The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska that not only proposed protecting the consumers' right to repair their own tech, but protected independent, third-party repair shops from efforts by many major companies to monopolize repair (Apple and game console vendors like Sony and Microsoft usually come first to mind). This push then quickly spread to multiple other states, driven by a groundswell of consumer annoyance.

Last week, California became the twentieth state in the country to support such a law. It's the second year in a row the legislation has been proposed, with the folks at iFixit explaining that this latest version eyes simply updating the state's existing lemon law:

Last year’s bill was proposed to California law at large, while this year’s bill is an amendment to California’s effective Lemon Law, a.k.a. the Song-Beverly Consumer Warranty Act. Unique to the state of California, this law requires companies to provide a repair option. It’s been effective at making sure that you can get your six-year-old MacBook Pro fixed by Apple in California—a service that Apple refuses to perform across the border in Arizona. But manufacturers found a loophole in the law allowing them to monopolize repair rather than providing parts to the repair provider of the consumer’s choice. This bill closes that loophole.

Granted the reason no bill has actually been passed yet is thanks to the extensive lobbying done by companies including Verizon, Microsoft, Apple, and Sony, who obviously don't want smaller independent shops (or smart consumers) eroding their repair revenues. More often than not, these companies have tried to scare folks away from such legislation by insisting it will create all manner of new and diabolical privacy and security problems. Apple in particular notoriously warned that the law in Nebraska would somehow make the state a "mecca for hackers."

The efforts proceed all the same. Of the 20 state laws proposed, Minnesota's effort (which has now passed through two state committees) has managed to proceed the furthest. For its part, iFixit notes that the legislation doesn't just aid consumer rights, it can help rein in waste made worse by companies like Apple which impose counterproductive restrictions on re-use and recycling:

"Consumers should have the right to choose their repair provider. Increasing independent repair options will encourage people to fix the electronics and appliances they already own, rather than toss their broken belongings and buy new ones. Independent and self-repair also help people save money, create local jobs, and prevent e-waste—which is now the fastest growing waste stream in the world."

And while numerous giants are working hand-in-hand to scuttle such legislation, it seems like 2019 is likely to see the first such bill finally passed, with many more clearly waiting in the wings as consumers grow increasingly annoyed by high costs and arbitrary restrictions.

For three years, state Department of Corrections staff knew a software-coding error was miscalculating prison sentences and allowing inmates to be released early. On Tuesday, Gov. Jay Inslee gave the damning tally: up to 3,200 prisoners set free too soon since 2002.

For thirteen years, officials knew there was a problem with the software but did nothing about it. It wasn't until the state's governor got involved that anyone at the DOC started caring about its malfunctioning code. The code was supposedly fixed but new problems arose, affecting both sides of the jail walls.

A software problem has caused at least a dozen Washington prison inmates to be released too early — or held too long — and has sparked a review of as many as 3,500 cases.

Department of Corrections (DOC) officials are scrambling to determine whether the other inmates’ sentences were miscalculated and are still working to gauge the scope of the problem.

The previous bug miscalculated "good time" credits, resulting in thousands of premature releases. This time around, buggy code is screwing up calculations for inmates who have violated their parole. A few have benefited from the problem. But most of the cases being reviewed involve inmates who have been jailed for too long.

The previous calculation error resulted in two homicides by an inmate who was released too early. This time around, it's far more likely inmates who have served their time aren't being released. Either way, there's life and liberty on the line and the Department of Corrections is showing little sense of urgency when addressing these problems.

If there's a silver lining, it's this: with enough votes, the state's convoluted sentencing laws will be simplified, potentially making the calculation of sentences easy enough any human can do it.

[State Representative Roger] Goodman has proposed legislation, House Bill 1495, creating an 18-member task force that would review and recommend simplifications to the state’s sentencing guidelines, with a final report due by the end of 2020. He said his committee also may ask DOC leaders for a public briefing and explanation of the latest sentence-calculation problems.

Of course, this could take as long to fix as it took the state DOC to fix its original software problem. No answers would be expected for another 18 months, by which point new bugs in the DOC's software may surface and start handing out get out of jail free cards to some inmates and go directly to jail cards to others who've already served their time.

And if it's not working now, there's a good chance the DOC's software will never function properly. Part of the problem is the legislature itself, which complicates sentence calculations by adding new wrinkles with each legislative session. According to the Seattle Times, at least 60 bills in the pipeline could affect sentencing guidelines, increasing the chance of new calculation errors developing.

Software may be the only way to handle a job this complex. But those overseeing the software's deployment have shown they're not too interested in proactive maintenance of this complex system. Problems are eventually solved, years after the fact. That sort of responsiveness is unacceptable when guidelines are being constantly altered by new legislation.

Yup, 399k. Actually, as I've been typing this, it's kept going up, but I'm not going to keep taking screenshots. And, yes, the Cow now has more followers than Rep. Nunes himself:

Great job, Devin. You really shut up that satirical cow.

Now, Twitter, how do we go about getting the satirical fake cow a blue checkmark?

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Following the killing of Che Taylor by Seattle police officers, councilwoman Kshama Sawant issued statements criticizing the Seattle Police Department for the shooting. From the decision [PDF]:

Approximately five days after the shooting, Sawant appeared before a crowd and media in front of the police department. This was not official city council business, and certainly not a “legislative function.” Sawant, however, implied awareness of inside factual information, and appeared to be making a statement against interest. With gravitas established, she went on to pronounce Che Taylor’s death a “brutal murder” and product of “racial profiling.”

Sawant reiterated these comments throughout the year, according to the lawsuit. However, she never directly accused the two suing officers -- Scott Miller and Michael Spaulding -- of being murderers. Her comments called the shooting a "brutal murder" and implied the PD engaged in biased policing, but at no time did she mention these two officers by name.

The officers argued Sawant's statements impugned them individually even though she only spoke about the police department as a whole. The court says suing as individuals and advancing a group theory of defamation takes far more than the officers showed in their complaint.

[W]whether proceeding under an individual or group theory, Plaintiffs must plead that the statements “specifically” identified or singled them out, or was understood as “referring to [them] in particular.” Sims, 20 Wn. App. at 236.

Here, Plaintiffs have not done so, and the Court finds that Councilmember Sawant’s statements do not satisfy the “of and concerning” requirement. According to the SAC, Councilmember Sawant, while standing in front of the Seattle Police Department, stated that “the police” committed a “brutal murder” which was “racially motivated.” (Dkt. No. 23 at ¶¶ 46, 54.) Councilmember Sawant did not identify Officers Miller and Spaulding by name, nor did she provide any information that would even remotely allow listeners to ascertain their identities, such as their rank or position, division or unit, precinct, or length of time on the force. Finally, Councilmember Sawant’s statements referred broadly to “the police,” the “Seattle Police Department,” and “systematic police brutality and racial profiling.”

Feeling insulted by blanket statements isn't a solid basis for a defamation lawsuit. The officers' attempt to tie reporting from local papers to the councilmember's statements fares even worse.

While Plaintiffs contend that Councilmember Sawant “continually brings it back to these specific officers and this specific incident” her references to “holding the Seattle Police Department accountable for their reprehensible actions, individual actions” and seeking “justice on the individual actions” do not clearly establish Officers Miller and Spaulding as their target. See Sims, 20 Wn. App. at 237 (“[T]he plaintiff must show with convincing clarity that he was the target of the statement.”) (emphasis added).

That the Seattle Times contemporaneously published an article identifying Officers Miller and Spaulding by name does not change this outcome. The “identification of the plaintiff[s] as the person[s] defamed” must be “certain and apparent from the words themselves,” without reference to extrinsic sources. Id. at 234 (emphasis added) [...] Finally, even if Plaintiffs were correct that the references to “individual actions,” coupled with their identification in the Seattle Times, could somehow transform what are otherwise vague and oblique statements into actionable defamation, the SAC does not plead any of these facts.

The officers have already been given one chance to turn their complaint into something actionable. The court isn't willing to give them a third try -- not when it's apparent this defamation lawsuit can't be fixed.

[E]ven if the Court were to grant Plaintiffs leave to amend to include these statements, they cannot satisfy the “of and concerning” requirement, and Plaintiffs make no effort to explain how they could resolve this deficiency, or how additional discovery could possibly uncover additional actionable statements.

The lawsuit is done. Dismissed with prejudice. These cops paid for the chance to learn that people saying unkind things is not actually defamation, especially when the person saying these things never names names. Thanks to this stupid lawsuit, Seattle taxpayers will be doubling up paying for these officers' actions. First, they paid for the city's defense of Councilmember Sawant's non-defamatory statements. They'll be asked to foot the bill again in the near future to defend these officers from a lawsuit brought by the family of the man they killed.

After taking aim at VPNs, Putin signed two new bills this week that dramatically hamper speech, especially online. One law specifically takes aim at the nebulous concept of "fake news," specifically punishing any online material that "exhibits blatant disrespect for the society, government, official government symbols, constitution or governmental bodies of Russia." In other words, Russia wants to ban criticism of Putin and his corrupt government, with experts telling the Washington Post that the updated law effectively removes the pesky legal system from what was already a fairly draconian system:

"Prosecutors can direct their complaints about online media to the state, which can block access to websites if the offending material isn’t taken down.

This, experts say, is new. “The Prosecutor’s office may now block such fake news sources prior to the judicial decision. It gives the Prosecutor’s office an extremely high authority and almost completely eliminates the Russian (albeit completely non-free) courts from the game,” Maria Snegovaya, an adjunct fellow at the Center for European Policy Analysis, wrote in an email.

“In other words, it significantly expands the repressive power of Russia’s repressive apparatus. This may be compared to the Stalin’s Troika, a commission of three for express judgment in the Soviet Union during the time of Joseph Stalin who issued sentences to people after simplified, speedy investigations and without a public and fair trial,” she added.

Websites that now spread "fake news" in Russia (defined as anything that criticizes Putin and his coalition of mobster oligarchs) now suddenly face fines of up to 1.5 million rubles ($22,900) for repeat offenses. Another companion law signed by Putin this week is equally problematic; it would update existing laws to make it a federal offense to insult the Russian government or political leaders. Repeat violators of that law face fines up to 300,000 rubles ($4,700) — and 15 days in jail:

"The bills amending existing information laws overwhelmingly passed both chambers of Russian parliament in less than two months. Observers and some lawmakers have criticized the legislation for its vague language and potential to stifle free speech. The legislation will establish punishments for spreading information that “exhibits blatant disrespect for the society, government, official government symbols, constitution or governmental bodies of Russia."

Both law updates quickly passed through the Russian Parliament in less than two months despite widespread condemnation and a petition of more than 100 journalists and academics lambasting the proposal as ham-fisted authoritarianism. It's an amusing and slightly terrifying escalation from a government busted for pushing buckets of hateful and idiotic disinformation online, yet simultaneously pretending to wage a war against inauthentic news coverage and critical thinking. It's clearly a model Putin hopes to export to numerous countries, not least of which being the already-factually-challenged United States.

Of course while Russia would frame this as a show of strength, it's really a show of fear. This, combined with Russia's efforts to disconnect itself from the internet makes it abundantly clear how afraid the government is of not only free speech, but its own people too. A Russian public that has not only been increasingly protesting these obnoxious internet restrictions, but also the underlying Russian economic problems Putin very clearly doesn't want highlighted online.

Last year, a high school decided it would rather demonstrate its subservience to local law enforcement than stand behind its students and their First Amendment rights. Photos of a painting of a cop in Ku Klux Klan hood pointing a gun at a black child appeared in the school newspaper. Instead of running the article, a teacher ran down to the cop shop to offer a profuse apology on behalf of "99.9% of the teachers at the school." Returning to school with the aftertaste of boot polish still lingering in his mouth, he engaged a full-on tongue kiss with the town's mayor, who offered his own profuse (and cowardly) apology to the offended police department.

Now, as Sarah McLaughlin of FIRE reports, another institute of learning has decided the best approach to controversial artwork is to display its soft underbelly to law enforcement as quickly as possible. A faculty member's artwork was deemed "controversial." This is an unsurprising development. Controversy and artwork have enjoyed a long and healthy relationship for many, many years.

What is surprising is the university's reaction to the controversial artwork. Faculty member Serhat Tanyolacar's submission was met with a whole lot of resistance from Polk State (Florida) itself due to its subject matter.

Tanyolacar’s piece, “Death of Innocence,” depicts several poets and writers juxtaposed with a number of altered images of President Donald Trump and other political figures engaging in sexual activity. According to Tanyolacar, the work is meant to highlight “moral corruption and moral dichotomy” and provoke debate.

Polk State Program Coordinator Nancy Lozell informed Tanyolacar on Feb. 6 that it would not be displayed at a then-upcoming faculty art exhibition because the college “offers classes and volunteer opportunities to our collegiate charter high schools and other high schools in Polk county and we feel that that particular piece would be too controversial to display at this time.”

The university refused to offer any justification for this move when asked to explain its ignorance of the First Amendment by FIRE. It also refused to provide an answer as to when the artwork would be exactly controversial enough to be put on display.

But it gets a whole lot weirder and scarier and stupider. Documents obtained via public records requests show school officials decided to get local law enforcement involved in its First Amendment altercation. For reasons only known to the school (but reasons that certainly appear to be vindictive), the school asked the Polk County Sheriff (rather infamous around these parts) and the county district attorney to hand down an ad hoc obscenity ruling. This is part of the letter sent to the school's president by the school's attorney, discussing the "solid ground" the university would be on if it chose to keep censoring Tanyolcar's art.

Earlier this week, we understand that you and several other College administrators met with the Polk County Sheriff and an Assistant State Attorney for the Tenth Judicial Circuit to discuss the Work. We understand that both the Sheriff and the Assistant State Attorney have stated that they view the Work to be obscene material and that they intend to enforce Florida’s obscenity statute in the event that the Work is displayed to the general public without restriction.

Without question, the Work is an overt depiction of sex acts being committed by national politicians, including the President of the United States. Art is often in the of the beholder, but, as Justice Potter is known for saying, “I know [obscene material] when I see it.” Jacobellis v. State of Ohio, 378 US. 184, 197 (1964)(Potter, J., concurring). You are certainly entitled to rely upon the wisdom and advice of the County Sheriff and the State Attorney’s Office in determining if the local Polk County community would view the Work as obscene material. Given that law enforcement has opined that the Work is obscene, we feel constrained to advise you of the same.

Not only did the school approach law enforcement to get clearance to bury this artwork, it also received assurances the Polk County Sheriff's Department would arrest someone (probably the artist) if the work was displayed publicly.

It's difficult to express just how fucked up this is. Rather than support a faculty member's protected expression, the university went out of its way to find some way to punish him for creating it. It wasn't enough for Polk State to simply reject his submission and deal with the inevitable -- and accurate -- accusations of censorship. No, it had to go to one of the lousiest sheriff's departments in the country and ask for assurances someone would be rung up on obscenity charges should the blow-back force release of Tanyolacar's creation.

But it's not the only thing. In India, where Bollywood has often put out the same old story about the evils of piracy, and where the government recently ramped up criminal penalties for recording or transmitting films and audio, one newspaper has comments from within the industry that suggest much of the film piracy in question is specifically enabled by rival publishing houses.

According to a Tamil cinema DVD seller, who spoke on the condition of anonymity, piracy is mostly an inside job. The source explains that movie companies are leaking each other’s films, as a competitive move.

“People from rival production companies or those from the creative department secretly release the movie online or circulate it as DVDs to hit the collection at the box office,” the source said.

This sounds like a Wild West story, but the allegations don’t stop there. Another source said that the local censor board and distribution houses are also on the piracy bandwagon.

“Another industry source said insiders in the censor board and distribution houses sell these copies for up to `5 lakh. The copies are uploaded on private portals that have dedicated passkeys,” the Times of India reports.

None of this specifically excuses downloading a film illicitly, of course. However, it most certainly does call into question the industry claims that piracy is by and large harming the wider film industry. If that were true, then these industry insiders uploading cam-footage and other films of recent releases would be committing self-inflicted wounds. Doing so would make little sense, were the larger claims of the industry true.

Amazingly, this goes even further down the chain, supposedly. These insiders work with theater owners to get these recordings, rather than movie-going citizens.

When it comes to recording video and audio at movie theaters, it is believed that some movie industry insiders work in tandem with theater owners to leak high profile films. As a result, some films appear online just hours after their official premiere.

So we have multiple layers of India's film industry facilitating the infringement of that industry's films to harm the competition, all while the studio heads and government say that it really hurts the entire film industry. If all of this is true -- and it's definitely an "if" --, it would appear that Bollywood is very busy harming itself for reasons that can't be explained.

Other than to say that the industry's hand-wringing is overblown, of course.

Sometimes people ask us why we write so much about the police on Techdirt. Though our coverage has grown somewhat beyond the boundaries of incidents directly involving technology, the reality is that the problems with law enforcement persistently intersect with the same technological and legal issues we've always discussed here. But this week the focus is squarely on cops and technology: Mike is joined by Matt Stroud, author of the new book Thin Blue Lie, as well as our own Tim Cushing, to talk about the failure of high-tech policing.

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.

A 19-year-old woman whose hands were cuffed behind her back when she committed suicide during a traffic stop in Chesapeake died of a gunshot wound through the mouth, according to the Office of the Chief Medical Examiner.

This is the official line -- one repeated several times by local journalists. The traffic stop leading to this highly unlikely conclusion occurred July 25, 2018. Here's what the Chesapeake Police Department said then:

Officers pulled over the car at 4:24 p.m. Wednesday near the intersection of Berkley Avenue and Wilson Road, police said in a news release Wednesday afternoon.

The exact timeline is not clear, [spokesman Leo] Kosinski said. As officers used a stun gun on the driver, Wilson, who was a passenger, shot herself, he said. Police attempted life-saving measures and called for medical assistance, but she died at the scene, the news release said.

The original report also noted the PD was looking at body cam footage from the scene to determine what happened.

Less than a week later, the initial impression was the official narrative.

Police had handcuffed Wilson when Medlin began resisting arrest and trying to flee, said Officer Leo Kosinski, police spokesman. Wilson was left standing next to the passenger side of the car while police rushed to help the officer who was trying to arrest Medlin, he said.

It was then that Wilson somehow got a gun and shot herself in the head, Kosinski said. It was not immediately clear how Wilson got the gun, but it was not a police weapon, he said.

“We clearly ruled that it was a suicide,” Kosinski said.

"We." I guess that means the PD since the medical examiner didn't hand down his declaration until March 14, 2019. The police department, however, made its own unscientific findings public twice in one week.

As for the body camera footage, there was nothing usable there.

One officer was wearing a body camera, but it was “knocked offline” while Medlin was fighting the officer, Kosinski said. If the camera hadn’t gone offline, it still wouldn’t have recorded the shooting, Kosinski said, because the officer was struggling with Medlin.

The police department has 356 cameras and deploys "40-60 per shift." The department has 525 officers so it seems the odds were in favor of there being multiple cameras on the scene. But the only footage recorded didn't capture the incident. Multiple police cruisers were on the scene, but the Chesapeake PD decided to eliminate dash cams when it acquired body cameras, removing one more impartial witness.

With the official word from the state, the Chesapeake PD closes the book on an extremely dubious "suicide." Whether this is just a bunch of lies or some very terrible police work, the end result is the same: someone in handcuffs ended up dead. The odds that this person decided to escalate a traffic stop to a successful suicide attempt are incredibly low. Something fucked up happened that afternoon and the police department hasn't even attempted to explain how something like this might have happened. Since the medical examiner has spoken, the Chesapeake PD has decided it's no longer obligated to provide an explanation.

The CPD launched an internal investigation into Wilson's suicide in July. Kosinski confirmed that the department has since concluded that investigation, but declined to comment on its outcome.

Worse, there's been no pushback from the local media covering this arrest and its ensuing, and completely unbelievable, suicide. This isn't journalism. It's stenography.

And yesterday, he sued an internet cow for making fun of him.

By now you may have heard, as first reported by Fox News, that Rep. Devin Nunes -- who spent two years making a total mockery of the House Intelligence Committee -- has decided to sue Twitter and some satire accounts, and a real political commentator for a variety of "offenses" from defamation to shadow banning. The complaint, filed in a local court in Virginia, is not yet available anywhere but Fox News' posting of it (so you can click the link above, but we can't embed it yet).

Let's just get the first part out of the way: the complaint is utter nonsense. It is a complete joke. It makes a total mockery of the judicial system and its an embarrassment that Nunes thought this was a good idea. We'll get into the details in a moment, but rest assured, we see a lot of really dumb lawsuits, and this one is up there on the list of truly special ones.

At the very least, it highlights exactly what kind of content gets under his skin. It's mostly a bunch of dumb tweets mocking Nunes that not that many people saw... and now absolutely everyone will see. Apparently, Rep. Nunes has never heard of the Streisand Effect, but he's learning quite a bit about it now.

Let's dig in. The caption for the lawsuit is... truly special:

If you can't see that, it lists Nunes as the plaintiff followed by four defendants: Twitter, Liz Mair, and then two obviously satirical Twitter accounts: @DevinNunesMom and @DevinCow. Yeah.

The lawsuit does not get any better from there. He's seeking $250 million and almost every argument in the lawsuit is beyond laughable. The very first footnote, on the first page, completely misrepresents Section 230 of the CDA to a laughable degree:

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. See Title 47 U.S.C. § 230(f)(3). The word responsible ordinarily has a normative connotation. See The Oxford English Dictionary 742 (2nd ed. 1998) (stating one definition of responsible as “Morally accountable for one’s actions.”). As one authority puts it: “[W]hen we say, ‘Every man is responsible for his own actions,’ we do not think definitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the universe....” James C. Fernald, Funk & Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for responsibility in this context are blame, fault, guilt, and culpability. See Oxford American Writer’s Thesaurus 747 (2nd ed. 2008). Accordingly, to be “responsible” for the development of offensive content, such as defamation, one must be more than a neutral conduit for that content. One is not “responsible” for the development of offensive content if one’s conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is “responsible” for the use of that highway by a fleeing bank robber, even though the culprit’s escape was facilitated by the availability of the highway. Twitter is “responsible” for the development of offensive content on its platform because it in some way specifically encourages development of what is offensive about the content. FTC v. Accusearch, Inc. , 570 F.3d 1187, 1198-1199 (10th Cir. 2009) (citing Fair Housing of Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157, 1168 (9th Cir. 2008) (“a website helps to develop unlawful content …if it contributes materially to the alleged illegality of the conduct.”)

This is totally misrepresenting Section 230 and a variety of lawsuits around it. It focuses in, bizarrely, on the definition section 230(f)(3) ignoring what the law actually says in 230(c)(1) and (2) about the lack of liability for the platforms. Instead, it focuses narrowly on "responsible" as if that's all the law says. It's wrong and no court agrees with this analysis. Indeed, it misrepresents two key CDA 230 cases to try to make this point. The Accusearch case involved a databroker that sold user data, and tried to claim Section 230 immunity after the FTC sued. But as the court found, since Accusearch itself was selling the data, and that was the action the FTC went after the company for, it was liable for those actions, not the user-generated content. And, in the Roommates case, the 9th Circuit was pretty clear that while Roommates could be found liable for violating the Fair Housing Act, it would only be on the specific content that Roommates.com itself created (namely, a pulldown menu for users to disclose their sex, family status and sexual orientation -- which the court ruled could lead to discrimination). Again, in both cases, the law is specifically applied not to any of the content by users, but specifically to direct content or actions done by the platforms themselves.

Nunes is trying to use those cases to argue that Twitter loses its CDA 230 immunity because it's moderating content, because those moderation choices are actions, a la what happened in Accusearch and Roommates:

Twitter is an information content provider. Twitter creates and develops content in whole or in part, through a combination of means: (a) by explicit censorship of viewpoints with which it disagrees, (b) by shadow-banning conservatives, such as Plaintiff, (c) by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory – providing both a voice and financial incentive to the defamers – thereby facilitating defamation on its platform, (d) by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and (e) by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter Rules – essentially refusing to self-regulate – thereby selectively amplifying the message of defamers such as Mair, Devin Nunes’ Mom and Devin Nunes’ cow, and materially contributing to the libelousness of the hundreds of posts at issue in this action.

This interpretation literally ignores basically every Section 230 decision (other than the two it misreads entirely) and completely ignores the entire point of the law, which is to immunize platforms in response to their moderation choices. Remember, CDA 230 was passed in response to the ruling in Stratton Oakmont v. Prodigy that found Prodigy liable for moderation choices it had made. The entire point of the law is that making moderation choices for user content leaves you immune from liability.

Furthermore, there is no actual evidence of conservative bias on Twitter, and another lawsuit claiming the same thing got tossed out just last week. As for the claim of "shadowbanning," Nunes is again completely misrepresenting reality. Last year, we wrote about this (in the context of Devin Nunes grandstanding on this), but the claims of "shadowbanning conservatives" was based on a misleading report in Vice. There was a temporary glitch in Twitter's "autocomplete" feature, that meant that some users' names did not show up in the autocomplete pulldown, and some people noticed that some of those impacted were well known conservatives. That's it. They were not shadowbanned. It was a temporary glitch for a very tiny feature (autocomplete) that had no bearing on whether or not users could find those impacted. And it impacted over 100,000 users, not just conservatives.

The story we wrote last year mocked Nunes for insisting he was considering taking legal action over this, and we would have thought that maybe lawyers would have talked him off of this, but apparently not. In short, the entire legal basis for including Twitter in this lawsuit is nonsense.

And from there, the complaint gets even worse. Because most of the lawsuit is little snowflake Devin Nunes whining about how a couple of satirical Twitter accounts, as well as one Republican political commentator, mocked him mercilessly, and Nunes just can't take it. If you want to know how to get under Devin Nunes' insanely thin skin, he's just given the entire world a guide.

We seriously don't have enough time to go through all of the claims in the lawsuit, but suffice it to say almost all of them are (a) opinions, (b) opinions based on clearly disclosed facts, or (c) rhetorical hyperbole. And note: none of those are defamatory. Also, the complaints reveal what Nunes is most afraid of: people looking into his "family farm" that is so much a part of his origin story, as well as an investment he made in a Napa winery. While the lawsuit doesn't go after these two articles, he does seem to consider references to the following two articles magically defamatory. And therefore, you should probably join in with thousands of others people today in reading the following two articles from last year:

1. First up, an article in the Fresno Bee about Nunes investment in a Napa winery, with the following headline: "A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event." That can't look good. The details do show that it was merely a winery that Nunes had invested in, and there's no allegations that Nunes had anything to do with the yacht, cocaine or prostitutes, but Nunes has carefully tried to avoid commenting on it, leading to even more coverage. And Liz Mair keeps reminding him of all of this, leading Nunes to call the following tweet the "most egregious and defamatory" of her tweets towards Nunes:

This is not defamatory. The facts stated are not in dispute. The Fresno Bee wrote about the story. Nunes did invest in the winery. The winery was involved in a lawsuit where it was alleged that prostitution was used on a boat and it was alleged in the lawsuit that some of the prostitutes appeared to be underage.

2. Then we have this truly amazing story in Esquire by Ryan Lizza about how Devin Nunes' family sold their California farm, opened a new dairy farm in Rep. Steve King's district in Iowa, where nearly all of the farms in the area employ undocumented workers. The story is completely worth reading, and I would have never known about it, absent this lawsuit (there's a term for that...). Basically Lizza goes to Sibley, Iowa to try to track down why Nunes is so secretive about his family moving there, and discovers a friendly set of people in the town who readily admit that they think Steve King and Donald Trump's views on immigration are bad, and worry that ICE raiding the farms in the town would put all the farms out of business. But, then Lizza is basically chased out of town by Nunes family -- and, amazingly, at the same time a years-old article that Lizza had used to find out about the Nunes' farm in Iowa magically disappears from the internet.

Defendant, Devin Nunes’ Mom, is a person who, with Twitter’s consent, hijacked Nunes’ name, falsely impersonated Nunes’ mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes. Between February 2018 and March 2019, Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hateful, scandalous and vile statements about Nunes that without question violated Twitter’s Terms of Service and Rules, including a seemingly endless series of tweets that falsely accused Nunes of obstruction of justice, perjury, misuse of classified information, and other federal crimes

This is followed by a bunch of tweets from @DevinNunesMom, almost all of which are clearly rhetorical hyperbole, accusing Nunes of not caring about his district and of engaging in obstruction of justice (a claim based on some of Nunes' activity as Chair of the House Intelligence Committee, in which he seemed much more focused on protecting the President, rather than actually doing his job). And then there's all of this, none of which is really defamatory. It's just part of being a public person (indeed, an elected official) online:

In her endless barrage of tweets, Devin Nunes’ Mom maliciously attacked every aspect of Nunes’ character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman. Devin Nunes’ Mom stated that Nunes had turned out worse than Jacob Wohl; falsely accused Nunes of being a racist, having “white supremist friends” and distributing “disturbing inflammatory racial propaganda”; falsely accused Nunes of putting up a “Fake News MAGA” sign outside a Texas Holocaust museum; falsely stated that Nunes would probably join the “Proud Boys”, “if it weren’t for that unfortunate ‘no masturbating’ rule”; disparagingly called him a “presidential fluffer and swamp rat”; falsely stated that Nunes had brought “shame” to his family; repeatedly accused Nunes of the crime of treason, compared him to Benedict Arnold, and called him a “traitor”, “treasonous shitbag”, a “treasonous Putin shill”, working for the “Kremlin”; falsely stated that Nunes was “100% bought and sold. He has no interest remaining for his constituents”; falsely accused Nunes of being part of the President’s “taint” team; falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence; falsely accused Nunes of “secretly hat[ing] the people he’s supposed to serve”; falsely accused Nunes of being a “lying piece of shit”; falsely stated that Nunes would lose custody of his children and was going to “the pen”; falsely accused Nunes of receiving pay for undermining “American Democracy”; falsely stated that Nunes was “the most despicably craven GOP public official” and that “Devin might be a unscrupulous, craven, back-stabbing, charlatan and traitor, but he’s no Ted Cruz”; falsely stated that Nunes was “voted ‘Most Likely to Commit Treason’ in high school”; falsely stated that “The people of California’s Central Valley are upright folk who work hard, look you square in the eye and give you a firm handshake. And then there is @DevinNunes”; falsely stated that Nunes is “not ALL about deceiving people. He’s also about betraying his country and colluding with Russians”; stated “I don’t know about Baby Hitler, but would sure-as-shit abort baby Devin”; falsely stated that “Alpha Omega wines taste like treason”; falsely stated that “@DevinNunes wanted me to tell everyone that he’ll be releasing a pic soon to get ahead of that AMI thing, and that it only looks that way because of all the blow”; falsely suggested that Nunes might be willing to give the President a “blowjob”; falsely stated “@Devin Nunes look @SpeakerRyan is removing @Rep_Hunter from his committee seat because he’s corrupt and incompetent. I wonder why he let you keep yours?”; falsely accused Nunes of “covering up Trump’s conspiracy against the United States”; falsely accused Nunes of lying to Congress; falsely accused Nunes of suborning “perjury”; falsely stated that “@Devin Nunes is DEFINITELY a feckless cunt”; falsely stated that “[i]f you vote for @Devin Nunes the terrorists win”; falsely stated “please don’t call @DevinNunes compromised. He’s not at all. He’s a complete and total fucking traitor”; falsely stated that Nunes was a “spy” in Congress “passing along information to the subject of a federal investigation”; falsely stated that Nunes knows “a thing or two about throwing away evidence, don’t you Scabbers”; falsely claimed that Nunes was “WANTED” and hiding and “hopes he doesn’t get indicted”; falsely claimed that Nunes would “probably see an indictment before 2020”; and even falsely stated that Nunes has “herp-face”.

Seriously, there is way too much to comment on in there, but pretty sure none of that is defamatory. It's mocking and disparaging, and lots of it contains rhetorical hyperbole, but defamatory? How do you prove whether or not someone has a "her face"? Also, apparently Nunes would like it to be known that he thinks it breaks the law to refer to him as a "presidential fluffer and swamp rat." Also, the "taint team" reference apparently makes it clear that Nunes and his lawyer don't understand puns. Which, you know, not a good look.

And then the part that is getting the most attention of all:

Many of the tweets were vile and repulsive, including tweets that depicted Nunes engaged in sexual acts with the President:

Right.

On to Devin's Cow.

Defendant, “Devin Nunes’ cow”, a person who, with Twitter’s consent, created and maintains an account on Twitter (@DevinCow) for the sole purpose of attacking and defaming Nunes. [https://twitter.com/devincow?lang=en]. @DevinCow has 1,204 followers. Like Devin Nunes’ Mom, Devin Nunes’ cow engaged a vicious defamation campaign against Nunes that lasted over a year. Devin Nunes’ cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes, including the following: Nunes is a “treasonous cowpoke”; “prosecutors” were “investigating Devin Nunes”; “Nunes needs to be investigated. He knew the truth, yet conspired with a criminal, @realDonaldTrump, to conceal the facts from the investigation. Nunes is a criminal too”; “718 more days until your term is up, Devin. Unless Mueller indicts you first”; “724 more days, Devin, unless the indictment comes first”; “It’s on, Ranking Member Nunes. #nunesindictment”; “Devin Nunes is a traitor”; “Devin Nunes used Leadership PAC funds on luxury vacay in his family’s native Portugal”; Nunes hung out with the Proud Boys at a private invite-only fundraiser; “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison”; “Devin is whey over his head in crime … I bet @DevinNunes’ cocaine yacht and underage prostitutes won Trump over #AlphaOmega!”

Incredibly, the lawsuit also whines about two other satirical accounts mocking Nunes, but doesn't sue them:

Among these additional Twitter accounts are “Fire Devin Nunes” (@fireDevinNunes) and “Devin Nunes’ Grapes” (@DevinGrapes). The additional Twitter accounts followed the same pattern as @DevinNunesMom and @DevinCow, and published the same false and defamatory statements Nunes was involved in underage prostitution, etc. Fire Devin Nunes published memes of Nunes in prison attire. In a July 30, 2018 post, Devin Nunes’ cow retweeted the following:

Complaining that one of the satirical accounts mocking you retweeted another satirical account mocking you does not suggest you're a big believer in free speech, Nunes.

Anyway, two other points on all of this. As first pointed out by Gabriel Malor, the supposed free speech supporting Devin Nunes first argues that "The ability to use Twitter is a vital part of modern citizenship" and that "Twitter is essential for an individual to . . . engage in any level of political organizing in modern America" just a few paragraphs before demanding that Twitter should permanently suspend Liz Mair's account. It actually goes beyond that. It doesn't just say these accounts should be permanently suspended, but that all of their likes should be removed.

In order to protect Nunes’s property interests and his reputation, Nunes requests the Court (a) to Order Twitter to reveal the names and contact information of the persons behind the accounts “Devin Nunes’ Mom”, “Devin Nunes’ cow”, “Fire Devin Nunes” and “Devin Nunes Grapes”, and (b) to permanently enjoin and order Twitter to suspend @LizMair, @DevinNunesMom and @DevinCow and to deactivate all hyperlinks to all tweets, retweets, replies and likes by @LizMair, @DevinNunesMom and @DevinCow that contain false and defamatory statements about Nunes.

Yeah, you see, while Twitter can make moderation decisions on its own, no court can order such a result, as it would clearly violate the First Amendment. You know, that thing that Nunes is supposedly sworn to protect.

The other key point. As the lawsuit notes, the @DevinCow account had 1,204 followers when the lawsuit was filed. This morning, just 1 day after the lawsuit was filed, it currently has 106,000. And it will probably have more by the time you look at it. The @DevinNunesMom account has been suspended by Twitter, however. Still, congrats to Devin Nunes for telling lots of people about these accounts, and just what kinds of satire you are unable to live with, and which you insist requires people pay you $250 million for.

Despite the fact that both Twitter and Nunes are based in California, Nunes chose to file the lawsuit in a local court in Virginia. Twitter and the other defendants may be able to remove it to federal court, but Virginia's anti-SLAPP law is not nearly as strong as California's. In particular, Virginia's anti-SLAPP law does not do the one thing most important in anti-SLAPP statutes: allow the defendants in SLAPP suits to stop lawsuits before they get ridiculously expensive:

Unlike California and other states, the Virginia statute does not create a special procedure for filing anti-SLAPP motions requiring judge’s to conduct an early assessment of the plaintiff’s probability of success; there is no presumptive limitation of discovery, and no provision for an interlocutory appeal when anti-SLAPP motions are denied.

That means that, as ridiculous as this lawsuit obviously is, it may still end up costing the defendants a lot of money to get it tossed out. And, thus, we have a case in which an elected official is using the burdens of the legal system to tie up some of his critics in a wasteful, time-consuming, expensive mess that could take years to resolve. That's an incredibly shameful thing for a politician who literally supported a bill against "frivolous lawsuits." Devin Nunes is deserving of mockery for a variety of reasons, and this lawsuit is one of them.

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[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Or whatever.

Here's ICE's much vaguer take on the Fourth Amendment, according to documents obtained by Brent Oxley, a fired ICE officer.

Internal emails and other ICE documents he obtained through a Freedom of Information Act request, since reviewed by CNN, show that other officers across the five-state region where Oxley worked had improperly signed warrants on behalf of their supervisors -- especially on evenings or weekends. Some supervisors even gave their officers pre-signed blank warrants — in effect, illegally handing them the authority to begin the deportation process.

Oxley forged signatures of supervisors. Other ICE officers didn't go that far. Many simply phoned up the supervisor who was supposed to be reviewing the warrants -- you know, to ensure they were compliant with the Constitution -- and then signed them on their behalf. In all the cases reviewed by CNN, no one was following the rules.

The President claims the "crisis" at the southern border warrants a national emergency declaration. The job ICE does is, apparently, too important to be done correctly. The agency is cooking the books to make it appear as though the nation is overrun by dangerous immigrants. Simultaneously, ICE threw manpower and funding at creating a fake college so it could sweep up immigrants and visitors attempting to comply with the law.

This warrant process that can barely be called a "process" is resulting in the illegal detention of immigrants who haven't violated the law. The Fourth Amendment is supposed to limit government wrongdoing, but ICE officers appear to believe civil rights are inconveniences to be routed around. It wants to make the fun part of the job -- rounding up people and detaining them -- more efficient.

The process is detain first, ask questions later, if ever.

One ICE deportation officer in the Northwestern United States, who asked not to be named because he wasn't authorized to speak for the agency, said his supervisors were not reviewing and signing individual warrants, called I-200s, as prescribed.

"I've had two supervisors since the memo came out. Both do it different ways, neither in the way that's outlined in the policy," the officer said. "My first supervisor would just sign the I-200s; he'd leave them blank and I would fill in the name later. My current supervisor tells us to sign his name for him." Most supervisors in that office do the same, he added.

It's only after ICE has someone in custody that anyone conducts a review of the paperwork. Apparently the agency feels comfortable abusing the rights of non-citizens, even though these same protections are extended to them by the government. It's a collective shrug from ICE towards the Constitution the agency's officers are sworn to uphold.

Brent Oxley is no hero. He's not even a whistleblower. This misconduct has come to light because the union representing ICE officers is trying to get a man who forged supervisors' signatures on warrants his job back. All Oxley was trying to show was that ICE's Fourth Amendment violations are common practice. He wasn't trying to expose the agency's wrongdoing. He was simply trying to justify his own.

While Huawei should never be confused with a saint (what telecom company would be?) there's several problems with the effort. The biggest being that despite a decade of hand-wringing and one eighteen month investigation by the US government, there's still no public evidence Huawei uses its network gear to spy on Americans. That's not sitting well with countries we've asked to join along in the fun.

The UK, for example, recently noted that while some Huawei products can pose risks by nature of simply being low quality, they've yet to see any threat posed by Huawei that necessitates a global ban. That position has since been repeated by other allies who have been pointing out how despite years of bluster on this subject, they've yet to see the US government release the slightest bit of evidence supporting the allegation:

"European and Asian officials have complained privately that recent American intelligence briefings for allies did not share any sort of classified information that clearly demonstrated how the Chinese government used Huawei to steal information, according to people familiar with the discussions. European officials have told counterparts that if the United States has evidence the Chinese government has used its companies to do so, they should disclose it.

One senior European telecommunications executive said that no American officials had presented “actual facts” about China’s abuse of Huawei networks.

Of course this is all hidden behind claims that this information is classified. But how hard is it to redact and provide at least some information proving your point? These allegations have also been bubbling up in fits and starts for over a decade now, and not a single security expert or any government official has been able to provide any evidence whatsoever to prove their point. While it's certainly not impossible that Huawei helps the Chinese government spy, evidence is important. Can you imagine the hysteria on countless fronts if a US company like AT&T was banned from other countries without any supporting data?

Unmentioned in coverage of this hand-wringing about Huawei has been the fact that much of the hysteria on this front has been drummed up by US networking companies, who simply don't want to compete with cheaper Chinese gear. With countless global gear makers rushing toward the trough as wireless carriers build next-generation 5G wireless networks, these efforts have only intensified. US gearmakers and their favorite lawmakers have a good schtick going: profess China must be banned from all global telecom markets based on claims of spying, then hide behind national security when anybody asks for proof.

Also ignored is that all of the hysteria about Huawei obfuscates a larger security threat (much of it originating in China): the lack of security in shitty internet of things gear. At this point you don't really need Huawei to spy on Americans, since we're connecting millions of poorly secured devices to our home and business networks annually voluntarily. Gear that often lacks any sensible security countermeasures whatsoever.

Similarly ignored is the fact that the US has engaged in most of the behavior we accuse Huawei of, including having broken into Huawei to spy on company executives. You'll often see stories like this one highlighting China's nefarious attempts to tap into undersea cables. But the press ignores that the US has been engaged in its own undersea cable and satellite communications wiretapping efforts for decades. Many of these efforts began decades ago (like Echelon), and were ridiculed as tin-foil-hat fantasy until the Snowden documents were revealed.

Again, none of this is to defend China's actual abuses, or to suggest that Huawei hasn't engaged in bad behavior. But imposing a global ban on a telecom giant for spying based on no actual evidence remains a shaky proposition, and it's something countless supporters of the blackballing effort would be screaming about incessantly were the shoe on the other foot.

But, a funny thing has happened in the past few years that undermines the doom and gloom message: the recorded music business has been growing. Rapidly. And it's entirely due to the internet and all of the various services that the RIAA had been slamming for years. Indeed, it did seem notable when the RIAA put out its latest revenue numbers for 2018, showing the incredibly rabid growth over the past four years of the recorded music business. So I started taking an even closer look at what's happened over the past decade. Thankfully, the RIAA actually makes all of the data available, and so I put together this handy chart:

So, yes, things sort of bumbled along for the first few years of the past decade, but the last few years are ones of massive and incredibly rapid growth due to online streaming. The US recorded music business is right at about $10 billion (if you're interested, the live music business in the US is about the same, counting both ticket sales and sponsorship).

Now, you might say, well that's just the US, and Article 13 is about Europe. Thankfully, IFPI puts out similar numbers (counted slightly differently, unfortunately, so it's not an exact comparison). IFPI has not yet released its 2018 numbers, but looking at the report from last year you see that the global numbers show a pretty similar change, again, with things bottoming out a few years back, and then showing new growth, almost entirely from the rapid increase in streaming services. I expect when IFPI releases its 2018 numbers, we'll see just as dramatic a bump up as we see with the RIAA's US numbers:

So, it certainly looks like the internet (as some of us predicted...) has absolutely been the savior to the music business -- it just took the legacy companies hellishly long to embrace it.

But, again, I'm left wondering why is it that we need Article 13 again? To hear Axel Voss and other supporters talk about it, the recording industry is in a death spiral without it. Yet, the actual stats show things are going quite well and growing like gangbusters.

The latest of these, in yet another opposition Monster Energy lost, has the UK's IPO explaining to Monster Energy that it cannot prevent other companies from using the letter "M" prominently in their logos.

In a decision on Wednesday, March 6, the UK IP Office ruled that Monster Energy could not stop Robert Marchington from registering a trademark, finding there was no likelihood of confusion.

In its opposition, Monster relied on its earlier registered marks (EU numbers 2439068; 3227041; 12924973 and 14226765) which depict animal or monster scratch marks that create the letter ‘M’. The mark was for a pair of legs which took the shape of the letter ‘M’ and seemed to be taking a step forward.

In its decision the IPO said Marchington’s applied-for mark and Monster’s trademarks were visually similar only to a low degree. It said that the presence of the letter ‘M’ in both parties’ marks “does not convey any particular meaning”.

The fact that Monster Energy needed to be told as much serves as a wonderful barometer for how ridiculous Monster Energy trademark oppositions generally are. Again, when it comes to trademark law, the entire point is to prevent public confusion as to the source of goods. Monster Energy's logo is indeed distinctive, as it makes the letter "M" out of claw marks. This does not somehow grant exclusivity to the letter "M" to Monster Energy, however. Legs and clawmarks, in other words, are different.

As are the markets of soft drinks and alcohol, according to the IPO.

“Whilst soft drinks and alcoholic drinks are similar in nature in that they are both liquids for consumption, consumers will consider them to be different categories of goods,” the IPO said.

Additionally, it said that “syrups and preparations”, covered by Machington’s mark, cannot be considered a finish drink product, and therefore will not be in competition with Monster’s beverages.

I continue to be baffled as to how paying all of these billable hours, or the salaries and benefits for the in-house legal team, just to handle the load of trademark oppositions that routinely end up as losses, makes any financial sense.

That's what happened in the state of Washington. A vociferous government critic found himself targeted by a displeased politician who used the state's cyberstalking law to obtain a very restrictive protective order to silence his online nemesis. As the federal court notes in its decision [PDF], the speech the critic engaged in is the very reason for the First Amendment's existence. (via Courthouse News)

Rynearson is an online author and activist who regularly writes online posts and comments to the public related to civil liberties, including about police abuse and the expansion of executive power in the wake of September 11. Rynearson’s writings are often critical—and sometimes harshly so—of local public figures and government officials. These writings are well within the traditions of independent American political discourse, and are intended both to raise the awareness of other citizens regarding the civil-liberties issues that Rynearson writes about, and to hold civic and political leaders accountable to the community through pointed criticism. This sort of expression is at the very heart of political speech which the First Amendment most strongly protects.

Rynearson's online posts were highly critical of politicians he felt didn't condemn the indefinite imprisonment of foreigners, something authorized by the NDAA (National Defense Authorization Act). One politician he felt was too enthralled with indefinite detention was Clarence Moriwaki.

[I]n February 2017, Rynearson wrote a series of public posts on Facebook criticizing Clarence Moriwaki, the founder of the Bainbridge Island Japanese-American Exclusion Memorial (“Memorial”), for failing to criticize Governor Inslee and President Obama for voting for/signing the NDAA. The thrust of Rynearson’s posts was that Moriwaki should be removed from his role as board member and de facto spokesperson for the Memorial because Moriwaki used the lessons of the internment, and his role with the Memorial, to criticize Republican politicians (chiefly, President Trump) in many media articles or appearances related to the Memorial, but failed to criticize Democratic politicians.

As the court notes, Rynearson used "invective" and "ridicule" to make his points. Moriwaki reported this ridicule (which, as the court points out, did not contain obscenity or threats) to local law enforcement. This did not result in an arrest, but Rynearson received a letter from the prosecutor notifying him she would "revisit" the possibility of prosecuting him if he didn't shut the hell up.

This also resulted in Moriwaki obtaining a protective order against Rynearson -- one that decided the First Amendment simply didn't exist.

For a period of time, from March 2017 to January 2018, Rynearson was also subject to a civil protection order imposed by the Bainbridge Island Municipal Court based on posts critical of Moriwaki. Moriwaki v. Rynearson, No. 17-2-01463-1, 2018 WL 733811, at *12 (Wash. Sup. Ct. Jan. 10, 2018). The cyberstalking statute was one of the statutes invoked by the Municipal Court in imposing the protection order. Moriwaki, 2018 WL 733811, at *5. The order imposed sharp limits on Rynearson’s speech, such as barring the use of Moriwaki’s name in the titles or domain names of webpages.

This order was vacated by the same court after Rynearson's Constitutional challenge. Now, Rynearson is challenging the law itself, pointing out (very reasonably) that the law's unconstitutional restrictions could see him on the receiving end of future protective orders or criminal charges.

The federal court says Washington's law is unconstitutionally overbroad, threatening a whole lot of protected speech.

Section 9.61.260(1)(b)’s breadth—by the plain meaning of its words—includes protected speech that is not exempted from protection by any of the recognized areas just described. Section 9.61.260(1)(b) criminalizes a large range of non-obscene, non-threatening speech, based only on (1) purportedly bad intent and (2) repetition or anonymity.

The state couldn't come up with much to defend its bad law -- just a couple of unpublished opinions that don't say quite what the state imagines they say. The federal court offers its rebuttal, which only cites the highest court in the land.

[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.”

With that, the federal court declares the law unconstitutional, handing Rynearson an injunction preventing the state of Washington from using the law against him.

Based on the record before the Court it is highly likely that in the final analysis the Court will declare the provision is unconstitutional and therefore unenforceable. Anonymous speech uttered or typed with the intent to embarrass a person as here, is protected speech. The plain meaning of the italicized words render 9.61.260(1)(b) unconstitutional.

For the reasons given here, this Court concludes that RCW 9.61.260(1)(b) is facially unconstitutional.

The law is effectively dead. The only thing surprising about this is that the law has survived so long without being struck down. For 15 years, it's been illegal to "embarrass" people online. It took a politician abusing the law to silence a critic to finally get it struck down.

Such is not the case when it comes to Apple's recent trademark opposition of the logo of a political party in Norway.

Bryn Aarflot, a Norway-based patent and intellectual property prosecution firm representing Apple in the matter, formally objected to Fremskrittspartiet's trademark registration in a letter dated Feb. 26. Apple claims the political party's mark could be confused with five of its own registered trademarks. Further, the logo resembles or incorporates elements of well-known, established branding and is thus in violation of Norway's Trade Marks Act.

Registered with the Norwegian Industrial Property Office last November, Fremskrittspartiet's trademark overlays stylized "FR" iconography on a large red apple, complete with black stem and green leaf. The design is reminiscent of Apple's trademark, a two-dimensional rendering of an archetypal apple silhouette.

Is it really, though? Doing a Google image search, below is about as relevant a logo as I could find for Apple Inc.

And below is the image registered by Fremskrittspartiet.

Are those logos really so similar? Even if another Apple logo that is slightly more similar exists, are they really likely to be so similar so as to cause confusion that isn't born of the fact that Apple's logo is... an apple? And if we then layer on top of that the fact that this logo is being used by a political party and not a private enterprise, then what is the validity for this opposition at all? Did the party register the mark for the kinds of goods you'd expect a political party to produce, such as buttons and t-shirts and the like? Yup. Is anyone in Norway going to think any of that indicates that Apple had endorsed this political party, or was somehow now in the political party arena? Come on.

So this now all is pending a response from Fremskrittspartiet. If that response is anything other than, "Are you freaking kidding me?", I will be sorely disappointed.

ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

More than 80 law enforcement agencies in the US have agreed to share with US Immigration and Customs Enforcement (Ice) license plate information that supports its arrests and deportation efforts, according to the American Civil Liberties Union (ACLU), which obtained a trove of internal agency records.

The documents acquired by the ACLU show that Ice obtained access to a database with license plate information collected in dozens of counties across the United States – data that helped the agency to track people’s locations in real time. Emails revealed that police have also informally given driver information to immigration officers requesting those details in communications that the ACLU said appeared to violate local laws and Ice’s own privacy rules.

When the agency takes the formal, contracted path to ALPR data, it's running through two third parties: Vigilant, the leading manufacturer of plate readers, and Thomson Reuters, a multimedia conglomerate that has added data brokering to its portfolio of journalistic endeavors.

The original proposal limited ICE's access to the 50 biggest metropolitan areas. That's a lot of ground already, but the agreement allows local law enforcement in other areas to give ICE permission to browse their end of the Vigilant database. Not that it ultimately matters. Vigilant doesn't seem to worry too much about siloing off data. Most law enforcement agencies are sharing data with lots of other agencies already, so intermingling is an inevitability.

It also appears there's no expiration data on a lot of the data ICE is accessing. According to the documents, over 9,000 ICE agents have access to years a plate/location data, allowing them to reconstruct people's movements over a long period of time.

Whatever restrictions exist on ICE's access to Vigilant databases are easily avoided.

Emails showed that a police detective in Orange county, California, repeatedly conducted database searches in response to requests from an Ice specialist in criminal investigations. The two appear to have worked together frequently over several years, with the Ice employee providing details of the immigration investigations (such as information from a target’s Facebook page) and the local detective responding with license plate information.

“I am here for ya. :),” the detective wrote in one email to Ice, which included a report. In another exchange, after the Ice officer said “hate to ask” for more reports, the detective responded: “Come on, you don’t really hate to ask.. :).”

As the ACLU points out, these informal requests allow ICE to bypass the internal processes that are supposed to ensure access to this wealth of plate/location data is justified. The communications contained in these documents show ICE repeatedly ignoring these requirements.

At this point, everything will have to be fixed in post. Cops have been utilizing plate readers for years and Vigilant has been storing the billions of plate records generated every year for just as long. The DHS never needed to build a national license plate/location database. One was being built while it put on its little charade about respecting rights and citizens' freedom to move around the country without being surveilled.

The ACLU is demanding legislators enact more privacy protections for this data and engage in some actual oversight, but that ship has been sailing for years. ICE's access was an inevitability. It enacted privacy protections just so it could ignore them by asking local law enforcement to perform database searches. And it was all sold to the public with assurances ALPR tech would hunt down car thieves, kidnappers, and violent criminals. In reality, it's being used to track people who've overstayed their visas.

This has, of course, resulted in a lot of hand-wringing about the role of the internet in all of this. And I do think that there are many worthwhile conversations to be had about how internet platforms promote or highlight certain content over other content (though, of course, any attempt to really deal with that will almost certainly lead to more bogus accusations of "conservative bias" on these platforms).

But what was disturbing to me was how many people focused on the fact that the various internet platforms had a tough time getting rid of all of the copies of the livestream video that was posted of the attack. I saw multiple variations on the theme that "if the internet platforms really cared about it, they could block those videos," with the clear implication being that the platforms don't take this issue seriously. A particularly ill-informed variant on this was "if this video were covered by copyright, it would have been blocked." Of course, those of us who spend lots of time talking about the failures of using filters to try to block copyright-covered content know that's not even close to true.

What surprised and disappointed me was that this even came from people who should know better. The Washington Post's Drew Harwell lead the charge with a widely retweeted thread that lamented how many internet platforms carried aspects of the attack and questioned what "responsibility" the platforms had:

Harwell, along with multiple other Washington Post reporters, then put out an article entitled The New Zealand shooting shows how YouTube and Facebook spread hate and violent images -- yet again. It seems to lay the blame squarely on the feet of the tech platforms:

Friday’s slaughter in two New Zealand mosques played out as a dystopian reality show delivered by some of America’s biggest technology companies. YouTube, Facebook, Reddit and Twitter all had roles in publicizing the violence and, by extension, the hate-filled ideology behind it.

These companies — some of the richest, most technologically advanced in the world — failed to rapidly quell the spread of troubling content as it metastasized across platforms, bringing horrific images to internet users worldwide.

This is literally blaming the messenger, and distracting from those actually responsible (the horrible, despicable excuse for a human being who carried out the attack and the awful people who cheered him on), to instead blame the tools of communication that all of use. We use them because they are convenient and powerful. And that includes for horrific messages as well as nicer ones.

Harwell's colleague at the Washington Post, Margaret Sullivan, whose views I almost always find myself nodding in agreement to, also seemed strangely out of touch on this one, insisting the platforms need to "get serious."

Editorial judgment, often flawed, is not only possible. It’s necessary.

The scale and speed of the digital world obviously complicates that immensely. But saying, in essence, “we can’t help it” and “that’s not our job” are not acceptable answers.

Friday’s massacre should force the major platforms — which are really media companies, though they don’t want to admit it — to get serious.

As violence goes more and more viral, tech companies need to deal with the crisis that they have helped create.

They must figure out ways to be responsible global citizens as well as profitmaking machines.

Another tweet, from Alex Hern, a technology reporter at the Guardian literally suggested that YouTube and Facebook need to hire a single person to keep doing searches to delete videos:

If you can't read that, it says:

it is days like today that I just do not understand why YouTube and Facebook don't hire one person--just one--to sit there searching for "New Zealand terror attack" and just delete the obvious reposts that keep popping up on that search term.

There were probably a million tweets trying to make this point in a similar way. The general theme is that the internet platforms don't care about this stuff, and that they optimize for profits over the good of society. And, while that may have been an accurate description a decade ago, it has not been true in a long, long time. The problem, as we've been discussing here on Techdirt for a while, is that content moderation at scale is impossible to get right. It is not just "more difficult," it is difficult in the sense that it will never be acceptable to the people who are complaining.

Part of that is because human beings are flawed. And some humans are awful people. And they will do awful things. But we don't blame "radio" for Hitler (Godwin'd!) just because it was a tool the Nazis used. We recognize that, in every generation, there may be terrible people who do terrible things, using the technologies of the day.

But the bigger issue is that both the scale and challenges in moderating content like this presents a much more difficult question that most people (including, apparently, tech reporters) understand. Over the weekend, Facebook noted that it had removed 1.5 million copies of the video with 1.2 million being blocked from upload entirely. That means another 300,000 had to be found, reviewed and then a call made on whether to delete it.

One person hitting search over and over again is not going to track down over a million copies (or even 300,000) of a video. That's just not how it works. Also, think about this for a second: if there were 1.5 million attempts to upload the video (just on Facebook), think how many (despicable) people are out there trying to spread this content. It is a lot more than these companies could reasonably hire or should want to hire solely for the purpose of policing the speech of those despicable individuals.

And, even if they were doing the searching, it raises other challenges. Motherboard has a good overview of how Facebook handles moderation in these circumstances, which already shows how difficult some of the challenges are. But even more interesting is a piece by Julia Alexander at the Verge explaining that there's a lot more to deleting those videos than just flagging and deleting. Alexander specifically looks at YouTube and how it handles these things:

Exact re-uploads of the video will be banned by YouTube, but videos that contain clips of the footage have to be sent to human moderators for review, The Verge has learned. Part of that is to ensure that news videos that use a portion of the video for their segments aren’t removed in the process.

YouTube’s safety team thinks of it as a balancing act, according to sources familiar with their thinking. For major news events like yesterday’s shooting, YouTube’s team uses a system that’s similar to its copyright tool, Content ID, but not exactly the same. It searches re-uploaded versions of the original video for similar metadata and imagery. If it’s an unedited re-upload, it’s removed. If it’s edited, the tool flags it to a team of human moderators, both full-time employees at YouTube and contractors, who determine if the video violates the company’s policies.

This makes sense -- and it's something we talk about in the copyright context all the time. It's one thing to flag and block exact replica videos, but if they're somewhat edited, they need to be reviewed. They could be news reporting or commentary or some other perfectly reasonable use of the video. There are also, potentially, questions about if the videos are evidence or documentation of a crime that need to be considered before just deleting things willy nilly.

And, of course, today (many days after mocking YouTube for not taking down these videos) the Washington Post comes back with some actual reporting on how much effort YouTube actually put into stopping the video and how difficult it was. Suffice it to say, they had more than one person working on this.

[Neal] Mohan, YouTube’s chief product officer, had assembled his war room — a group of senior executives known internally as “incident commanders” who jump into crises, such as when footage of a suicide or shooting spreads online.

The team worked through the night, trying to identify and remove tens of thousands of videos — many repackaged or recut versions of the original footage that showed the horrific murders. As soon as the group took down one, another would appear, as quickly as one per second in the hours after the shooting, Mohan said in an interview.

As its efforts faltered, the team finally took unprecedented steps — including temporarily disabling several search functions and cutting off human review features to speed the removal of videos flagged by automated systems. Many of the new clips were altered in ways that outsmarted the company’s detection systems.

But, either way, contrary to the arguments that the companies don't care or don't prioritize this, they absolutely do. It's just that they are dealing with an incredible level of scale, with many of the videos (at least 300,000 in the case of Facebook and one per second in the case of YouTube) likely needing to be reviewed and a judgment call needing to be made whether or not that version should be kept up or taken down. The idea that either company could just snap their fingers and fix this is pure fantasy.

Alex Stamos, Facebook's former Chief Security Officer put together a thoughtful thread on how impossible this situation is for the companies:

There's more in the thread, which is worth reading, but the short version is that this is not nearly as easy a problem to solve as many people seem to think.

And, as Stamos hints at in his thread, even as everyone was complaining about this content showing up on internet platforms, people don't seem to have had the same reaction to the fact that many in the media were spreading the same stuff. Rupert Murdoch's Sky News aired the video. Or as media analyst Thomas Baekdal noted:

Baekdal later wrote a very good thread about how wrong this attack on social media has been. He highlights how many news orgs -- at the same time they were criticizing YouTube and Facebook -- were posting screenshots or snippets of the livestream themselves, and promoting the details of the attacker's mad rantings. The whole thread is worth reading, but the conclusion is the key. By focusing the blame on the messengers -- the internet platforms -- we distract from solving real problems:

I'm sorry media people. As a media analyst, I love you. I want the media to have the best future possible. But this constant one-sided and often completely distorted form of anti-tech lobbyism is simply dishonest. Worse, by making this all about YouTube and Facebook, we mislead people into thinking that this entire problem is something that is just easily solved by just having YouTube use their copyright algorithms ... and then all the terrorist and hate speech would go away. It won't. This makes people passive, because it allows them to think that this problem is just an external one by the tech companies, so we (in society or in the media) don't have to do anything ourselves. But we do. This *is* a societal problem. We all have to step up here. Stop this one-sided anti-tech lobbyism. It's incredibly dishonest. It misleads the public, it makes the problem much harder to solve, and it tries to hide our own role. It's so frustrating to look at every day. Yes, the tech companies need to do better, but...my god...so do we!

As for the arguments, such as Sullivan's, that the "answer" to this is that social media platforms need to retain "editorial control" and review content -- as demonstrated above, that's nonsense given the scale. It's difficult enough to try to block a single video, but imagine having to go through absolutely everything. As Aaron Ross Powell noted in another good thread, just because editing works for newspapers, that doesn't make sense when we're talking about platforms for communicating among billions of people.

The Washington Post exercises editorial control, yes. But how much does it publish? A hundred new things a day? Maybe? Compared to: "Every 60 seconds on Facebook: 510,000 comments are posted, 293,000 statuses are updated, and 136,000 photos are uploaded." If those numbers are correct, that's 422 *million* status updates alone every day. How many editors would it take to exercises the Washington Post's level of control over those? Facebook's big, but not that big. You can filter profanity, yes. And other key words. You can use machine learning to help. But bad actors are good at figuring out what gets through filters. The only way to be sure is to do what the Post does: Look at everything. And at 422 million posts a day, even if only a tiny fraction of those are ultimately violence promoting, and even if only a tiny fraction of *those* make it through editorial, you've still got more than enough to radicalize the occasional murderous madman.

Social media is not traditional media. It's so much bigger and more open that you can't analogize from one to the other. It would be impossible to run social media like the Washington Post.

No matter how much people who don't grasp the difference tell us "to get serious."

And that gets to one final point I'd like to make on this. Beyond the difficulty of taking down the video/madman rantings after the fact, a few complained that the content was even allowed to be posted in the first place. The attacker clearly planned a media strategy, and that meant releasing some of the content before the attack to eager followers who cheered him on live. But if you think it's easy to spot that content in real time, you haven't spent much time on the internet. And, all of this is made even worse by the fact that a lot of online behavior is performative, rather than serious. Lots of shitposting is just that: shitposting. Recognizing where it's going to cross over into real behavior is not nearly as easy as some seem to think.

And if you argue that it shouldn't matter and we should just start shutting down people saying crazy stuff online, well, I'd suggest listening to the latest episode of NPR's Invisibilia podcast called Post, Shoot, which focuses on violence in Wilmington, Delaware, and how some of it crossed over from kids trash talking each other on Instagram. But then the story goes further, and notes that, in response, police have basically started locking up black and brown kids, claiming evidence of gang activity, for merely posting Instagram photos with guns or money. In most cases, the kids are just showing off. It's kind of a thing kids do. They're not actually gangsters, they're just pretending to be gangsters, because kids do that. But they're being locked up for posing as gangsters. And that's not helping anyone.

Social media is a reflection of reality and reality is hellishly messy. People are flawed to varying degrees, and a certain percentage are despicable, horrible people. I'd like to believe it's a small percentage, but they do exist. And we shouldn't blame the technology they use.

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After a round of motions, the court has ruled in favor of everyone being sued. The decision [PDF] makes it clear none of the arguments made by the plaintiffs hold water, much less achieve complete coherence. The only thing the court agrees with is that Loomer and Freedom Watch have standing to bring the suit. But standing is only worth something when your arguments have merit.

While they have established standing, the Plaintiffs have failed to state viable legal claims. Consider first their Sherman Act arguments. Section 1 of the Sherman Act states that “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the 7 several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. “Independent action is not prescribed” by § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760 (1984). So a valid claim must allege that the Platforms “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Id. at 764. The Plaintiffs’ claim fails to do this.

True, the Amended Complaint repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. See, e.g., Am. Compl. 4, 5, 12, 17. But it offers only these conclusory statements to suggest the existence of such an agreement. It includes no allegations, for example, that any of the Platforms met or otherwise communicated an intent to collectively suppress conservative content.

A conspiracy requires the participation of conspirators. But some of the alleged conspirators still played ball with the plaintiffs, which undercuts the conspiracy needed to sufficiently allege antitrust violations.

The Plaintiffs also suggest that the Platforms “have engaged in ‘conscious parallelism’ and in concert mimicked each others’ refusal to deal with Freedom Watch and Ms. Loomer.” Am. Compl. 21. But Freedom Watch admits that it “has and still does pay Google and YouTube, Facebook and the other Defendants for services.” Id. at 11. This admission contradicts assertions of a coordinated “refusal to deal” with the Plaintiffs.

The complaint fares no better when dealing with the second antitrust allegation -- the supposed "monopoly" power of the [checks notes] four defendants being sued. As the court points out, the plaintiffs could have brought some data to their legal fight. Instead, they chose to bring conclusory statements and assertions about "leftist agendas."

[T]he Plaintiffs offer no market share data for any of the Platforms in either the local or worldwide markets for media and news publications. Instead, they make claims about the “social network global market,” the “social networking advertising revenue” market, the “digital ad revenues” market, and the “mobile ad market.” Am. Compl. 18. And though the Amended Complaint states that “59% of Twitter users get their news through the Twitter platform” and that “48% of all American adults [get] their news from Facebook,” it offers no support for the notion that either firm has achieved or tried to achieve monopolization of the nationwide media and news publications market.

The allegations claiming that kicking Loomer/Freedom Watch violated DC's Human Rights Act is just as ridiculous. The court points out the law refers only to physical public spaces and it's not willing to re-litigate a DC circuit opinion and/or rewrite local law on behalf of the plaintiffs.

Finally, the court addresses the most ridiculous of all the lawsuit's assertion: that moderation decisions by social media services somehow violated the plaintiffs' First Amendment rights. The plaintiffs cite the Packingham decision by the Supreme Court, completely misreading that decision's findings. In that case, the court said the government couldn't prevent people from accessing internet services. Loomer and Klayman pretend it actually said platforms can't ban people from accessing their platforms. The district court points out the distinction the plaintiffs are ignoring.

True, in Packingham, the Supreme Court recognized that Facebook and Twitter are among the “most important places (in a spatial sense) for the exchange of views” in society today. 137 S. Ct. at 1735. But the case involved a challenge to a state law that limited the speech rights of certain criminals on these platforms. Id. at 1738. It did not create a new cause of action against a private entity for an alleged First Amendment violation.

The second citation from the plaintiffs isn't any better, and the court again restates the obvious: moderation decisions by private companies are not actions taken by government entities, no matter how many users the platforms accommodate.

[T]he Plaintiffs here allege no nexus between the Platforms’ actions and a function traditionally reserved exclusively to the state. Nor do they contend that the Platforms were designated by the state to perform a governmental operation. Instead, the Amended Complaint focuses on the Platforms’ alleged suppression of conservative political content. It details, for instance, the seemingly disparate treatment of conservative news publishers on Facebook and of conservative commentators on Twitter. Am. Compl. 4-5. But while selective censorship of the kind alleged by the Plaintiffs may be antithetical to the American tradition of freedom of speech, it is not actionable under the First Amendment unless perpetrated by a state actor. Thus, their claim must be dismissed.

This will surely be appealed. But the outcome will be the same. Actions by private companies can't violate rights and the existence of multiple social media platforms simultaneously preemptively defeats most antitrust allegations.

Some conservatives are convinced there's a leftist agenda being played out in social media. But rather than fight it with more speech, they're trying to bring the government in to fix these perceived problems. Whatever floats your speech boat, but remember, any "fixes" you get will remain in place for years -- even if the perceived pendulum swings the other way. The rules that "level the playing field" will come back to bite these agitators in their asses if they ever manage to talk a court or a bunch of legislators into taking their bad ideas seriously.

Throughout all of the hype, carriers have been really hesitant to discuss what's perhaps the most important question: how much will 5G cost? After all, next-generation connectivity is only going to help boost broadband competition if it's both ubiquitous and affordable, two things the US wireless industry has never really been known for. And now that the carrier lobbyists have effectively convinced the Pai FCC to neuter itself, that question has only become more important.

It's starting to become clear why carriers haven't wanted to much talk about price. AT&T's early offerings haven't been much to write home about. And this week Verizon took the wraps off the pricing for its mobile 5G offerings, noting that consumers will need to pay $10 extra per month across the board if they're interested in using it:

"Verizon has decided to treat its emerging mobile 5G network as a premium service that customers should pay more to access. The company is debuting its mobile 5G network next month at select locations in Chicago and Minneapolis, but customers wishing to use it will need a new phone and a new, costlier plan.

Verizon confirmed its new Mobile 5G service will require a new premium unlimited plan, starting at $85. That is $10 more than Verizon’s current GoUnlimited plan. Customers will also need a Motorola Moto Z3 phone — currently the only model compatible with Verizon’s 5G network, and a special 5G Moto Mod attachment, sold separately."

In other words, 5G will cost you extra. Which isn't surprising if you've watched Verizon at all over the last decade or two.

Granted some will try and claim that Verizon should charge more due to the high costs of 5G deployment. That ignores the fact that US consumers already pay some of the highest prices for 4G LTE mobile data in the developed world. That also ignores that Verizon just nabbed incalculable countless billions from the Trump tax cuts and a litany of policy favors from the FCC, money the company has already acknowledged won't be put back into the network. That money was, if you have a memory, supposed to go toward significant new jobs and network investment, according to Verizon.

Verizon's charging more because it doesn't believe it will be adequately punished by competitors for doing so. And it doesn't worry about competition because while the wireless sector (including T-Mobile) talks a good game, they still usually refuse to seriously compete on price. And with the looming Sprint and T-Mobile merger preparing to reduce the total number of major competitors in the space from four to three, that's not getting better anytime soon.

That brings us to the other major question users should be asking about 5G. In a post net neutrality landscape where the FCC no longer seriously has the authority to hold wireless carriers accountable, what kind of annoying restrictions will be placed on these lines? Verizon (who already charges some "unlimited" data customers more to stream video in HD) hasn't affixed any on these early 5G markets yet, but should the FCC win its looming lawsuit over the net neutrality repeal, all bets are off.

Nope. The truth is actually exactly the opposite of what you just said. According to Google, 99.95% of all DMCA notices are not only bogus, but one specific flavor of bogus. Everything else (including all of the other kinds of bogus DMCA notices!) is included in the last 0.05%. Notices targeting legitimate infringement are so rare as to be statistically almost nonexistent.

Legitimate takedowns truly are the anomaly; the DMCA takedown program is used entirely (or close enough as makes no difference) for abuse, and therefore needs to be done away with.

In second place, we've got That One Guy tackling Axel Voss's notion that maybe YouTube shouldn't exist:

Let the purge begin

If 'it can be used for X, therefore it was created for X, and needs to be treated as though it's only used for X' is the idea he wants to run with then forget just gutting the internet, time to take a chainsaw to other industries too.

Cars can be used to commit crimes, therefore they need to be treated as though their only use is for committing crimes and outlawed.
The roads that cars travel on can be used to facilitate crimes...
Phones can be used...
The mail can be used...
Stores selling pretty much anything can result in crimes...

"Everyone has these obligations. They have created a business model with the property of other people – on copyright protected works."

Funny thing is, he's technically correct here, just not in the grossly dishonest way he intends it as. Yes, platforms like YT are built upon copyright protected works, because barring public domain works everything is copyright protected, and when someone uploads a work technically YT and the like are benefiting thanks to 'property of other people', generally the same person who uploaded the work.

He's trying to conflate two very different things here, infringing works that wouldn't fall under fair use and aren't owned by the person who uploaded them, and works which would fall under fair use or are owned by the person who uploaded them, and acting as though the sites were created for the former rather than the latter.

At best he comes out yet again looking like an ignorant buffoon, but far more likely I'd say is that this is yet another example where he'll say whatever he things will benefit him the most at any given moment, though he may have overstepped himself here, as making clear that YT is definitely in the cross-hairs is likely to cause a notable backlash.

For editor's choice on the insightful side, we start out with Michael Barclay raising an important point about the fair use ruling for a Dr. Seuss-Star Trek mashup:

Oracle v. Google causing mischief again

This case is another example of how dangerous and harmful the Oracle v. Google opinions are. The district court in this case is in the Ninth Circuit, and there are plenty of Ninth Circuit fair use decisions to guide its district courts. Since those cases apparently weren't working for the plaintiff, it instead cited the Federal Circuit's Oracle opinions and argued that they should control the case.

What's worse here is that the district court didn't reject the plaintiff's argument out of hand. The district court should have said, "Oracle isn't binding, rather Ninth Circuit law is binding." Instead, the district court treated Oracle as controlling law, but was able to distinguish it on the facts.

If the Supreme Court doesn't review the Oracle decisions, we can expect them to be cited in many future cases, instead of Ninth Circuit law, and in cases where Oracle can't be meaningfully distinguished on its facts.

(Disclosure: I'm counsel of record on an amicus brief asking the Supreme Court to review Oracle v. Google.)

Next, we've got cpt kangarooski with a little copyright lesson:

I’m a lawyer.

I can tell you that this:

Queen Anne establishes copyright to protect authors FROM a public that was stealing their work.

isn’t true. Anne herself was not known to be particularly involved in the passage of the law. It’s just named that because she was Queen at the time. It was the particularly vigorous Parliament of the day that did it. And it wasn’t at all to protect authors from the public; the public didn’t own printing pressses. It was to impose order on the publishers (who had lost their monopoly in the 1690s) while not restoring their power to what it had been. This meant vesting rights in someone else, and authors were a good prospect for that. It didn’t help authors much — they still tended to get ripped off by publishers as they do to the present day. It also helped the public by establishing the public domain and limiting the scope and duration of the rights Parliament doled out.

Even the American version of copyright law uses this limited window to ensure that content creators are compensated

Bzzt, wrong. No one ensures compensation; most works have no economic value whatsoever, and of the remainder most have no copyright-related economic value. Authors go without compensation all the time; why do you think there’s a stereotype of starving artists? Copyright simply directs some of the revenues associated with a work to the copyright holder. How much revenue there is and who gets shares along the way is not guaranteed. Usually it’s zero or thereabouts.

copyright just isn't doing the job for which it was intended, due to piracy, which is why we now have things like Article 13.

Nah, that’s bullshit.

Over on the funny side, our first place winner is crade with some blunt sarcasm in response to a comment about the Yelp-for-MAGAs app being taken down due to security flaws:

You heard wrong. It was actually due to a left-wing conspiracy to suppress conservative speech.

In second place, we've got an anonymous take on the Oh The Places You'll Boldly Go mashup, and another Suess-Lovecraft mashup:

Just be glad the Cthulhu Estate isn't angry with you. The Seuss estate at least has to work within the bounds of the law. The other side won't even bother staying within the bounds of reality.

For editor's choice on the funny side, why not start with Bruce C. offering one more Cthulhu joke:

They probably called it that to avoid the inevitable lawsuit if they called it "Horton hears a Cthulhu".

Finally, we've got an anonymous headline for the online reputation management company that brags about absuing copyright to get bad reviews taken down:

Work at home lawyer uses this one trick to get anything you want taken off the internet! Judges hate him!

That's all for this week, folks!