This week, our first place winner on the insightful side is Thad, responding to the tired line from apologists for Trump's immigration atrocities that there would be no problem if immigrants followed the law:

The families the Trump Administration has separated have included asylum-seekers.

Trump's Muslim ban targeted refugees.

Trump scuttled the bipartisan DACA deal partially on the grounds that it didn't do enough to decrease legal immigration. You may remember his statement at the time that he wanted more immigrants from places like Norway, as opposed to "shithole countries" like African nations and Haiti.

Basically, anybody who claims the Trump Administration doesn't have anything against legal immigration is lying, ignorant, or both.

In second place, we've got a response from Anonmylous to the pro-copyright-filter political party in France that got upset about its own content being filtered:

Ostriches are lousy politicians

Maybe.... maybe an allegory will work? Let me try.

*ahem* Dear politicians. Creating laws requiring internet companies to create algorithms that account for fair use is like passing laws requiring the Sun to burn less brightly in order to reduce global warming. It looks great on paper, but to anyone even slightly educated, you appear foolish.

We live in the Digital Age now. Stop clinging to your ignorance as if it were some badge of pride or honor. Learn about these things so you can make laws that actually help your constituents, and the world. Copyright does need reform, but not in the ways that the industry players want. they have a duty to make money for their shareholders, and nothing more. YOU have a duty to your citizens, and no one else. Its about time you remembered that.

For editor's choice on the insightful side, we've got a pair of responses to Ajit Pai's attempts to claim the net neutrality repeal had lots of support. First, it's an anonymous comment commending NPR's handling of his statements:

Props to NPR for calling him out on his bullshit to his face. We need more of this type of behavior.

Next, it's a comment from Toom1275 responding to Pai's claim that "my job is not to put a finger in the wind and decide which way the winds are blowing":

...it's to put a finger on the scales until I get the result I want.

Over on the funny side, our first place winner is an anonymous commenter responding to the (joke) idea that broadcasters should switch to the loot box model:

Spend $1 right now for a 5% chance to skip this commercial.

In second place, it's a response from David to the inclusion of spyware in video games:

Look, this is for serving you better.

All of this paranoia is overblown since this is done in service of the customer.

It's like a plumber who goes to the pain of installing a camera in your bathroom so that he can get a better picture of what may be causing repeated clogged drains and can install the best countermeasures. You don't want every handyman to pester you with details and permissions for doing the best to make things go down the drain smoothly for you in particular.

For editor's choice on the funny side, we've got a pair of comments on our post about the fired FBI official who is now experiencing the other side of the relationship between civilians and government agencies. UniKryn busted out a tiny violin joke:

Tries to build a violin out of Quarks, but those are still too large.

In response (and to be honest this is why I chose these comments — because I'm a huge Star Trek nerd) an anonymous commenter dropped a solid Deep Space Nine reference:

Don't let Odo catch you doing that; as much as he dislikes the bartender, I think he'd frown at the murder that would probably be necessary to reassemble him into a violin.

That's all for this week, folks!

Five Years Ago

This week in 2013, the NSA was seeking blanket immunity for companies that aided its surveillance programs, congressional staffers were being told to pretend leaked documents don't exist, and more than half the Senate skipped a briefing on the NSA's programs. The agency was claiming its surveillance prevented lots of attacks, but these claims tended to fall apart under scrutiny. New leaks revealed how the NSA uses data without a warrant and how the UK was sharing info with the US, and then on Friday the US government brought espionage charges against Edward Snowden.

Ten Years Ago

This week in 2008, the Associated Press stirred up a ridiculous drama following its legal threats against a blogger. First, it proposed that it would create its own rules for quoting AP reporting (as opposed to, y'know, fair use) and then released a price list for quotes based on word length, demanding money for any quote longer than four words. Thus, it was a bit embarrassing when people pointed out that the AP uses substantial quotes from bloggers, often over 100 words in its own reporting. It even did so in its own article about this very issue. Not a good look.

Fifteen Years Ago

This week in 2003, Senator Orrin Hatch worryingly endorsed the use of technology that would destroy the computers of music downloaders, even in a country where most people saw downloading as an infraction on par with jaywalking. Meanwhile, the RIAA was unsurprisingly preparing to use the names of music traders obtained through the Verizon lawsuit to send out cease-and-desist letters. And on another front entirely, the copyright questions surrounding fan fiction were being put in the spotlight by Harry Potter, and J. K. Rowling's approach to such use of her work.

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.

Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.

For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.

The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.

In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.

A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.

And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.

In the meantime, though, this is a great example of advertising as content.

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

[...]

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

I have to admit that until earlier this year, I'd never heard of Jordan Peterson. I first heard about him when he was on Russ Robert's Econtalk podcast, and it was sort of a weird discussion to go into blind, without any knowledge of Peterson. That's because throughout the podcast I found him to be extremely defensive, as if he was constantly under attack and had to parry away an onslaught of criticism. Other than that, I thought he had a few interesting ideas, mixed in with some nutty ideas. Soon after, I suddenly seemed to be hearing about him everywhere. In the last two months, the NY Times did a giant profile on him (in which he does not come off very well). He then played a major role in another bizarre and silly profile of what has been dubbed the "Intellectual Dark Web" -- a network of hilariously self-important people who seem to think they're oppressed for having thoughts out of the mainstream... even though the NY Times article goes on to describe how they all (with Peterson leading the pack) have massive followings, pack stadiums, sell insane numbers of books, and make crazy amounts of money from crowdfunding.

A core piece of that NY Times editor Bari Weiss article was the ill-supported claim that "free speech is under siege" and that these members of the "Intellectual Dark Web" were the renegades being shunned for speaking the truth that no one wanted to hear. To me, it seemed more like they were a bunch of self-important semi-hucksters who lots and lots of people were listening to, but who some people have criticized -- and they take that to mean that free speech is under attack. The more I read and watched about Peterson in particular, the more frustrating everything around him became. He certainly spews a lot of pseudo-intellectual nonsense, but so do many of the people who are angry at him. Many of the critiques of Peterson are, at best, sloppy and inaccurate. And Peterson has perfected playing the obtuse victim.

He's obviously very intelligent and is able to key in on the inaccurate representations of him, and uses that as a wedge to try to discredit those who are criticizing him. But the debates always seem to be more about misunderstanding both sides, and Peterson often appears to embrace the idea that he's a victim in all of this because people do such a poor job attacking his ideas (even if they're nutty and borderline nonsensical). This now famous interview between Peterson and Channel 4's Cathy Newman is a good example of this -- as is the also famous video of Peterson debating some angry students. In both cases, the criticisms that people are making of Peterson's ideology and viewpoints are a caricature -- and Peterson seizes on the misrepresentations, but does so in a fascinating way. Rather than trying to increase understanding and agreement, both sides just dig in and speak entirely at cross purposes. It's entertaining for people who support Peterson, who get to mock the silly misrepresentations of his critics, as well as for those who dislike Peterson, who get to mock his appearance of evading and sidestepping direct questions. It's all theater, and no one comes out of these any wiser. No one is trying to move towards more understanding. They all seem to embrace the misunderstanding as evidence of just how wrong the other side is.

Of course, part of the irony is that as he's perfected playing victim to what he (perhaps reasonably) considers to be unfair criticism, he seems to be adapting the very same stance that he accuses "the radical left" and "snowflakes" of embracing: he becomes quite intolerant of his critics. And now it's reached a new level of ridiculousness (again on all sides) with Peterson suing Wilfrid Laurier University for defamation. It's not often you see people who claim to be free speech warriors suing people for defamation, and especially not just because they said some not nice stuff about him. But, it appears that Peterson is really trying to come out as both a free speech defender... and a victim of free speech at the same time.

And, to be clear, the actions of Wilfrid Laurier University are completely preposterous and deserve to be mocked widely as they have been. It involved a teaching assistant at the school, Lindsay Shepherd, who had showed a clip of Peterson discussing gender pronouns (a topic that Peterson has strong feelings about) in a class. Shepherd does not appear supportive of Peterson's position, but was clearly using the clip to inspire a conversation. That seems laudable. What seems preposterous is what happened next: Shepherd was pulled into a disciplinary hearing and basically told that merely playing video of a public debate of Peterson potentially violated the human rights of students and was the equivalent of playing a clip of Hitler. Shepherd recorded the meeting and it's incredibly stupid. Shepherd, quite reasonably points out what she was trying to do, and the administrators come off as a caricature of the overly politically correct morons that some people (incorrectly) assume run every campus these days. Listening to the whole thing, is painful. Shepherd comes out looking reasonable. The school looks ridiculous. Indeed, the school apologized last fall soon after the audio of her meeting went viral.

Last week Shepherd sued the University herself, with claims of harassment, intentional infliction of nervous shock, negligence and constructive dismissal. It's interesting to note that within the filing, Shepherd's suit directly claims that the professors and administrators in the meeting with her defamed Peterson with their inaccurate portrayals of Peterson. Her own lawsuit, though, does not have any defamation claims.

And, then, this week, Peterson filed his suit -- employing the same lawyer as Shephard. In a statement, Peterson claims that he decided to do so after seeing Shepherd's lawsuit and speaking with her lawyer. Again, irony abounds, as his statement sounds quite a bit like those he was criticizing -- stating that he hopes this makes them think twice before saying mean things about him. He first says he decided to file the lawsuit because he felt that the university "had learned very little from its public embarrassment," and therefore apparently needed the power of the state to fine them for their own speech? That seems... very unlike a "free speech warrior." And then there's this:

I thought that two lawsuits might make the point, better than one. I'm hoping that the combination of two lawsuits might be enough to convince careless university professors and administrators blinded by their own ideology, to be much more circumspect in their actions and their words.

That... does not seem like someone who is a free speech warrior. That... does not seem like someone who believes in open debate. Even as ridiculous and silly as the University's actions were -- and they deserve tremendous mockery for their hysterical and bizarre response to Shepherd's lesson -- responding by suing for defamation is crazy. Canada, unfortunately, has defamation laws that strongly favor the plaintiff making the claims -- unlike in the US where we have a strong First Amendment -- but already experts seem to be suggesting his case is unlikely to succeed. If it were filed in the US, based on what I listened to of the meeting between Shepherd and the professors/administrators at the university, the lawsuit would be laughed out of court, and would be blasted as a censorial attempt to silence someone for protected speech, even if that speech is nonsense. Unfortunately, I have not yet been able to read the full complaint by Peterson as it does not appear to be readily available, so at this point I am only going off of the source material of the recording that Shepherd made, along with the claims that it is the content of that recording that is the basis of Peterson's defamation claims. If there is something more in the actual complaint, I would be happy to revise my opinion of the situation.

The whole thing seems ridiculous, frankly, as with so many of the debates around Peterson. Lots of people are making silly arguments and talking at cross purposes. Almost everyone comes off looking silly. However, just because debates get silly and heated, or just because some professors or teachers make silly claims, the idea of running to the courts and crying defamation, while directly claiming you hope the lawsuit will silence other professors at other universities certainly suggests that Peterson is no friend to free speech.

And this brings us back around to the whole "Intellectual Dark Web" thing. This case suggests the same ridiculous pattern. This is not deep thinkers being oppressed for their heretical great ideas. These are insecure, thin-skinned people with silly ideas, playing victim when other silly people make silly statements about them. Everyone gets to play victim. No one seeks to actually build up more understanding or reasoned debate. Instead, everyone just gets to dig in on their own silly positions. It's not the Intellectual Dark Web. It's the Intellectual Derp Web. And now it's attacking free speech, while pretending to be staunch defenders of free speech. Derp.

The somewhat apocryphal purpose of the early internet was to have a system that could survive a nuclear war, by building it in nodes, such that it couldn't be knocked out easily. That distributed and decentralized concept had many other benefits as well. Somewhat famously, 25 years ago, John Gillmore declared"The Net interprets censorship as damage and routes around it." And there remains some truth to that... in part. But the internet has changed drastically over the decades, and we're now living in the age of the cloud -- which might better be described as the age of the large third party who can be influenced.

Bruce Schneier has written up an interesting article discussing how the rise of the cloud has also enabled much more censorship.

Internet censors have a new strategy in their bid to block applications and websites: pressuring the large cloud providers that host them. These providers have concerns that are much broader than the targets of censorship efforts, so they have the choice of either standing up to the censors or capitulating in order to maximize their business. Today’s internet largely reflects the dominance of a handful of companies behind the cloud services, search engines and mobile platforms that underpin the technology landscape. This new centralization radically tips the balance between those who want to censor parts of the internet and those trying to evade censorship. When the profitable answer is for a software giant to acquiesce to censors' demands, how long can internet freedom last?

It's a good question, and one that I've been thinking a lot about in the past few years. I think it's an overreaction to blame the concept of "the cloud." Indeed, the idea of moving information onto the internet, rather than buried on local machines has some massive benefits, including the ability to access the information and services from any device, as well as being able to (sometimes) connect various services together and accomplish much more.

The real problem to me -- and one I've spoken about going back many years -- is that today's "cloud" is not the "cloud" we should want. It's become a series of silos. Silos owned by large companies. But there's no reason it needs to remain that way. There is simply no reason that we can't build a "cloud" in which end users retain full control over their data. They may allow third party services to access and interact with that data, but it's bizarre how the vision of the "cloud" has turned into a world where it basically just means Google, Microsoft, IBM, Rackspace, whoever else, hosting all your data and retaining all of the control to it, including the control to take it down and make it disappear.

Most of Schneier's piece focuses on Russia's somewhat Quixotic focus on shutting down Telegram, but notes that what happens is almost entirely up to a few large internet companies, and how much they'll push back on pressure from Russia (or other governments):

Tech giants have gotten embroiled in censorship battles for years. Sometimes they fight and sometimes they fold, but until now there have always been options. What this particular fight highlights is that internet freedom is increasingly in the hands of the world's largest internet companies. And while freedom may have its advocates—the American Civil Liberties Union has tweeted its support for those companies, and some 12,000 people in Moscow protested against the Telegram ban—actions such as disallowing domain fronting illustrate that getting the big tech companies to sacrifice their near-term commercial interests will be an uphill battle. Apple has already removed anti-censorship apps from its Chinese app store.

But it's unfortunate that that is the end result. Sometimes it's good that there are large companies who will (sometimes) fight these battles for smaller players, but that shouldn't be the last resort to protect against censorship of the type that Russia and China and other countries seek. For years we've been saying that it's time for us to rethink the internet, and move back towards a more decentralized, distributed world in which this kind of censorship isn't even an issue. It hasn't happened yet, but it feels like we're increasingly moving towards a world in which that's going to be necessary if we want to retain what is best about the internet.

The $39 Essential Salesforce Certification Training Bundle is three courses designed to take you from beginner to pro. You'll learn to manage users and data, customize and maintain basic applications, and prepare custom reports, workflows, and report dashboards. You also get 4 practice exams for the Salesforce Certified Administrator Certification exam, and 2 practice exams for the Salesforce App Builder Certification exam.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as "The Clenched Fist of Truth" or "The Violence of Lies." It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I'm not linking to the video because I don't need to give it any more attention and if you really want to see it, you know how to use the internet.

Now, let's move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago's Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It's called The Bean. I mean, officially, it's called "Cloud Gate," but no one calls it that. Even Kapoor now now calls it the Bean.

However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There's been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe -- with pretty damn good justification, I'd say -- that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this -- which is unfortunate.

Over the last year, Kapoor has been particularly up in arms over the fact that the NRA's silly video includes a ridiculous brief clip of the Bean. It appears for less than a second in a montage of clips. But it's there:

Kapoor has been unhappy about this for a while, and earlier this year penned an open letter to the NRA decrying its policies. This is good. This is what free speech allows.

However, this week, he took it a step further and filed a really, really dumb copyright lawsuit against the NRA (first noted by ARTnews).

The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA's video, rather than anything related to the actual copyright related rights at issue.

On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I'll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media.

I mean, yeah. But what does that have to do with copyright? Absolutely nothing.

The actual copyright claim is incredibly, laughably weak:

As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial.

Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won't work with him. Also this:

As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits,

Nah. That's not how it works. First of all, if the NRA is profiting from the video, it's not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery.

But the larger point: this is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.

The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with. We can all agree that the NRA is an odious organization with an odious message, but let's not dismantle the First Amendment just because of that group's ridiculous and dishonest methods for defending the Second Amendment. The NRA has every right to use that snippet and all Kapoor's lawsuit is doing is getting the NRA's video that much more attention. The case seems likely to get tossed out quickly. The case was filed in Illinois, which has an okay anti-SLAPP law, which means the end result may actually be that Kapoor ends up paying the NRA's legal fees.

We've talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of "but piracy isn't free speech." That's a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn't allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far.

We've discussed for a while now how FCC boss Ajit Pai is busy gutting decades old media consolidation rules simply to help Sinclair Broadcast Group complete its $4 billion acquisition of Tribune. Many of these rules traditionally enjoy bipartisan support, since they protect local news organizations and free speech from being crushed by any one, major broadcaster. And Sinclair's merger, which would allow it to reach nearly 72% of the country with its facts-optional and monolithic programming (as that recent viral Deadspin video attests), has been routinely under fire by groups on both sides of the partisan aisle.

As Sinclair moved to acquire Tribune, it kept running into FCC rules. Rules Ajit Pai was more than happy to systematically remove at every step in perfect synchronicity with Sinclair's ambition. And while Pai's allies on the commission claim this timing is all just quirky happenstance, the allegations have resulted in the FCC's nonpartisan inspector general launching an investigation into possible corruption and coordination between the FCC and the broadcaster. Pai's fellow Commissioners like Jessica Rosenworcel have publicly stated the Trump FCC is little more than a rubber stamp for Sinclair:

To specifically help Sinclair's merger squeeze in under the media ownership cap, Pai's FCC restored an irrelevant bit of 1980's regulatory guidance known as the UHF Discount. Built in the 1980's as a mechanism to adjust for the lesser quality and reach of UHF stations, the rule was eliminated a few years ago for being the sort of outdated regulatory red tape Pai's FCC routinely pretends to be waging war against. But Pai's FCC suddenly and quickly restored the rule just a few weeks before Sinclair announced its merger, conveniently allowing Sinclair to under-state the company's real ownership reach.

That, in turn, has resulted in a looming legal challenge driven largely by consumer groups (but again enjoying bipartisan support from Conservatives like Newsmax CEO and Trump ally Chris Ruddy):

"A panel of appellate judges questioned why the FCC reinstated a rule that allows media companies to amass a greater number of stations and still fall within ownership limits...The three judges on the DC Circuit Court of Appeals panel raised some concerns about the rationale behind the FCC’s decision in April, 2017, to reinstate the UHF discount after abolishing it a year earlier...

Chris Ruddy, the CEO of Newsmax, who has been highly critical of the FCC’s action, as well as of the Sinclair-Tribune merger, said in a statement that “the judges on the DC Circuit reviewing the FCC’s UHF discount were left scratching their heads wondering why the rule was re-instated when everyone — Republicans and Democrats alike — agree that the discount is an analog relic and makes no sense in a digital world.

Undaunted by an ongoing corruption investigation, Pai is rushing forward with a July 12 vote to further erode a rule prohibiting any one broadcaster from reaching more than 39% of the national audience. The hope, clearly, is to formalize a higher overall ownership cap before the courts can challenge the FCC's previous rule changes. However, there's ample question as to whether the FCC has the authority to modify this cap (even some of Pai's allied Commissioners have acknowledged they may not), and such a ruling will absolutely be quickly appealed.

Sinclair, meanwhile, is busy trying to burrow over and under what media ownership rules remain, in part by promising to offload some stations to shell companies or companies that still have a relationship with Sinclair.

All told, it's just another example of how Trump's "populist" rhetoric is about as deep as a mud-puddle and authentic as a wild west movie set. Between efforts to hamstring competition, neuter regulatory oversight, and gut net neutrality and rubber stamp major media mergers (from Sinclair to the looming tie up between Sprint and T-Mobile), Ajit Pai's FCC is pursuing a very specific idea of what they want the future of the internet and media to look like, with healthy competition, consumers and small business welfare being a very, very distant afterthought.

If this is becoming a trend, it's a really, really stupid one on the part of the video game industry. You may recall several recent posts about software, mobile apps, and video games that have sneakily installed what many call spyware onto users' machines, or otherwise inject software without the knowledge of the user. From soccer apps to flight simulator mods, users and gamers sure as hell don't like it when they have to find out from internet sleuths that the software they're using is spying or using them behind the scenes without their knowledge.

And now we learn about Red Shell, a software company that has contracted with multiple game publishers. Red Shell's software is installed alongside games to track all kinds of information about the machines on which those games are played. It gathers information about a gamer's operating system, browser version, IP address and more, all with the goal of feeding information to game publishers to evaluate how effective their advertising models are. We should note here that Red Shell specifically claims that personal information is not collected.

“We don’t collect names, emails, or addresses,” Red Shell says on its website, noting that games can offer an opt-out to players if developers so choose. “Our service basically says ‘this computer clicked on a link from this YouTube video and the same computer played your game.’ We have no interest in tracking people, just computers for the purposes of attribution.”

Whatever lengths Red Shell goes to anonymize this data, the simple fact of the matter is that all of this was done without the knowledge of the gaming public installing these games. And we're talking about a massive amount of games found to include Red Shell software thus far.

The software has been discovered in over 50 games including The Elder Scrolls Online, Conan Exiles, Hunt: Showdown, and Civilization VI. For the past couple weeks, a contingent of players have dedicated themselves to weeding it out, decrying it as “spyware” that many companies failed to disclose.

“Red Shell is a spyware that tracks data of your PC and shares it with 3rd parties,” Redditor Alexspeed75 wrote last week in a thread that’s became something of a rallying place for aggrieved players. “On their website they formulate it all in very harmless language, but the fact is that this is software from someone I don’t trust and whom I never invited, which is looking at my data and running on my PC against my will. This should have no place in a full price PC game, and in no games if it were up to me.”

Since then, publishers have either been removing the Red Shell software from game installs, or else pledging to not use the software in the future. The folks over at Red Shell are not pleased with all of this, obviously, claiming that this is all a case of the public misunderstanding what it's software does and does not do.

And, look, to some extent, Red Shell might be getting an overly bad rap here. What immediately strikes me is how different this story might be had Red Shell or, more importantly, game publishers simply kept all of this known and above board. If gamers were more informed of what Red Shell software does and on what games it's included, I doubt the same kind of outcry would be on display. And, if Red Shell's software is as innocuous as it claims, that kind of disclosure shouldn't have been a problem.

Instead, everyone acted sneaky and is now claiming frustration at the lack of trust the public didn't afford them all retroactively.