talked about the power of connecting with fans and giving them a reason to buy, along with using public shaming, as tools for combating piracy in its various forms. Tools far better, in fact, than twisting in litigious winds hoping that the construct of law will be sufficient to curb natural human behavior... and finding out that it isn't. What these routes offer content producers is a way to ingratiate themselves with their fans, building a community that not only wants to buy content themselves, but also will decry any attempt to pirate that content by others. Morality is shaped by the herd, in other words, so having the herd on your side finds content producers a powerful ally.But philosophy like that doesn't penetrate industry in and of itself. Perhaps, then, data and academic studies may. The International Journal of Business Environment recently released just such a study suggesting that content providers are far better off reaching out and connecting with fans, including those pirating their works, rather than trying to fight piracy legally.

The Evansville (IN) Police Department has seen a drug bust go up in a cloud of flashbang smoke. A search warrant for drugs and weapons, based on an informant's tip, was executed perfectly… if you're the sort of person who believes it takes a dozen heavily-armed officers, a Lenco Bearcat, and two flashbangs to grab a suspect no one felt like arresting when he was outside alone taking out his trash. (via FourthAmendment.com)The state appeals court decision [PDF] hinges on the deployment of a flashbang grenade into a room containing a toddler. Fortunately, in this case, the toddler was only frightened, rather than severely burned. But it was this tossed flashbang that ultimately undoes the PD's case. The evidence is suppressed and the conviction reversed.Scattered throughout the opinion are some amazing depictions of the PD's SWAT team at work -- and how those officers seem to believe the violence of their entries during warrant service are somehow just the new normal.Things like the following paragraph. First: some background. In some cases, it's (theoretically) more difficult for law enforcement to obtain no-knock warrants. Facts need to be asserted that show that warning the occupants of a residence in any way would most likely result in the destruction of evidence and/or an armed response. Some judges are more willing than others to hand these out, but either way, the standard warrant boilerplate can't be used.So, here's the difference between a "knock and announce" warrant and a no-knock warrant, as deployed by the Evansville PD.

If you've been paying attention, you've probably noticed that the so-called Internet of Things isn't particularly secure. Hardware vendors were so excited to market a universe of new internet-connected devices, they treated things like privacy, security, and end-user control as afterthoughts. As a result, we've now got smart TVs, smart tea kettles, WiFi-connected barbies and all manner of other devices that are not only leaking private customer data, but are being quickly hacked, rolled into botnets, and used in historically unprecedented new, larger DDoS attacks.This isn't a problem exclusive to new companies breaking into the IoT space. Long-standing hardware vendors that have consistently paid lip service to security are fueling the problem. Asus, you'll recall, was dinged by the FTC last year for marketing its routers as incredibly secure, yet shipping them with easily-guessed default username/login credentials and cloud-based functionality that was easily exploitable.The FTC is back again, this time suing D-Link for routers and video cameras that the company claimed were "easy to secure" and delivered "advanced network security," yet were about as secure as a kitten-guarded pillow fort. Like Asus, D-Link's hardware also frequently ships with easily-guessed default login credentials. This frequently allows "hackers" (that term is generous since it takes just a few keystrokes) to peruse an ocean of unsecured cameras via search engines like Shodan, allowing them to spy on families and businesses in real time.According to the FTC, D-Link's hardware also consistently suffers from a number of other vulnerabilities the regulator says the company simply refused to seriously address, including command injection software flaws that let remote attackers take control of consumers' routers via any IP address. D-Link is also accused of mishandling the private key used to sign into D-Link software (said key was openly available on a public website for six months), and of leaving users' login credentials for the mobile D-Link app unsecured in clear, readable text directly on the mobile device.Needless to say, the FTC thinks D-Link should have done a little more to keep its products, and by proxy the internet at large, more secure:

So, this is how we're handling the War on Terror here on the homefront: lawsuit after lawsuit after lawsuit against social media platforms because terrorists also like to tweet and post stuff on Facebook.The same law firm (New York's Berkman Law Office) that brought us last July's lawsuit against Facebook (because terrorist organization Hamas also uses Facebook) is now bringing one against Twitter because ISIS uses Twitter. (h/t Lawfare's Ben Wittes)Behind the law firm are more families of victims of terrorist attacks -- this time those in Brussels and Paris. Once again, any criticism of this lawsuit (and others of its type) is not an attack on those who have lost loved ones to horrific acts of violence perpetrated by terrorist organizations.The criticisms here are the same as they have been in any previous case: the lawsuits are useless and potentially dangerous. They attempt to hold social media platforms accountable for the actions of terrorists. At the heart of every sued company's defense is Section 230 of the CDA, which immunizes them against civil lawsuits predicated on the actions and words of the platform's users.The lawsuits should be doomed to fail, but there's always a chance a judge will construe the plaintiffs' arguments in a way that either circumvents this built-in protection or, worse, issues a precedential ruling carving a hole in these protections.The arguments here are identical to the other lawsuits: Twitter allegedly hasn't done enough to prevent terrorists from using its platform. Therefore, Twitter (somehow) provides material support to terrorists by not shutting down (one of) their means of communication (fast enough).The filing [PDF] is long, containing a rather detailed history of the rise of the Islamic State, a full rundown of the attacks in Brussels and Paris, and numerous examples of social media posts by terrorists. It's rather light on legal arguments, but then it has to be, because the lawsuit works better when it tugs at the heartstrings, rather than addressing the legal issues head on.The lawsuit even takes time to portray Twitter's shutdown of Dataminr's feed to US government surveillance agencies -- as well as its policy of notifying users of government/law enforcement demands for personal information -- as evidence of its negligence, if not outright support, of terrorist groups.The problem with these lawsuits -- even without the Section 230 hurdle -- is that the only way for Twitter, Facebook, etc. to avoid being accused of "material support" for terrorism is to somehow predetermine what is or isn't terrorist-related before it's posted… or even before accounts are created. To do otherwise is to fail. Any content posted can immediately be reposted by supporters and detractors alike.And that's another issue that isn't easily sorted out by platforms with hundreds of millions of users. Posts and tweets are just as often passed on by people who don't agree with content, but arguments made in these lawsuits expect social media platforms to determine what intent is… and take action almost immediately. Any post or account that stays "live" for too long becomes a liability, should courts find in favor of these plaintiffs. It's an impossible standard to meet.These lawsuits ask courts to shoot the medium, rather than the messenger. They make about as much sense as suing cell phone manufacturers because they're not doing enough to prevent terrorists from buying their phones and using them to communicate.

Another one of the FBI's thousands of National Security Letters has been made public -- along with its recipient. Cloudflare's latest transparency report (its seventh to date) contains a bonus: a 2013 NSL [PDF] the FBI felt no longer needed to kept secret.This NSL was received in 2013, and was challenged by Cloudflare and the EFF. It's only now being made public, and that's largely due to litigation and the USA Freedom Act's changes to NSL review policies. Rather than review them every three years-to-never, the FBI must now review them more frequently. Better still, recipients are now allowed to challenge NSL gag orders within one year of receiving them. This places the burden back on the government to prove ongoing secrecy is needed.Shortly before the new year, Cloudflare received a letter from the FBI rescinding the NSL's gag order.

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Our soon-to-be American President has made quite a show about bolstering the country's efforts for cybersecurity. The "cyber", as he is wont to call the issue, is claimed to be in disrepair and requires brave new minds to protect the country's computer systems from hacks and attacks from outside forces. We've already discussed in the past how depressing it is to learn just how little actual computer science knowledge exists floating in the minds of our elected leaders and their top-level appointees. There is an opportunity to get very smart, very well-educated people on matters of cybersecurity involved in government.But it appears that Trump is choosing instead to pass on that opportunity, instead tapping Rudy Giuliani to head up his cybersecurity task force. Giuliani runs a consulting firm that claims to be involved in cybersecurity, of course, except that the extent of its work on the subject appears to be the claims that it does so.

Somewhere behind the lurid imagery of the unverified intelligence report BuzzFeed dropped on the web earlier this week is a possible story about the FISA court deciding, for once, that a government agency has gone too far. My apologies to those who've made New Year's resolutions to eat better: everything about this should be taken with several grains of salt.First, there's the intelligence report itself, which has apparently been circulating for a long time before BuzzFeed stepped up and actually published it. The Guardian reports Mother Jones apparently had seen the document as early as last September. The previously anonymous source of the Trump/Russia intel report has now been outed, but to date, the only thing that has truly been confirmed are biases.The document, however, was considered legitimate enough by John McCain to pass it on to the FBI. It includes -- along with the famous watersports details -- information on alleged contacts with Russia that Trump used to obtain information on political rivals. According to the document, Trump is both reliant on Russian intelligence services for info and a target for blackmail, should it be "needed," thanks to antics on Russian soil detailed in the report's pages.The FBI has refused to comment on the document, other than to confirm that it has seen it. But there's another detail buried in the Guardian's report that suggests -- again, via several anonymous sources -- that the supposed intel report propelled the FBI to the FISA court to ask permission to spy on Trump's associates. This detail was pulled out of the densely-packed Guardian report by Jason Koebler of Vice.Here's the passage from the Guardian article:

Everything is compromised. In the latest case of a hacking company being hacked, Israel's Cellebrite is the latest to have its internal data hauled off by hackers. Joseph Cox of Motherboard was given inside details by the crew that claims to have spirited away login info and other data from the cell phone-cracking company.

Everything is compromised. In the latest case of a hacking company being hacked, Israel's Cellebrite is the latest to have its internal data hauled off by hackers. Joseph Cox of Motherboard was given inside details by the crew that claims to have spirited away login info and other data from the cellphone-cracking company.

The concept of buying up all the newspapers in town to avoid some embarrassing story or picture of oneself is old humor. The concept, featured in sitcoms of yester-yore, relies on a couple of things: newspapers being the single source of a story or photo and for news stories to not travel quickly nor beyond the insular community in which they occurred. Because of that, the joke doesn't really work in a hyperconnected world with digital media.This was a lesson painfully learned by Joseph Talbot of Newark, it seems. Talbot, an otherwise apparently well-respected businessman, was arrested recently for driving while intoxicated. Understandably, he was embarrassed upon learning that news of his arrest had been written up in the local newspaper. His solution was to deploy the sitcom-level chicanery previously discussed.

Many observers, including me, predicted that the 2014 decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Oracle America v. Google would provoke a new wave of litigation concerning copyright and interoperability. In particular, we worried that the decision would encourage dominant vendors to bring copyright claims against competitors that replicated interface specifications for the purpose of interoperating with the dominant vendors’ products. We were right.Sure enough, Oracle America has factored into at least four cases so far. One of these cases settled, one is on appeal, and the other two likely will be appealed in the near future. The latter two cases also involve patent claims, so appeals will be heard by the CAFC. (The CAFC has nearly exclusive appellate jurisdiction over cases with patent claims.) One can assume that the plaintiffs added the patent claims to ensure CAFC jurisdiction.GDC v. Dolby LaboratoriesThis is the case that settled. Dolby Laboratories provides advanced motion picture theatre sound systems. GDC Technology develops software and hardware that interoperates with the Dolby systems. Dolby facilitated this interoperability by making its interface specifications available to GDC. It appears that Dolby stopped providing this information after it acquired Doremi, a media server manufacturer. Evidently, this acquisition made GDC a more direct competitor. Emboldened by the CAFC’s Oracle America decision, Dolby demanded that GDC stop using Dolby interface specifications to interoperate with Dolby products. Furthermore, Dolby insisted that GDC cease telling customers that GDC had the right to use this interfaces information to interoperate with Dolby products.Dolby’s conduct prompted GDC in April 2016 to bring a declaratory judgment action in federal court in California against Dolby Laboratories seeking a declaration that Dolby does not own a copyright in the “protocols and interconnection codes” Dolby developed for digital cinema systems. In the alternative, GDC sought a declaration that fair use permitted it to use the specifications for the purpose of achieving interoperability. The parties settled the dispute in November 2016. According to the joint press release, “as part of the resolution, GDC will dismiss its lawsuit against Dolby, and GDC and Dolby will grant each other licenses that will allow their respective theater management systems to interoperate with the other party’s digital cinema servers.” The other terms of the settlement agreement were not made public.SAS Institute v. World ProgrammingThis case currently is on appeal to the Fourth Circuit, and has the most complex procedural history. The district court ruled that the input and output formats the defendant copied were not protectable under copyright, but found that the defendant breached license restrictions on reverse engineering. A jury subsequently assessed damages of $26 million, which the court then trebled to $79 million under North Carolina’s unfair trade statute.SAS, a company based in North Carolina, creates an integrated suite of business software products known as the SAS System. The SAS System allows users to perform a variety of data access, management, analysis, and presentation tasks. The SAS System can run on various kinds of computers ranging from PCs to mainframes. Users can perform tasks on the SAS System by writing programs in the SAS Language. Additionally, SAS developed a version of the SAS System called SAS Learning Edition to help users learn how to program in the SAS Language.World Programming Limited (“WPL”), a U.K. company, developed World Programming System (“WPS”), which can run SAS Language programs and produce similar outputs. Thus, WPL provides users with a competing platform on which they can run the programs they have written in the SAS Language, thereby avoiding being locked-in to the SAS environment.To develop WPS, WPL reverse engineered copies of the SAS Learning Edition. However, the license under which WPL obtained SAS Learning Edition prohibited reverse engineering of the software. It appears that WPL’s development activities occurred in the U.K., but it distributed its software in the United States.SAS sued WPL in the U.K. in 2009 and in the U.S. in 2010. The U.K. case proceeded more quickly. The U.K. High Court requested guidance from the highest court in the European Union, the Court of Justice of the European Union (“CJEU”), on whether software functionality, programming languages, and data formats were protectable under the EU Software Directive. The CJEU ruled in 2012 that these elements were not protectable. On the basis of this ruling, the U.K. court entered final judgment for WPL in 2013.In April 2014, WPL moved for summary judgment in the U.S. action in North Carolina, arguing that the U.K. judgment had preclusive effect on many issues under theories of comity and collateral estoppel. In other words, WPL argued that SAS couldn’t re-litigate in the United States what it had already lost in Europe.The district court ruled on the summary judgment motion in October 2014. The district court held that it was not bound by the U.K. court’s conclusion that the EU Software Directive rendered unenforceable the SAS Learning Edition license terms restricting reverse engineering. This is because the district court found that North Carolina law differed significantly from EU law on the question of the validity of the contractual provisions prohibiting reverse engineering. Thus, the district court granted summary judgment to SAS on its breach of contract claim.With respect to SAS’s copyright infringement claim, the district court refused to give preclusive effect to the U.K court’s ruling that copyright did not protect the program elements WPL copied on the ground that WPL failed to demonstrate the similarity of U.S. and U.K. law on this issue. This is a questionable ruling. The U.K. court and the CJEU based their decisions on the Software Directive’s articulation of the idea/expression dichotomy. The idea/expression dichotomy is a fundamental principle of copyright law worldwide, including U.S. copyright law. Therefore, there is no reason to conclude that a program element the CJEU considers to be unprotectable under Article 1(2) of the Software Directive also is not protectable under section 102(b) of the U.S. Copyright Act.Despite refusing to grant preclusive effect to the U.K. court’s determination that WPL’s copying did not infringe, the district court ultimately reached the same conclusion based on its own analysis of U.S. copyright law. It was undisputed that WPL had no access to SAS’s source code, and thus WPL did not copy any SAS code, nor the structure, sequence, and organization of that code. Instead, SAS based its copyright claim on WPL’s copying of the SAS System’s input and output formats. The district court rejected the claim, reasoning that SAS in essence was “asking the court to find that defendant’s software infringes its copyright through its processing of elements of the SAS Language….” This meant that “plaintiff seeks to copyright the idea of a program which interprets and compiles the SAS Language….” The court refused to allow such broad protection.SAS resisted the conclusion that WPL did not copy protected expression by arguing that “this case is on all fours” with Oracle America. The court rejected this argument. The court noted that in Oracle America, Google had copied strings of Java code. Here, by contrast, “there is no evidence that defendant has copied specific strings of SAS language, or specific strings of source code for plaintiff’s software, only that its software can function with these SAS Language elements.”A trial was held on damages for WPL’s breach of the SAS Learning Edition license; fraudulent inducement in obtaining the Learning Edition; and violation of North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”). In 2015, the jury found SAS was damaged by WPL’s breach of the license in the amount of $26 million; WPL fraudulently induced SAS to enter into the license agreement; and WPL’s conduct violated the UDTPA. On account of the violation of the UDTPA, the district court trebled the actual damages to a total of $79 million.WPL and SAS cross-appealed. Because SAS did not bring any patent infringement claims, the appeal will be heard by the Fourth Circuit rather than the CAFC. SAS and its amici, Mathworks and the Business Software Alliance, have recently filed briefs. In their briefs, SAS and its amici completely ignore what the copyright aspect of this case is really about: whether copyright enables SAS to lock its users into the SAS System after they have invested millions of dollars writing their own programs in the SAS Language.Synopsys v. ATopTechIn our third case following Oracle America, a jury in California found that the defendant infringed the command set in the plaintiff’s software. Because the case also involves patent claims, the CAFC will hear the appeal of this dispute as well.Both Synopsys and ATopTech develop software for the “place-and-route” function in the design of computer chips, i.e., software that plans the layout of a chip and the electrical connections among its various components. Synopsys also produces “sign-off” or “static timing analysis” software, which checks the timing of the chip design created by the place-and-route software.Synopsys claimed in federal court in California that ATopTech had copied into ATopTech’s place-and-route product, Aprisa, part of the command set from Synopsys’s sign-off product, PrimeTime. Command sets include the names and syntax of commands, options, parameters, variables, objects, and attributes. ATopTech filed a motion for summary judgment that it did not copy protectable expression, but the court in a terse ruling found that Synopsys “raised a triable issue” as to whether the copied elements were expressive. Similarly, the court found there were triable issues relating to ATopTech’s merger and fair use defenses. After trial in March 2016, the jury found that ATopTech infringed Synopsys’s copyright in its command set, and awarded Synopsys $30 million in damages.The court then conducted a bench trial on ATopTech’s equitable estoppel defense. ATopTech argued that Synopsys encouraged its usage of the command set “in order to meet customer demand for improved interoperability between place-and-route and sign-off products when the two types of products are offered by different vendors.” The court denied the defense, finding that there was no evidence that Synopsys had actual or constructive knowledge that ATopTech had copied the command set. The court also rejected ATopTech’s assertion that Synopsys by its conduct misled ATopTech to believe that it would not assert its copyright in its command set.As noted above, Synopsys brought patent infringement claims against ATopTech in addition to its copyright claims. This means that any appeal in this case will also be heard by the CAFC.Cisco v. AristaIn our last post-Oracle America case, a jury in California recently found that the Cisco command line interfaces copied by Arista were not protected by copyright under the scenes a faire doctrine. Because Cisco also brought patent claims against Arista, the CAFC will hear this appeal as well.Arista Networks develops switches and other network products that compete with the market leader, Cisco Systems. In 2014, after the CAFC’s decision in Oracle America, Cisco sued Arista for allegedly copying 500 of Cisco’s command line interface (CLI) commands when developing its EOS network operating system. The CLI is the primary mechanism for network engineers to interact with switches and routers in which Cisco operating systems are installed. The 500 commands consist of two, three, or four words reflecting multi-level textual hierarchies. Before trial, the district court ruled that four “building blocks” of the CLI (the multiword command line expressions, modes and prompts, command responses, and help descriptions) could be protected as a compilation, and left it to the jury to consider whether merger or scenes a faire rendered Arista’s copying noninfringing. The court further ruled that because the individual elements of each of these building blocks were not protectable, the compilations were entitled only to thin protection. Under Ninth Circuit precedent, this meant that infringement could be found only if there was virtually identical copying.At trial, Arista’s lawyers -- who also represented Google in its litigation with Oracle America -- argued that the CLI was an industry standard Cisco encouraged others to use. Arista raised three defenses: merger, scenes a faire, and fair use. In December 2016, the jury rejected the merger and fair use defenses, but agreed that Arista’s use did not infringe under the scenes a faire doctrine. Under the scenes a faire doctrine, courts deny protection to expression that is standard, stock or common to a particular topic or that necessarily follow from a common theme or setting. Granting copyright protection to the necessary incidents of an idea would effectively afford a monopoly to the first programmer to express those ideas.As noted above, any appeals in the case will be heard by the CAFC because Cisco’s complaint also alleged patent infringement (a claim the jury rejected).Of the three cases that did not settle, two will be appealed to the CAFC. Given the random nature of judicial assignments, there is a good chance these appeals will be heard by different panels from that in Oracle America. Hopefully these panels will not feel too constrained by the Oracle America opinion. After all, CAFC panels often disagree with one another in patent cases.(These cases, and the Oracle America decision, are discussed in greater detail in my book Interfaces on Trial 3.0: Oracle America v. Google and Beyond.)Republished from the Disruptive Competition Project

There's nothing quite like watching a professional with twenty years of experience burn it all to the ground in the space of a few hours. Officer Daniel Wolff of the Detroit PD -- spending some time at home recovering from a work-related injury -- took issue with Motor City Muckraker's story highlighting the number of police officers who don't live in the communities they serve.He handled it badly. Here's Muckraker's Steve Neavling's coverage of the Facebook meltdown in which the journalist was personally attacked by the off-duty officer.

During the campaign and after his win, President Elect Donald Trump has been remarkably consistent on his calls for curtailing the rights afforded to the American people and our news organizations by the First Amendment. Between threatening lawsuits over campaign ads, suggesting that political protests ought to be stopped, and mocking free speech in more general terms, the soon-to-be President has positioned himself to be a challenger to long-held freedoms for which very real blood has been shed to protect.But it seems the President Elect is not content to wait to enter office to try to begin this erosion of the First Amendment. Amidst a week of turmoil over the publication of comments about the classified briefing he, amongst others, received detailing intelligence findings about Russian involvement in the previous election cycle, Donald Trump has called upon Congress to investigate how this information was leaked to NBC News.

When the FCC was crafting net neutrality rules, it refused to ban zero rating -- or the practice of giving an ISP's own content an unfair advantage by exempting it from usage caps. At the time we noted how this would open the door to all manner of anti-competitive shenanigans, and that's precisely what happened. Before we knew it, AT&T, Verizon and Comcast were all zero rating their own content while still penalizing streaming competitors, documenting how companies can abuse the lack of broadband competition to impose unnecessary and arbitrary caps -- then use those caps as an anti-competitive weapon.

The NSA can now be used for second-hand domestic surveillance, thanks to new rules approved by President Obama that went into effect on January 3rd. Those unhappy to see Trump in control of these expanded powers have no one to thank but their outgoing president for this parting gift.This was first reported early last year, gathered from anonymous intelligence community sources and the now-useless PCLOB's report on the FBI's use of unminimized intelligence passed on to it by the NSA. At that point, it was mostly speculation, with the PCLOB's report being the only thing in the way of factual information. The administration was confirmed to be working towards loosening restrictions on data sharing, even as the FBI was swearing it was tightening up control of its own use of unminimized data.As the New York Times reports, this change in rules on data-sharing is now in place, as confirmed by a declassified copy of the new procedures [PDF] released to the paper.

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