How Pirates Shaped The Internet As We Know It

from the talk-like-a-pirate-day dept

Today is “International Talk like a Pirate Day.” While it’s a lot of fun to act like a pirate, drink rum and catch up on Errol Flynn movies, piracy is also a serious issue with real economic and legal significance. As electronic devices become an increasingly ubiquitous part of our lives, the content we consume has moved from analog to digital. This has made copying – as well as pirating – increasingly easy and prevalent.

Adding fuel to the flames of this rising “pirate generation” has been the content industry’s recalcitrant and often combative attitude toward digital markets. Piracy, and the reactions to it, has had an immense impact on the daily lives of ordinary Americans, shaping their digital experience by determining how they can share, transfer and consume content.

As soon as electronic storage and communication technology was sufficiently developed, digital piracy became accessible. Whether it’s a song, movie, video game or other piece of software, you could suddenly reproduce it without having to steal it off a shelf or obtain any specialized machinery to counterfeit it. Additionally, if you wanted to listen to an mp3 of the latest Britney Spears album on your computer, there weren’t many lawful options. This led to a surge in online piracy and helped foster a culture of online file-sharing.

Out of this period came some ridiculous anti-piracy campaigns, but also major legislation both good and bad (such as the Digital Millennium Copyright Act, the Sonny Bono Copyright Term Extension Act and the Communications Decency Act) as well as legal battles that would set key precedents for how we access the digital world.

The music industry historically has a reputation for being hostile to, or at least slow to embrace, digital markets. Yet there were also some major artists who were early innovators in the space.

Before Spotify or iTunes, there was BowieNet. This music-focused internet service provider launched in July 1998 and gave users 5MB of space to create and share their own websites, content and chat. On BowieNet, according to Ars Technica: “[f]ans could get access to unreleased music, artwork, live chats, first-in-line tickets, backstage access, tickets to private, fan club-only concerts.” David Bowie saw the potential to help his fan base access his content and discuss it in a social way in the early days of the internet, before Facebook or Myspace. He remarked at the time: “If I was 19 again, I’d bypass music and go right to the internet.”

Bowie wasn’t the only early music pioneer of the internet. Prince was also an early unsung hero. In the early 2000s, he created NPG Music Group, later Lotusflow3r. He even won a Webby Lifetime Achievement Award in 2006. Unlike BowieNet, NPG and later Lotusflow3r provided releases of full albums.

As musicians and users were experimenting with new ways to share content on the internet, the United States was working with other World Intellectual Property Organization (WIPO) member countries to create the most comprehensive “digital” update to the Copyright Act. In 1998, President Clinton signed into law the Digital Millennium Copyright Act, which implemented U.S. WIPO treaty obligations, as well as several other significant titles (including the Vessel Hull Design Protection Act – which pirates of the nautical variety might care about). Of particular importance were the sections providing for “safe harbor” (Sec. 512), which protected service providers from infringing content generated by their users, and “anti-circumvention” (Sec. 1201), which was meant to stop pirates from hacking digital rights management (DRM) and similar restriction technologies.

Indeed, it has not been smooth sailing. The DMCA has subsequently generated great controversy from civil society groups, internet companies and the content industry itself. As Cary Sherman, chairman and CEO of Recording Industry Association of America, stated back in 2015:

Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless.

While lawmakers were hard at work trying to find ways to quell online piracy, the courts weren’t taking a nap. Indeed, going back to the 1980s, there were important judicial fights that would set the stage for how content would be handled on our electronic devices.

The U.S. Supreme Court’s 1984 Sony Corp. of America v Universal City Studios Inc. decision coined what is known as “time shifting,” referring to a user’s ability to record a live show using the Betamax to watch it later. The court’s decision set the precedent that a manufacturer would not be held liable for any contributory negligence or potential infringement where they did not have actual knowledge of infringement and their devices were sold for a legitimate, non-infringing purpose. As Justice John Paul Stevens wrote in the majority opinion:

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.

But not everyone was so enthusiastic. Jack Valenti, former president of the Motion Picture Association of America said in a congressional hearing two years prior [regarding VHS technology]:

We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

The 9th U.S. Circuit Court of Appeals would take another approach in 2000s A&M Records v Napster. The court affirmed the district court’s ruling that peer-to-peer services could be held for contributory infringement and vicarious liability. Even though their service merely facilitated the exchange of music as an intermediary, they were on the hook. Judge Marilyn Hall Patel wrote in the district court’s ruling:

…virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music; as much as eighty-seven percent of the files available on Napster may be copyrighted, and more than seventy percent may be owned or administered by plaintiffs

Napster lodged several defenses, including fair use, but the most important (in lieu of the Sony decision) was the concept of “space-shifting,” referring to the process of a user converting a compact disc recording to mp3 files, then using Napster to transfer the music to a different computer. Patel concluded Sony did not apply, because Napster retained control over their product, unlike Sony’s Betamax, which was manufactured and sold, but not actively monitored.
The courts would continue ruling in a similar manner as other peer-to-peer services found themselves in the courtroom. At times, users would be targeted. And in the 2003 case of In re: Aimster, the pirates’ bluntness for wanting to bring the music industry to its knees did not help the situation

What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people’s computers…. I suggest you accept aimster for what it is, an unrestricted music file sharing database – (posted by zhardoum, May 18, 2001)

Naturally with all of the music-sharing services were being shut down, the pirates found a new way to connect, share files and shape the industry. Which brings us to BitTorrent and websites like The Pirate Bay and Swepiracy. Torrenting does not require a central server, does not require direct streaming from one peer to another and the host does not contain any full file contents. All of the content received is from other users.

Sweden brought Pirate Bay to trial for both civil and criminal penalties. Per E. Samuelson, the site’s attorney, lodged the now-famous (and familiar, for U.S. copyright scholars) King Kong defense:

EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people.

The defense was unsuccessful. Which brings many questions to mind for future cases — how will courts begin to rule with such complex systems of file transfer as fragmented torrents? Targeting users is widely unpopular, especially in the United States, where statutory penalties range from $750 to $300,000 per willful infringing use and $200 to $150,000 for non-willful infringement.

Efforts around the world have continually been made to combat piracy. But maybe it’s time we take a fresh look at the market. As the Copia Institute observed in a recent report, whenever there are new ways to share content legally, users ultimately respond by employing those technologies.

On this International Talk like a Pirate Day, let’s take a moment to remember the pirates and how they have helped shape the internet era. While CD sales and digital downloads may be declining, new streaming services are on the rise (vinyl records are also doing remarkably well). The digital revolution has, indeed, changed how we consume and access our music. It has given us access to (nearly) everything, through services like Spotify and Apple music, at a reasonable price and with unparalleled convenience.

From the consumer’s perspective, you now carry hundreds of hours of music on your phone and listen to it whenever you want – no need for one of those bulky CD binders. The slot where the CD used to go in your car is now an auxiliary cable jack.

From an artist perspective’s, these are new challenges that require adaptation. Particularly in the case of music licensing, our pre-existing laws are unnecessarily complex, cumbersome and antiquated. However, innovative technologies and services are not to blame. Instead, we should seek new and equally innovative ways for artists to be compensated through more direct and transparent payments (such as Ujo).

While our copyright laws are far from perfect, we still have substantial freedom to remix, repurpose and share creative content online in a social context. This is essential to online free expression, digital commerce and the proper functioning of the internet itself. As additional discussions in Congress and in the courts move forward, let’s make sure we keep it that way.

Obtained from the Library of Congress: http://www.loc.gov/exhibits/bobhope/vaude.html

This post was “pirated” from the R Street blog

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Comments on “How Pirates Shaped The Internet As We Know It”

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44 Comments
Ehud Gavronsays:

Piracy

Piracy has nothing to do with copying content.

Piracy is the taking of someone’s property, usually at sea, to the detriment of the victim. I understand Big Media has managed to get public UJC dictionaries to add “oh and also when they copy our stuff.” It is not.

In piracy, only one party gets to have that property; the other is forever deprived of it; there’s also a potential loss of life or limb. Pirates didn’t just drink rum and sing a lot (they did the former to remain compliant and they did not do the latter). They killed people and TOOK things. Not “made exact identical reproductions” lol.

That is nothing like the “reproduction of content” and no matter how much Gertruding you do to pretend you don’t go for Big Media’s lie, you’ve begged the question on your headline and the premise.

Piracy has nothing to do with copying content.

Any attempt to beg that question or pretend otherwise is to accept the lie that Big Media has been selling since Jack Valenti wanted to kill the VCR.

It’s not 1984. The VCR did not kill hollywood. Copying is not piracy.

Regards

Ehud Gavron
Tucson AZ

Anonymoussays:

Re: Piracy

Of course, the RIAA only helped by going full retard, using not only words like “theft” to describe “piracy”, but also “rape”.

And now that they’ve realized that everything they’ve done in the open has made them look ridiculous they now have to resort to lobbying millions of dollars at the government. (Which, mysteriously, have somehow escaped the devastation and starvation pirates have allegedly visited upon them!)

Anonymoussays:

Re: Piracy

I was popping into the comments to write “Show me a pirate, and I’ll show you a violent man on a boat with an AK-47.” but I see that I’ve been beaten to the punch.

It’s important to get the terminology right, and not indulge in this nonsense, even if it’s been repeated so many times by the industry that media and politicians have all jumped on board.

Anonymoussays:

Re: Piracy

Hear hear.

One option that could be arranged is for those who have deliberately associated copying with piracy (music and film executives anyone) to take a nice boat trip into the various African and Asian waters that are common locations for actual pirates and see if these meetings change their viewpoint on what real piracy is. Particularly if they lose the shirts off their backs and the ability to continue breathing.

Robert Beckmansays:

Re: Re: Piracy

“Particularly if they lose the shirts off their backs and the ability to continue breathing.”

What, you want actual zombie MPAA/RIAA as opposed to the current rotting, diseased, shambling hulk they are now?

I’m good with that, we know how to kill real zombies, but these corporate zombies that just won’t die are tough.

Whateversays:

Re: Piracy

Sorry to say, but your argument is without meaning, because you are looking at the wrong place.

Is copying money a crime? it’s just copying. Oh wait, it is.

See, it’s easy to look at the mechanism and say “the machine itself isn’t breaking the law”. You can use the machine to turn out copies of your primary school doodles. That would be fine. Start trying to bang out copies of money and you are in trouble – so much so that most good photocopiers won’t even do it.

The copying isn’t the issue – it’s what is GAINED by copying – the value of a license without recompense to the artist (or those who hold the rights). it is the “something for nothing” thing that is key.

No, the VCR didn’t kill hollywood – but then again, copies of copies of videotapes were useless, and every copy was made pretty much real time. It’s another vapid and all too common argument.

Anonymoussays:

Re: Re: Piracy

Copying money is a crime because when I buy something with fake money someone else physically loses that which they gave up.

But if I copy a song the other party lost nothing.

So there is a difference and you are intentionally making a very dishonest comparison like the dishonest person you are, as usual. Then you wonder why no one takes you seriously.

Ninjasays:

Re: Re: Piracy

Is copying money a crime? it’s just copying.

No it isn’t unless you make efforts to present it as the real thing. Then it’s a crime. I have a bunch of copied, enlarged one dollar bills I sometimes use to joke around. I’ve seen plenty of advertisements where the ad itself is a copy of some bill with the advert.

The copying isn’t the issue – it’s what is GAINED by copying – the value of a license without recompense to the artist (or those who hold the rights). it is the “something for nothing” thing that is key.

Nothing is gained nor lost from the file sharing process. Unless you consider the free advertising for the artist. Then it’s a gain for everybody.

No, the VCR didn’t kill hollywood – but then again, copies of copies of videotapes were useless, and every copy was made pretty much real time.

It didn’t kill regardless of all the MAFIAA hysteria. And over a decade of file sharing is very, very far from killing them. But file sharing did empower the small artist simultaneously increasing the pie size and at the same time taking some from the MAFIAA. And that’s what they afe whining about.

No matter how much you twist it, file sharing does not do any harm to the creators. Unless they are trying to cash in with shitty stuff, then it is a real threat.

Anonymoussays:

Re: Re: Re: Re: Re: Piracy

and the idea behind money would fall more under trademark, money can be thought of as a trademark of the U.S. government. Techdirt, in general, agrees with trademark laws and laws that prevent fraud through impersonation. The idea behind preventing the dollar from being copied is more consistent with preventing trademark infringement and fraud.

For whatever to confuse two separate concepts is dishonest. I expect no less from such a scumbag though.

Ehud Gavronsays:

Making up unlawful things to pretend analogies

Is copying money a crime? No.

Attempting to pass that off and gain value from that is.

See, it’s easy to make up stuff on the Internet and pretend to be knowledgeable but then look kinda stupid when someone points out that the criminal code is pretty clear about this.

It’s not a crime to copy a digital file. It’s not even a crime to have “GAINED” something (you know, like that copy). The “value of a license” is the shrill cry of someone who doesn’t understand what copyright is for. Go read US Code Chapter 17 and get a clear understanding that the word “license” is not what it’s about.

Best of luck with comprehension. It seems you came in here to troll… and no amount of FACTS (what IS and what IS NOT a crime) will change that.

E

Anonymoussays:

Re: Making up unlawful things to pretend analogies

“See, it’s easy to make up stuff on the Internet and pretend to be knowledgeable”

Whatever doesn’t even do a good job pretending to be knowledgeable. Most of the time he shows little evidence that he even read the article before posting, often repeating what the article already said as though he’s explaining something new. It’s sad and pathetic because he’s only hurting his own cause.

Anonymoussays:

Re: Re: Piracy

No, the VCR didn’t kill hollywood – but then again, copies of copies of videotapes were useless, and every copy was made pretty much real time.

Given the hue and cry that was made about the VCR at the time, it’s clear that the industry thought otherwise. Some prominent members still believe the original Betamax decision was a mistake.

Now it’s really a matter of “the boy who cried wolf”. Or, to be specific, “the industry who cried devastation while paying Chris Dodd even more money they said they didn’t have”.

Anonymoussays:

Re: Re: Piracy

“The copying isn’t the issue – it’s what is GAINED by copying – the value of a license without recompense to the artist (or those who hold the rights). it is the “something for nothing” thing that is key.”

And this is exactly why I want IP laws abolished altogether.

The purpose of IP law should never be about compensating the artist. It shouldn’t be about preventing me from gaining something ‘for free’ or getting something for nothing. It shouldn’t be about reducing or restricting aggregate output. That is only a means to an end.

It should be about increasing aggregate output. Making it so that more free content is available so that more people can get something for nothing. That is the basis of economic theory, to maximize aggregate output.

Posts like this are by far the strongest argument for the absolute and complete abolition of IP laws. They should never be about the artist and they shouldn’t be about preventing your twisted definition of ‘stealing’ or enforcing your immoral moral standards. There is nothing wrong with infringement and it is in fact very morally wrong to limit it if there isn’t a very strong associated social benefit justifying any limitations on it.

The more you post the more you convince me that IP laws should be abolished. Good job doing the exact opposite of what you intend.

Quiet Lurckersays:

Re: Re: Re: Piracy

No. Don’t make copyright go away. Re-evaluate it, restructure it in light of technology and its potentials.

All too often, even on Techdirt, we see arguments where something that is considered legal in the real world is or should be considered illegal on the internet or in the virtual world. For example, selling or giving away a physical copy of book to your friend is perfectly fine, but selling or giving away a digital copy of that same book is not. Where is the difference, except one is bits and the other is pulp?

We need copyright, but it needs – it absolutely MUST BE – applied uniformly in the virtual world and in the real world. Any other approach to the matter is injustice. From a technical standpoint, that is a very, very, very fine needle to thread, but as I see it, that’s the only equitable and right way forward.

Anonymoussays:

Re: Re: Re: Re: Piracy

Please make copyright go away, the post above begging to keep it just highlights the absurdity of it.

We must apply this broken concept evenly!? No, how about you take a bad idea that does not work and is just being exploited and drop it like a bad habit.

We do not need copyright, saying otherwise has to be the absolute silliest thing I have read today!

Anonymoussays:

Re: Re: Piracy

Is copying money a crime? it’s just copying. Oh wait, it is.

Your ignorance is showing greatly. Money cannot be copied, ever. It either is or it is not money. It is possible to make more, but it isn’t a copy, it becomes new money.

In your ignorance, your have presupposed that currency is money. It is not. Currency was a promissory note (a cheque is you like) by the government for for a specific amount of money, either silver of gold. Today, currency is used without any actual backing money. Governments regularly devalue currency by printing more of it.

In the time of currency as a promissory note and today when it is not, governments frowned upon and frown upon (and chase after) those who attempt to print non-authorised versions of currency as this takes the control of such currency out of the hands of the government (or more the point the bankers controlling the central currency presses).

You need to get out more and understand the reality of the world around you. Anything used as money requires a number of very specific characteristics, currency requires not of those. Currency only requires that we pretend that it has any value when it has none of the characteristics of money.

When the day comes when money loses it meaning, then any form of currency will be completely meaningless as well.

Educate yourself as whatever you think you know is far less than what actually is. Even little girls know more than you do.

The copying isn’t the issue – it’s what is GAINED by copying – the value of a license without recompense to the artist (or those who hold the rights). it is the “something for nothing” thing that is key.

The first part of the comment is true, the last part misses the mark so completely, it’s moronic. There is a piece of wisdom that goes,

That which has been is that which shall be; and that which has been done is that which shall be done; and there is nothing new under the sun.

Is there a thing of which it may be said, See, this is new? It has already been in days of old, which were before us.

There is no memory of former things, and also of after things when he shall be; for neither shall be a remembrance of them with those who will be at the afterwards.

If you had any understanding of history and technology, you would know that this applies in many areas, particularly in the realm of knowledge. Go educate yourself before opening up the keyboard.

Yellow Beard with matching sockssays:

Re: Piracy

civilization in fact all of human society way made by taking the idea’s of others, all of the advances both technologically and socially have been achieved on the backs of others, it’s called society if we lock up ideas, innovation and creation to a select few we don’t have A society we have conflicting societies, that are now competing for resources and use violence to achieve exclusion. Which is exactly what we are seeing

Anonymoussays:

Re:

Except that no one visits your blog and Techdirt gets lots of visits and it’s a successful blog. You are the only freeloader here, freeloading off of Techdirt’s success by posting your absolute nonsense here and derailing the conversation because no one would be willing to visit any blog you would make. and, apparently, you are jealous and blaming your lack of success on piracy or something?

Your lack of success is your own fault and it has more to do with the fact that no one cares to visit any blog you make than it has to do with people not compensating you for your work.

What, do you want to be compensated for your absolutely worthless comments too because we are here reading them despite them not contributing anything of value?

Anonymoussays:

I think this posts way way overstates the impact of infringement.

First of all artists have hardly ever made their money through record labels and selling CDs or content. Most of their money has been made through things like concerts. If anything in many instances infringement can get more people to spend money on artists and in many instances artists would be happy to have their songs played on the radio without compensation (they would even be willing to pay to have their songs played on the radio) because they can benefit from the recognition.

Secondly the real issue isn’t infringement. It’s competition. Venues like Youtube, Megaupload, and Veoh gave artists alternative ways to distribute their content without needing these intermediaries and the intermediaries are crying that they are no longer needed. and that’s the real reason they want these services shut down.

It’s sad that Techdirt is overstating the issue of infringement while ignoring the true issue here.

Ryunosukesays:

one minor, yet important aspect of "piracy" that you overlooked

Rom/Rom-hacking/Emulators

Before there was physical media (cartridges, CDs, DVDs) then the popularity of ROMs and ROM-hacking became prevalent, mostly due to hard to find games, or outdated systems (NES, SNES, PSX, PS2, etc)

This would fall under the same vein as music and really, early game copying. It also proved that older games are still popular, and many systems now incorporate an e-shop of sorts, think, PlayStation network, or Nintendo’s eShop, which are essentially, emulators built into the systems (or at the very least ports of games).

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