Techdirt

Here's a fun free speech win from the 4th Circuit Appeals Court. Well, it's at least a fun read, especially when the judges go after the city of Norfolk's highly-questionable claim that its completely inconsistent zoning statute isn't loaded with content-based restrictions.

Earlier today, we wrote about how 20 years ago today, the Communications Decency Act became law (most importantly, Section 230, rather than the rest of it, which was dropped as unconstitutional). Of course, at the time, everyone was mostly focused on the unconstitutional parts trying to outlaw lots of smut online. It was partly that signing (which itself was a part of the larger Telecommunications Reform Act that inspired an apparently fairly drunk John Perry Barlow to pen his now quite famous Declaration of the Independence of Cyberspace -- which is now regularly quoted. A snippet:

When console games are ported to the PC platform, the end result is often merely adequate. Some ports are amazing because the software developer actually knows and cares about the platform their game is being ported to. Others are just quick cash-ins, relying on name recognition to bring in sales the end product hasn't earned.

It seems we've entered the next big moral panic: the fact that terrorists like ISIS use social media. It's a point of contention that keeps coming up, leading Presidential candidates to talk about stopping terrorists from using the internet. There was a whole big "summit" between White House officials and tech execs in which questions were raised about blocking ISIS from using social media. And, then, of course, you've even had some tech company execs support the idea.

With Valentine's Day coming up, we got you covered with the Bouqs Company Farm-Fresh Flowers. For $35, you'll receive a $50 credit to spend on any of their Volcano collection bouquets. These fresh and colorful bouquets come with a Happiness Guarantee and free delivery if you register on Bouq's site. The coupon code will expire May 10, 2016, so you could use it to surprise your mom for Mother's Day too.

As expected, the Telecom Regulatory Authority of India (TRAI) has passed new net neutrality rules (pdf) that specifically ban the practice of zero rating. The rules are relatively clear in that they prevent either content companies or ISPs from striking deals that exempt select content from usage caps. The ruling acknowledges that such models create an unlevel playing field for smaller companies who may not be able to pay to play:

The internet as we know it would be a very, very different place if 20 years ago today, President Clinton hadn't signed the Communications Decency Act. To be fair, nearly all of the CDA was a horrible mess that was actually a terrible idea for the internet. A key part of the bill was about "cleaning up" pornography on the internet. However, to "balance" that out, the bill included Section 230 -- added by two Congressmen in the House of Representatives: Ron Wyden and Chris Cox. They had pushed this clause as a separate bill, the Internet Freedom and Family Empowerment Act, but it didn't get enough traction. It was only when they attached it to the Communications Decency Act (which had passed the Senate without it), that it was able to move forward. And thus, 20 years ago today, when President Clinton signed the CDA, most of the attention was on the "stopping indecency" part, and very little on the "throw in" of Section 230. And yet, there's a strong argument that Section 230 may be one of the most important laws -- perhaps the most important -- passed in the past few decades.

In 2010, Verizon successfully sued to demolish the FCC's original net neutrality rules. In 2015, Verizon joined the rest of the industry in helping launch a barrage of lawsuits to try kill and kill a more legally-sound and updated version of those same rules. While that case continues through the courts, Verizon has made it clear that 2016 will be the year the telco raises a giant middle finger to the FCC and net neutrality supporters alike.

Because citizens are localized but their data isn't, things aren't going to get any less weird as time progresses. Or any less legally troublesome. Ellen Nakashima and Andrea Petersen of the Washington Post have seen a copy of a draft negotiating document between UK and US representatives that would allow MI5 (and presumably other agencies) to access data and communications held on US servers.

This week, we balked at the amount of copyright propaganda crammed into the ESSA education reform act. That One Guy won most insightful comment of the week with his thoughts on what copyright education should actually look like (and will to perceptive students, no matter how it's presented):

Five Years Ago This week in 2011, Egypt was wracked with protests, and the government responded by shutting down the internet. China was trying to stop people from talking about the uprising while Al Jazeera was trying to spread coverage far and wide by putting it under a Creative Commons license. We took a look at the impact of the shutdown, and then later in the week Egypt finally turned it back on. Meanwhile, in a more insidious form of internet shutdown, Homeland Security was going nuts with the domain seizures, even as its affidavits continued to expose how much it was twisting the law and raise major legal questions. The week's big seizure was Spanish website Rojadirecta, which made us wonder if there would be an exodus from US-controlled domains, not to mention how the US would react if Spain started messing with American websites. Senator Wyden was demanding an explanation, and Homeland Security was not doing a good job on that front. Ten Years Ago After the recent announcement that Nikon would no longer sell film cameras, it felt like yet another end of an era this week in 2006 when Western Union announced it would no longer offer telegrams. This was, after all, a brave new era of broadband weather balloons (maybe, someday) and really expensive connected ovens. Perhaps that also explains why companies were so eager to plug the analog hole with terrible technology, though the real reason was probably to squeeze out amateur creators. Also this week in 2006: the RIAA sued yet another person without a computer, we looked at the unusual idea of applying trespass laws to computers, and we started catching on to the role of East Texas in the patent world. Fifteen Years Ago Rumours were flying about the acquisition of Yahoo! this week in 2001, which some thought would herald the end of the internet while others just wondered if Disney would be the buyer. Such rumours would likely make the "most popular stories" lists that news websites were just discovering. Alongside them, you might see stories of eBay hijinks, ranging from the artist who tried to sell his whole life to the scammer who sold a very literal listing of a Playstation 2 Original Box to one unlucky buyer. Long before the Apple Watch, Timex made a watch that could check email; long before Obama's highly digital campaign, some asked if 2000 was the first "net election"; and long before smartphone-aided comparison shopping was the norm, it wasn't clear if it would ever catch on in the US where people still didn't seem to care about wireless. One-Hundred And Thirty-Two Years Ago The Oxford English Dictionary is the gold standard of the English language, and my personal choice of dictionary whenever possible. It was on February 1st, 1884 that the first dictionary fascicle (look it up, in a watchacallit) was published with its full title: A New English Dictionary on Historical Principles; Founded Mainly on the Materials Collected by The Philological Society. Of course, it was just Volume One: A to Ant.

This week, we've got three crowdfunding projects for wonderfully inventive reimaginings of common objects that haven't changed much in a very long time. Lumir C Candles are a fine source of light, but what about all that wasted heat? It's a stroke of small genius to invent a device that captures it and turns it into more light — and that's exactly what this candle-powered LED lamp does. Admittedly, I'm not sure how practical or useful a device this is for most people, especially given the somewhat steep price — but there's something elegant and brilliant about the idea, as though it came from a basic frustration with entropy more than a pragmatic desire to make a consumer product — but maybe I'm giving it too much credit. Either way, it's pretty cool. Rocketbook Wave There are really two aspects to this notebook. The first is kind of cool: an associated app that scans and enhances the pages based on photos taken with your smartphone, and organizes them to various cloud apps based on little sorting boxes you tick with your pen. That's nothing too remarkable though. The real magic comes when it's time to empty the notebook: you put it in the microwave and all the pages come out blank. Is that a good system? How well does it work? Those are questions that are hard to answer without holding one in my hands — but it's certainly not an idea I've ever heard before, and it's nothing if not inventive. MAGNETIPS Okay, so this one isn't radical or mindblowing — it's just handy. I for one love fine-tipped markers, and as I look into my drawer full of a completely disorganized tangle of them, each with different colors and in different stages of life, I can't help but think that stackable, refillable, magnetically-connected markers is a pretty good idea. The markers themselves aren't much pricier than any other good quality options, and at $17 for a complete 20-color set of refills (not to mention the decreased likelihood of losing them one by one if you're like me) they could easily pay for themselves.

We all know that the NFL doesn't want anyone to use the term "Super Bowl" without having paid the NFL first (and paid lots and lots of money). As we've pointed out in the past, most of this is pure bullshit. In most cases, people and companies totally can use the term "Super Bowl" but few people want to deal with any sort of legal fight, so they just don't.

There's a fairly long history of Paypal being completely obnoxious in shutting down the accounts of basically anyone challenging the status quo in any way. Nearly all of our stories about Paypal follow a similar pattern:

When the Soviets launched Sputnik 1 in 1957, the US launched a satellite and put together its own space agency less than a year later. In the past week, NASA has commemorated the loss of its astronauts in the Challenger and Columbia disasters, as well as the men who died in Apollo 1. There's a new generation of kids who have only seen SpaceX and Soyuz take stuff into low earth orbit (plus maybe a successful Orion test) -- and a few other private companies reaching the edge of space. Robots have been doing an excellent job of exploring mars and other destinations in our solar system, but we shouldn't forget about manned space exploration entirely.

We've been talking about the insanity occurring in the beer industry regarding trademark for quite some time now. If you haven't been following along, the short version of this is that as the craft beer revolution has exploded the number of breweries taking part in the industry, so too has it exploded the number of trademark spats within it. In some senses, we should have seen this coming. Given the number of new players in the market with the limited linguistic resources available with which those players could name their companies and products, perhaps it was somewhat inevitable that some of the companies involved would try to lean on trademark law to fend off what they saw as impeding competition with too-close brand names. That said, many of these conflicts fail to live up to the purpose of trademark law, many of them giving barely even a nod towards an actual concern over customer confusion. Instead, protectionism reigns.

People who have worked for the USTR tend to pretty religiously support any and all new trade agreements, so it seems somewhat noteworthy that the former USTR, and now Senator, Rob Portman, has come out against the TPP agreement, saying that he doesn't think that it's a good deal. There are, of course, a number of caveats here that potentially make this at least slightly less of a big deal than it might otherwise be. Specifically:

The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones.

More sexting stupidity, this time in Michigan.

Nothing pushes a negative review of your product out of the public eye faster than a lawsuit, am I right? That's the line of thinking Enigma Software has chosen to entertain. It recently filed a lawsuit against BleepingComputer, alleging that its 2014 "review" (actually a forum post detailing Enigma's SpyHunter history as "rogue" software and the deceptive business practices the company has deployed) is defamatory.

Learn all about the art of penetration testing and hacking with the pay-what-you-want White Hat Hacker Bundle. The first two courses in the bundle include tutorials on pentesting Node.js and how to prevent XSS attacks. If you beat the average price ($20.06 at the time of writing), you gain access to five more courses covering WiFi security, ethical hacking, Windows exploits, and more. Ten percent of the profits from your purchase will go towards charity to help make the world a better place.

Amid the steady stream of "hot takes" the past few weeks on the legacy of the late great David Bowie, The Washington Post's Robert Gebelhoff dug up some of the rock legend's contrarian views on copyright, if only to rebuke them thoroughly. Gebelhoff's piece cited a 2002 interview Bowie gave to The New York Times in which he prophesied: "I'm fully confident that copyright...will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing…It's terribly exciting." Exciting though it may have been, Bowie's prediction obviously has not come to pass, for which Gebelhoff says we should be thankful. In his piece, he notes that strong copyright laws "play an essential role in our creative economy – and have done so for centuries." He cites as evidence a recent Stanford University/NBER study on how differing laws in Italian city-states led to more operas being produced where copyright was protected. Bowie has long been an innovator and music visionary, experimenting with early ways to use the Internet to "cybercast" concerts and connect with fans. But it's important that Bowie wasn't necessarily seeking the death of copyright (after all, he used it to make a living). Instead, he was paying heed to what digital media already had done to revolutionize copyright-centered industries. What he got right was detecting traditional copyright industry's anxiety – the same anxiety that has led them to push successfully for copyright terms to be extended by nearly 580 percent over the last 200 years. Mickey Mouse famously has enjoyed several retroactive copyright term extensions since Walt Disney's death, though Walt has yet to take advantage of this added incentive. So why would Bowie, whose fortune and fame owed so much to the music industry, be excited about the end of copyright? The answer is straightforward: as a working, successful musician and producer, he knew as well as anyone that unlimited copyright protection could hinder creation, as well as remunerate it. If you're a fan of Bowie's "Young Americans," you know that part of its power as a song derives directly from its unembarrassed quotation of the Beatles song "A Day in the Life." While copyright didn't disappear in the decade since Bowie's interview, Bowie was in many ways right about the impending shakeup of the industry. More and more consumers, particularly millennials, are listening to their music on demand through a streaming subscription, rather than purchasing copies a la carte. Remix has become a central technique for new creativity. And heavy-handed copyright can get in its way. Look, for instance, at what future presidential candidate Kanye West did with Ray Charles' "I Got a Woman." Bowie's vision that "music itself is going to become like running water or electricity" turned out to be pretty accurate. This trend has led to sharply declining revenues from physical sales (except for vinyl, which is doing fine, thanks to hipsters) and a steadily increasing share for streaming. Digital downloads are still popular and continue to represent a major revenue source for now. As physical formats have fallen out of favor, as Bowie perhaps foresaw, the industry experienced a period of sharp disruption. The result has been not just depressed global revenues, but also a whole apparatus of production, distribution and retail falling away. As a 2015 study by Midia observed, the narrative of "music industry decline is a label phenomenon." Which echoes what Bowie saw coming in 2002: "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way." Of course, the role of our copyright system is not to protect established industries from disruption. Policymakers shouldn't protect the record store from Apple or the bookstore from Amazon. Our nation's founders gave Congress a mandate to use copyright to "promote the Progress of Science and useful Arts." That is, to provide the carrot to spur artistic creation. If we take copyright "incentives" too far, they can undermine artistic freedom by imposing limits on other forms of creative expression and uses of tangible property. Even the opera study Gebelhoff cites in his piece acknowledges this, as its authors write that "there is no clear evidence" that copyright extension beyond the author's life span creates meaningful incentives. In fact, they suggest it has little effect "beyond the first five years." In an article about the study, New York University law professor Christopher Jon Sprigman notes that: "[this] conclusion is particularly important because our contemporary debate is usually not whether to have copyright at all, but rather whether to extend already very long copyright terms." Bowie was wrong that copyright would end, but he was right that copyright as we know it is under threat. Its foundation, built for an analog age, increasingly struggles to function in the digital one. And its market, warped by decades of heavy-handed government intervention and industry carve-outs, doesn't know how to operate freely anymore. That's why substantial reforms will be inevitable. As Congress slowly moves in that direction, it should be mindful of this lesson: stronger copyright laws don't automatically incentivize more creative freedom. In fact, they often come at its expense.

Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case.

According to a recently-filed lawsuit, the media is apparently every bit as "helpful" as law enforcement when it comes to the responsible, logical handling of teens and sexting. Confusing "hurting" with "helping," Colorado's KOAA allegedly exposed not only the name of a teen involved in a sexting incident, but also the part that puts the "sex" in "sexting."

Nothing does more damage more quickly to your community than deciding to place your fear of piracy over the the concerns of those who've already paid for your product. DRM is rarely, if ever, the answer. And yet, it remains an inexplicably popular "solution."

Techdirt has reported how many Western governments are playing on fears of vaguely-defined "terror" to push through laws limiting fundamental freedoms that would never otherwise have been discussed, much less approved. Amnesty International is warning that Hungary is aiming to join the club -- and go much, much further down this slippery slope:

We've mentioned some advances in fusion energy research not too long ago, and it looks like Germany is ready to take a few more baby steps towards figuring out how to control insanely hot plasma. Still, we're a long way from plentiful fusion-generated electricity (not counting solar), but if we want to stop burning fossil fuels, we're going to need to do some more research.

We've been talking about and asking for ECPA reform for many, many years, and it might finally be moving forward. ECPA is the Electronic Communications Privacy Act, which details how the government can get access to your electronic communications. The law was written in the early 1980s, and as you've probably noticed, we live in a very different world these days as it pertains to electronic communications. One key example: the law says that messages left on a server for more than 180 days are considered abandoned and can be searched without a warrant. That may have made some sense (though, not really) in a client-server era, where everyone downloaded their messages leading to them being deleted from a server, but it makes no sense at all in an era of cloud computing.

NBC has made its views on piracy quite well-known over the years. For instance, we all know that it thinks that piracy is the most horrible damned thing that exists on this planet, so much so that it would please like ISPs to act as its personal police force. Oh, and because NBC also just cares so much -- could we all just have our kids take a break from learning about stuff to listen to how awesome copyright is for a while? Also, however, piracy is pretty sweet when it's convenient for NBC, or when it doesn't want to bother coming up with its own images for its websites.

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

The Russian block party continues. The government agency in charge of censoring the internet is still working its way backwards, hoping to erase the collective memories of the web… or at least, keep Russian citizens from seeing certain bits of the archived past.

We first wrote about this issue in 2014, but the only known video recording of the very first Super Bowl only exists because a fan taped the TV broadcast, back in 1967. Now, as we're about to have the 50th Super Bowl, the fight has not only continued, but according to a NY Times article, the fight has been getting nastier.

Protect yourself from prying eyes and malicious websites all while hiding your IP address with ZenMate VPN. For $49, ZenMate Premium offers browser data encryption, the ability to easily switch between 11 countries, and the promise of fast internet connections. It works across all of your devices (desktop and mobile) and across a variety of popular and more obscure browsers. Browse to your heart's content knowing that your activity is hidden and secure.

A Techdirt reader has sent us a copy of former DHS head/current University of California President Janet Napolitano's official response to the outcry over the secret surveillance of UC staffers -- surveillance she personally approved.

Every year about this time, it's become a running joke what the NFL tries to do in controlling who says what about the Super Bowl. It's gotten to such absurd levels that I've taken to calling it "The Game That Must Not Be Named." Setting aside the insanity that is having ICE go piracy hunting just prior to the game to make sure that nobody can see the product outside of the official channels, the NFL also enjoys pretending like it can control how advertisers refer to the sporting contest. The key aspect of the NFL's demand is that nobody can use the term "Super Bowl" in advertisements unless the company is an official sponsor. That, of course, isn't even remotely true, but pretty much everyone buying ads bows at the NFL altar. This has also given birth to creative ways for advertisers to poke fun at the NFL for being such asshats, such as the Newcastle Brewing's lovely entry a few years back, when it produced an advertisement about an advertisement it didn'tmake, in part because the NFL wouldn't allow them to say "Super Bowl."

We've discussed for years that as an apparatus directly tied to the wallet of the cable and broadcast industry, TV viewing tracking company Nielsen has gladly helped reinforce the cable industry belief that cord cutting was "pure fiction." Once the trend became too obvious to ignore, Nielsen tried to bury cord cutting -- by simply calling it something else in reports. And while Nielsen was busy denying an obvious trend, it was simultaneously failing to track TV viewing on emerging platforms, something the company still hasn't fully incorporated.

One of the most problematic aspects of the TAFTA/TTIP negotiations is their lack of transparency. Although the European Commission, to its credit, has made available many of its initial offers and background papers, the key consolidated documents that show what's really happening in the negotiations -- and what deals are being cut -- are reserved for the inner circle. Even national politicians within the EU have been denied access to these, and that has really rankled, particularly in Germany. In an effort to defuse the anger there over this manifestly anti-democratic approach, a special reading room has finally been set up in the German Ministry of Economy. As this report from the non-profit investigative newsroom Correctiv.org makes clear, it's very special:

We haven't made a secret of our appreciation for Wil Wheaton here at Techdirt, in particular for his forward-thinking approach to digital content and intellectual property. More specifically, I've mentioned in the past that I am hopelessly addicted to Wheaton's YouTube show, Table Top, on which he features a series of table top board games being played by himself and a rotating panel of guests. As I was poking around trying to figure out when the series would resume for its fourth season, after amassing tons of crowdfunded money for the previous season, I came across an interesting thread discussing what had been dubbed "The Wheaton Effect."

For a pretty good stretch, the price of a barrel of oil was about $90-$100, but now the price is around $35 or so. That's a good bargain for some consumers, but on the other hand, thousands of oil workers aren't working and plenty of companies that bet on oil prices staying high are going out of business. The simplified explanation is that the current oil supply exceeds the demand for it -- and it takes some time/politics for oil production to adapt. Oil prices might start to go back up significantly in 2017, but in the meantime, there are about 68 oil projects around the world worth about $380 billion that are on hold for a while.

About an hour ago, representatives from 12 different nations officially signed the Trans Pacific Partnership (TTP) agreement in Auckland, New Zealand. The date, February 4th (New Zealand time) is noteworthy, because it's 90 days after the official text was released. There was a 90 day clock that was required between releasing the text and before the US could actually sign onto the agreement. The stated purpose of this 90 day clock was in order to allow "debate" about the agreement. Remember, the entire agreement was negotiated in secret, with US officials treating the text of the document as if it were a national security secret (unless you were an industry lobbyist, of course). So as a nod to pretend "transparency" there was a promise that nothing would be signed for 90 days after the text was actually released.

Are tattoos covered under copyright law? Yeah, probably. But also, hey, maybe not. But if yes, how much control does the artist get to exert over depictions of the copyrighted tattoo? After all, it's on somebody's skin. And, hey, that somebody might be famous, like an athlete, who might then be depicted in video games about that sport. If so, then we get to find out if depictions in artistic works, such as video games, would fall under fair use and/or First Amendment provisions. It seems nobody is actually sure how to answer these questions, because what few cases have been brought before the court all appear to have ended in settlements and low-level court rulings.

Despite 2015 being a banner year statistically for cord cutting, you're going to see a renewed surge in cord cutting denial over the next few weeks. Why? Cable companies like Time Warner Cable and Comcast managed to eek out modest gains in pay TV subscribers in the fourth quarter.

Former DHS boss Janet Napolitano -- who once stated she "doesn't use email" (for many reasons, but mainly to dodge accountability) -- is now showing her underlings at the University of California why they, too, might not want to "use email": someone might be reading them over their shoulders.

We've written many, many words on the ridiculousness of publicity rights, and how they're frequently abused to stifle perfectly reasonable activities. But this latest example really takes it up a notch. The owner of a horse in the UK is apparently demanding some of the prize a man won in a "selfie" contest, because the horse made a key "photobombing" appearance in the background, that likely contributed to the victory: That photo was taken by the 3 year old kid in the picture, Jacob Bellis, and that's his father, David, holding him. Nice photo! The horse in the background is named Betty, and is owned by Nicola Mitchell, who sounds like a person who perhaps needs to calm down a bit. From The Guardian:

Python is a multifaceted language that powers some of today's most popular apps and sites. For $39, the Python Programming Bootcamp will familiarize you with this easy-to-learn and versatile language. With 50 hours of instruction over 6 courses, you'll move from the fundamentals of building apps to the more complex concepts of machine learning. This bundle can help take your programming skills to a whole new level.

We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.

Three of the Four Horsemen of the Internet Apocalypse (*Revenge Porn not included) are being targeted by Utah legislator David Lifferth with a package of amendments to the state's cybercrime statutes.

While the public successfully forced the FCC to adopt net neutrality rules last year, one glaring omission may be coming back to haunt consumers and the commission alike. The FCC's open Internet rules contain three "bright-line" restrictions: no blocking, no throttling apps or traffic, and no "paid prioritization" of apps or content. Unlike neutrality rules in Japan, The Netherlands, Slovenia, and Chile however, the FCC refused to outright ban zero rating (exempting content from usage caps), instead opting to determine on a "case-by-case basis" if a carrier is violating the "general conduct" portion of the rules.

Score one for the American public. A federal judge has reached the same conclusion many FOIA requesters have: the FBI simply doesn't play well with public records laws.

Techdirt has been trying hard to follow the twists and turns of one of the longest-running corporate sovereignty cases -- that involving Chevron and Ecuador -- for many years. Public Citizen's "Eyes on Trade" blog has a good, one-paragraph explanation of the key legal disputes: