posted about 5 hours ago on techdirt
We've written about Bill C-10, the Canadian government's attempt to bring online services under the auspices of the country's broadcast regulator, the CRTC, and the way the story about the bill keeps shifting and the promises about what it supposedly won't do keep being broken. Now, work on the the bill has been paused after lawmakers from all four parties voted to ask the Department of Justice for a fresh analysis of its legality under the Charter of Rights and Freedoms. They've also asked for the bill's champion, Heritage Minister Steven Guilbeault, and others to come before the committee and discuss its implications. But Guilbeault has consistently demonstrated a total inability to give clear answers (or, sometimes, any answers at all) to questions people raise about their concerns with the bill. This has been made "crystal clear" (a term Guilbeault has wrongly applied to the muddy and vague bill itself) by some of his responses over the past couple of weeks. First, at the end of April, Guilbeault was pressed for details in an interview on the CBC, with host David Common asking why the exclusion for social media content was removed from the bill and how the Minister can still claim it won't be impacted (you can watch the full interview here). As you can see, his answer — inasmuch as it constitutes an answer — is not very convincing: Steven Guilbeault struggles to justify #BillC10 in disaster interview @davidcommon #cdnpoli pic.twitter.com/e7j9cw6RES — Pundit Class (@punditclass) April 30, 2021 Why won't Bill C-10 impact user content on social media? Because they're "not interested" in doing that and it's not the bill's "purpose". Oh and also the bill isn't finished. The fact that an exclusion to specifically prevent regulation of social media was removed is, apparently, irrelevant. The powers granted by the actual text of the bill are, apparently, irrelevant. The idea that regulators would use the regulatory powers given to them by the bill "has no basis in reality". Just trust him. Not convinced? Well, a few days later in the legislature, Guilbeault was pressed by an opposition Member of Parliament on the free expression implications of the bill, and he gave even less of an answer: You will not believe what just happened during Question Period in the House of [email protected]_Guilbeault simply could not have been more crass and despicable trying to defend his indefensible censorship Bill C-10 cc @MGeist #cdnpoli pic.twitter.com/1gvPLdGCST — Mr. Surveillance 🇨🇦 (@surveilz) May 3, 2021 Yes, you saw that — Guilbeault immediately pivoted to the completely unrelated topic of reproductive rights and lobbed accusations of hypocrisy at the questioner. Those accusations might not be entirely baseless, but they are entirely irrelevant to this subject that is of extreme importance to all Canadians, not just those on the opposite side of the political aisle from Guilbeault. The Minister also accused another MP of lying about the bill, and was reprimanded in the House of Commons and pressed to withdraw his statement. The Liberal party would very much like it if people viewed opposition to Bill C-10 as a purely partisan effort coming from disingenuous and dishonest opposition politicians, but nothing could be further from the truth. But Guilbeault's evasiveness and foundering doesn't stop there. The latest interview (watch the whole thing here), in which he changed his previous story and stated that the bill will enable the regulation of users on platforms like YouTube, might be the worst one yet: Who will be subject to discoverability regulations under C-10? People with large followings? What’s the threshold? @s_guilbeault responds. Read more: https://t.co/m3qjS6rarL #cdnpoli #ctvqp pic.twitter.com/8EFqDMnViu — CTV Question Period (@ctvqp) May 9, 2021 Guilbeault manages to contradict himself in a matter of seconds. After the understandably frustrated interviewer presses him, yet again, on his promises that the bill won't regulate social media users, he emphatically insists "individuals are exempt from this la-" and can't quite make it to the end of the word "law" before cutting himself off to say "or will be, once it's adopted". Then, in the very next sentence, he says that the bill will apply to individuals who "act like broadcasters" then vaguely asserts that such people are somehow completely distinct from "everyday citizens". As we discussed in the previous post, he then goes on to be completely unable to clarify

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posted about 7 hours ago on techdirt
If you've been following along with us, the past several months haven't gone great for streaming platform Twitch. It all started with Twitch's decision to simply nuke a bunch of streamer content as a result of a massive influx of DMCA notices it received. While Twitch streamers and some in the public went ballistic over this, the company decided to try to distract the world with bright shiny objects like emojis, only to continue to let the DMCApocalypse continue even after it apologized for its lack of transparency. Then Amazon, which owns Twitch, put on Twitch's GlitchCon and spent a pretty penny on it, while streamers on the platform wondered why Amazon didn't just spend that money on the licensing needed to keep streamers out of copyright jail. Fresh into 2021, Twitch then gave creators tools to help avoid copyright strikes, which mostly consisted of convenient ways to delete a bunch of their own content while not bothering to put in a method for policing DMCA abuse. And now it seems like a near certainty that this is all going to get way, way worse. Twitch, without notice, recently released a new tool on its site to make it even easier to issue DMCA notices on creators. Twitch Just launched a new page to DMCA strike people faster and more easily and also possibly get them bannedhttps://t.co/YvIcyNDwhk This is meant to strike someone that steals your videos/emotes/music/clip but possibly people reacting to your content too if you ignore fair use pic.twitter.com/gX6n7wAhYq — Saysera (@Saysera69) May 4, 2021 Now, it is worth noting that this approach is somewhat different. Because this page requires a Twitch login in order to submit a claim, this appears to be less about giving industry rightsholders a way to DMCA the hell out of Twitch and more about giving fellow Twitch creators a way to DMCA the hell out of each other. Now, nothing prevents anyone who wants to use this tool from just creating a Twitch account to do so, so there is certainly the potential for abusing this new tool. And it seems Twitch knows that, as this tool forces anyone looking to issue a DMCA notice to affirm that they're doing so rightfully. Users must also fill out their contact information and agree that the claim is filed in good faith. However, seemingly to prevent abuse of this feature, Twitch also states that users must state they are “authorized to act on behalf of the owner of an exclusive right that is allegedly infringed” under penalty of perjury. Viewers seem a bit mixed on the new feature, with some suspecting it will result in more bans and reports than we’d see otherwise. Of course it will. This is going to make things measurably worse on the DMCA front, with the only real question being just how bad this is going to get. And, mind you, this is all done instead of Amazon investing in the licensing Twitch creators would need in order to be relatively safe from being DMCA'd to hell. Now, we can argue all day long whether our dumb copyright culture has ballooned into a scenario where all these licenses and all of this enforcement of copyright is really silly and counterproductive for all involved. I'm way into that discussion. But given the current reality, Amazon is simply not doing right by Twitch's most valuable asset: it's creative community.

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posted about 8 hours ago on techdirt
It's not often you see a politician ask the FCC to step in to punish a news station. And for good reason: the First Amendment. Politicians are welcome to fight speech they don't like with more speech, but they shouldn't be calling for a federal government investigation of a TV station just because they don't like the slant of the stories about them. Baltimore (MD) City State's Attorney Marilyn Mosby thinks a local Fox affiliate is unfairly portraying her and her official doings. Rather than just accept that this is part of being in the business of politics, Mosby is asking the FCC to ask Fox to stop being Fox. Here's the angry letter [PDF] her office wrote -- one she boosted into Streisandia by airing her particular grievance on Twitter. (h/t Adam Steinbaugh) This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State’s Attorney’s Office (SAO), a government entity, and its lead prosecutor, State’s Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous. Well, that's Fox for you. And if the FCC hasn't done anything yet to go after broadcasters who "intentionally distort the news" -- something forbidden by FCC rules -- there's a good chance it won't be doing anything about this complaint either. And a lot of "intentional distortion" is often in the eye of the beholder. Mosby is definitely aggrieved, but being mad about stuff isn't the same as being right about stuff, especially when the Constitution is on the line. In my capacity at the States Attorney’s Office, I have noted that the news coverage of the WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts. Whew. Sounds just like any news outlet that has hosts and commentators with axes to grind. Nothing unusual here other than a government figure demanding the federal government start targeting protected speech. And speaking of conspiracy theories, Mosby has one of her own: Most disturbingly, there appears to be an intentional crusade against State’s Attorney Mosby, which given today’s politically charged and divisive environment, is extremely dangerous. Mosby also has problems with how often she's being covered by the local Fox affiliate, which is another thing you don't see too many politicians complaining about: too much press. In 2020, there were 248 stories by the WBFF solely about SA Mosby. In comparison, other local news networks ran significantly fewer stories. When assessed over the same period in 2020, Baltimore City stations did the following: WBAL – 26 stories; WJZ – 46; and WMAR – 10. So far in 2021, the WBFF has run 141 slanted stories. Looks like a really good use of Baltimore tax dollars: having staffers watch TV to find things for Mosby to complain to the FCC about. Mosby claims this heated, frequent coverage of her endangers her personally. According to Mosby, the slanted broadcasting -- combined with the station's one-time broadcast of her home address -- has resulted in her receiving multiple death threats and fearing for her safety. How much of this would have happened without WBFF's allegedly unfair coverage is unknown. The letter then lists a sampling of the "slanted" coverage that Mosby finds so disturbing her office is asking for FCC intervention. And it's a pretty bland list. Rollout of new policies by Marilyn Mosby needed more collaboration, experts say Baltimore City State’s Attorney Avoids Oversight Role Top Prosecutor Plays in Baltimore Violence Quotes from these offending pieces are also attached and they're equally inoffensive: It’s been about three weeks since City State’s Attorney Marilyn Mosby doubled down on her plan to permanently stop prosecuting what she calls “low-level” offenses. Findings from an Operation: Crime & Justice investigation show City and State watchdog agencies don't audit City State’s Attorney Marilyn Mosby’s Office. Since the riots in 2015, Baltimore City has seen hundreds of lives lost. Sean Kennedy who is a visiting fellow at the Maryland Public Policy Institute tells Fox45 News, “The State’s Attorney is a crucial player in curbing crime in any jurisdiction.” Somehow this equates to an assault on the State's Attorney sensibilities and an attack on the right of the people to be able to access "unbiased" news. Somehow this innocuous batch of pretty mild criticism is something that "incites racists to act upon their animus for the State's Attorney." Mosby wraps the complaint with a paragraph that is inconsistent with everything surrounding it: To be clear, the State’s Attorney’s Office is not above receiving criticism. We welcome being held accountable, and we support First Amendment freedom of speech. However, what we find troubling, abhorrent, and outright dangerous, is that the distinctly relentless slanted broadcast news campaign, against the Baltimore City State’s Attorney’s Office and its lead prosecutor, has the stench of racism. The Attorney's Office will only accept criticism that's "unslanted." It will only be held accountable by journalists it considers to be fair. And it fully supports the First Amendment rights of everyone but the broadcasters at WBFF. And, I hate to say it, commentary and opinion with a "stench of racism" is still protected speech. If Mosby really respects the First Amendment and welcomes criticism, she should simply post this letter -- minus all the stuff requesting action from the FCC -- and let residents draw their own conclusions about WBFF and its coverage of local politics. A government official asking a government agency to open an investigation into a journalistic entity has the stench of censorship.

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posted about 10 hours ago on techdirt
Throughout the Canadian government's legislative push to give broadcast regulators power over online services, the story on exactly what the bill would do has continually shifted, and its author, Heritage Minister Steven Guilbeault, has been consistently vague and evasive in the face of questioning from other lawmakers and the media. He has repeatedly insisted that Bill C-10 is designed to target large audio and video services that act like broadcasters, but will not impact individual users of sites like YouTube and Twitch — despite the fact that the clause which would have clearly prevented this was removed and a new amendment confirms that social media will be subject to at least some regulation. The latest development is another change in the story: in a recent interview, Guilbeault stated that the new regulatory powers can apply to YouTube channels: "What we want to do, this law should apply to people who are broadcasters, or act like broadcasters. So if you have a YouTube channel with millions of viewers, and you're deriving revenues from that, then at some point the CRTC will be asked to put a threshold. But we're talking about broadcasters here, we're not talking about everyday citizens posting stuff on their YouTube channel," Guilbeault said. One of the main points critics of the bill have been making is that, despite Guilbeault's insistence that it won't impact individual users, he's never been able to explain why not given the powers the bill gives to the broadcast regulators at the CRTC. This latest comment just confirms it: whatever the stated intent, the bill leaves it up to the CRTC to decide if and when to extend their new regulatory powers to a user of a platform like YouTube. He frames this as not impacting "everyday citizens" but, of course, many everyday citizens on social media can get huge audiences on par with major broadcasting operations — that's kind of the whole point, and one of the reasons people are rightfully opposed to the government regulating people's speech on those platforms. And of course, as always, the bill doesn't offer any clear, solid protections against overreach — nor does Guilbeault: Asked repeatedly what the threshold would be for CRTC scrutiny, whether a certain number of millions of followers, or a certain amount of advertising revenue, the minister said it’s something the government will ask the CRTC to determine, but that it would be entities that have a "material impact on the Canadian economy." This vague and almost meaningless condition isn't very reassuring, especially coming from the same person who recently insisted that the bill wouldn't impact users of these platforms at all. Opposition to the bill is rightfully growing throughout Canada and across party lines, and there's a growing amount of speculation about the legal challenges that C-10 is likely to face if passed. If the government really wants to achieve its primary stated goal of getting major audio and video services like Netflix and Spotify to support Canadian content the way traditional broadcasters are required to (a proposal that still raises significant questions that will need to be examined), they're first going to need to unveil a completely revamped bill that actually addresses people's very real concerns and places clear limitations on the CRTC's power to ensure that it won't curtail Canadians' freedom of speech, and stop trying to feed the country a vague and shifting story interspersed with desperate promises that the bill won't do what everyone can see it will.

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posted about 10 hours ago on techdirt
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posted about 11 hours ago on techdirt
Donald Trump liked to use the "Deep State" as a rhetorical punching bag. Whenever he stuck his foot in his mouth or found himself under investigation for abusing his powers, he claimed the "Deep State" just couldn't handle having such a strong truth-teller in the Oval Office. But he apparently liked the "Deep State" enough to allow it to go after his personal enemies, even as he portrayed himself as a warrior against the excesses of federal power. Trump's primary enemy was the press. According to Trump, there was also a massive media conspiracy determined to oust him from power -- one that was headed by "failing" mass media figureheads like the New York Times and the Washington Post. The latter was often conflated with Amazon -- the apparent enemy of the United States Postal Service (until the USPS became an enemy by delivering mail-in votes). This wasn't just Twitter posturing. Apparently, Trump (and the agencies under his control) believed the newspaper was a threat the government should neutralize by mobilizing the "Deep State" powers he repeatedly criticized. Documents obtained by the Washington Post show the DOJ directly targeting journalists' phone records in an apparent attempt to shield Trump from accusations of being BFFs with a foreign government's officials during its attempt to sway an American election. The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials. In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period. The DOJ has rules for targeting journalists. It generally agrees that it shouldn't, but a lot of times it actually believes it should, despite the First Amendment implications. Journalists and their sources are granted a whole lot of Constitutional protection but sometimes the federal government prefers to serve its own interests. Sniffing out leakers and whistleblowers is one of those interests the government tends to elevate above Constitutional concerns. Now that it's being called out for its unconstitutional bullshit, the DOJ is getting pretty defensive about its meddling in First Amendment affairs. According to the DOJ, this incursion was a serious thing it would only do when it's super-serious about something. "While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.” Well, if it's an internal investigation, try to keep it internal. Nothing really justifies going after reporters because it's easier or more efficient than targeting government employees who might be well-trained in subterfuge. If an investigation can't be closed without using the First Amendment as a doormat, perhaps the investigation should be abandoned. There are more important things for the DOJ to do than seek out people who turned over information to journalists. There are plenty of people willing to turn things over to foreign adversaries and maybe the DOJ should consider limiting itself to investigating leaks that harm more than a president's reputation.

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posted about 14 hours ago on techdirt
Remember when the FCC rubber stamped the Sprint T-Mobile merger without looking at the facts? Remember when a long line of economists and experts noted the merger would likely erode competition, raise rates, and kill jobs -- and both U.S. regulators and the court system completely ignored them? And remember when the FCC and DOJ both cobbled together a "fix" to this problem by trying to throw some spectrum at Dish Network, a proposal we noted was likely to fail? Well guess what. Not only has the merger resulted in 5,000 layoffs and counting (something T-Mobile repeatedly promised regulators would never happen), the Dish "fix" proposed by the DOJ and FCC is looking more and more like a hot mess. Dish has increasingly been complaining that before the ink on the agreement was even dry, T-Mobile was behaving a lot like AT&T and Verizon. The issue is that T-Mobile is shuttering its older and slower CDMA network, which Dish hoped to lean on as it got its full, broader 5G network up and running: "This is the same company that goes on Twitter and talks about dumb and dumber and how they’re for everybody, they love everybody and they’re for the consumer. They went to the Public Utility Commission in California under oath and said that it would be three years before they turned CDMA off. They forgot about that. Once they got their merger done, they look like every other big company,” Ergen said. “They’ve become the Grinch,” he said. As the Dr. Seuss story goes, the Grinch had a tiny heart and stole all the kids’ toys. In Ergen’s analogy, T-Mobile is sort of stealing phones out of consumers’ hands since they won’t work anymore. Sounds like the strong foundation for a lasting relationship, yeah? Ideally, the agreement offloaded T-Mobile's Boost prepaid brand and some spectrum to Dish Network in the hopes it would cobble together a replacement fourth wireless carrier over a period of seven years. But there were always ample problems with that idea that suggested it was more regulatory theater than practical solution for the market problems created by the merger. One, even by T-Mobile's admission Dish has a long history of hoarding wireless spectrum and making empty promises in wireless. Two, Verizon, AT&T, and T-Mobile had absolutely every incentive in the world to prevent the creation of a viable, fourth wireless competitor. Three, regulators who take great pride in being "hands off" were never going to have the competency and willingness to nanny such a convoluted deal toward completion. Dish continues to bleed satellite TV subscribers at an alarming rate, so it surely wants a shift to wireless to work out. But it's just not clear that the company has the competence to pull it off, especially when the consolation prize for failing is likely just a wrist slap by the FCC and a huge cash pay out should it sell off its mammoth spectrum hoard. Meanwhile, as we've seen in Canada, Ireland, and Germany, the reduction of competitors from four to three will inevitably result in higher mobile data prices for U.S. consumers, something the remaining three U.S. carriers will lobby for heavily to ensure never changes.

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posted 1 day ago on techdirt
This week, our first place winner on the insightful side is an anonymous comment responding to Trump's description of his new microblog platform as "a beacon of freedom" and "a place to speak freely and safely": Translation: "You are free to praise and agree with Trump or you are free to shut up and go away." In second place, it's That Anonymous Coward with some thoughts on Hollywood lobbyists fighting against IP waivers for COVID vaccines: Does anyone still have any doubt that they value copyright more than human life? Not a SINGLE movie can prevent or treat covid, but JUST IN CASE we should make sure people die for not being able to pony up for access to the IP. Tell me again how the system isn't broken and I will so bitch slap you into next week. For editor's choice on the insightful side, we start out with an anonymous response to the ol' "intellectual property promotes innovation" claim: Wow dude. Way to be completely wrong. Modern American innovation is stunted by modern American "intellectual property" laws. Innovation is discouraged by "IP" laws that penalize/ban innovation that anyone can argue is somehow related to their own works. It is kind of like someone took a look at the history of western science and said "These people are learning from each other, and frequently come up with ideas based on the ideas that came before. Let us have less of this." Next, it's another anonymous comment in response to the latest example of cops behaving badly: Cops are... really not great at putting up arguments for why they shouldn't be defunded. Over on the funny side, our first place winner is n00bdragon with another response to Hollywood opposing IP waivers: Those researchers would never have created a COVID vaccine if they didn't expect a movie to be made about it. In second place, it's Stephen T. Stone with a comment about the description of people who "had already decided their conclusion and was looking for strawmen to throw up and tear down in order to 'bolster' their point": Kinda reminds me of someone around here. Oh, I wish I could think of their name. But damn it all, I can’t come up with that name right now. You got any ideas? For editor's choice on the funny side, we start out with a comment from bobvious responding to the argument from Senator Tillis that we can't go sharing "government-supported research": Come now Mike. Don't you realise that means that Senator Tillis is paying for this out of his OWN pocket?? Finally, we've got K'Tetch who did the legwork to make an ironic joke about our post on bogus DMCA scams based on plagiarized websites: Oh for shame! How dare you! Don't you know I wrote this article first! back on April 31st 1957? How dare you try and claim it as yours! That's all for this week, folks!

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posted 2 days ago on techdirt
Five Years Ago This week in 2016, we were pleasantly surprised when an Australian government commission spoke out about the harms of bad copyright law and bad patent law, while the University of North Dakota was teaching a student all about trademark abuse. The DOJ was issuing new rules on espionage investigations in the apparent hopes of avoiding embarrassment, while at the same time deploying some very questionable legal arguments in defense of the FBI's hacking warrants, and the National Intelligence Office's top lawyer was stepping up to defend bulk surveillance and the third-party doctrine. We also took a look at how the proper channels for whistleblowers were still a joke, as was the proper channel for requesting government records. Ten Years Ago This week in 2011, Righthaven's woes continued as unsealed documents in one case had other judges questioning the legitimacy of their lawsuits, while the infamous John Steele also got slammed by a judge for a fishing expedition, and Perfect 10 sued the Usenet provider Giganews. Meanwhile, the White House published its obnoxious annual Special 301 naughty list of countries with IP laws the US doesn't like, and we took a look at just how dangerous the USTR's approach to naming-and-shaming could be. But the biggest news of the week didn't have much of a Techdirt angle — until we saw the story of the man who unknowingly live-tweeted the raid that killed Osama Bin Laden. Fifteen Years Ago This week in 2006, there was growing buzz about whether software-as-a-service would kill piracy, while evidence continued to show that the war on movie piracy wasn't working. Epson was engaged in the fight against off-brand ink cartridges and the Supreme Court took a sudden interest in patent cases. The content industries were playing their game of sneaking bad rules into treaties, while we looked at the constitutionality of the RIAA's per-song fines. And it's always interesting to see a quiet, simple mention of Section 230 back before it was known to everyone, in this case in a post about all the lawsuits targeting Google.

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posted 3 days ago on techdirt
The troubling signs for Google's video game streaming platform Stadia continue. While I have to admit that I had really high hopes for Stadia, nothing about this has been smooth from launch to its current state of, well, who the hell knows what is going to happen to it. From a poor initial reception to questions about failed promises on performance, the conversation about Stadia quickly focused on the platform not offering much in the way of an actual game catalogue to play. Less than a year later, Google made this problem even worse by disbanding its own in-house game developers, leading to more fallout when Stadia could suddenly not support its own internally developed game. And, as I mentioned above, the issues continue. Stadia's product head, John Justice, has left Google entirely. Another executive has left Google Stadia, and this time it's John Justice, vice president and product head of Stadia at Google. Along with Phil Harrison, Justice was the face of the project, frequently giving interviews and talking to the press. Justice hasn't updated his LinkedIn profile yet, but following a report from The Information, Google told 9to5Google, "We can confirm John is no longer with Google, and we wish him well on his next step." This latest departure is just another sign that Google's game-streaming service is circling the drain. A Bloomberg report from February revealed that the service missed Google's internal sales estimates by "hundreds of thousands" of users. Shortly before the release of that report, Google shut down its in-house game studio, Stadia Games and Entertainment, after less than two years of operation, citing the high cost of operating it. This move led to Stadia's other high-profile departure, the exit of Assassin's Creed co-creator Jade Raymond. On some levels, this all feels a bit silly. Google has enormous resources from which to draw and game streaming is certainly going to become a massive force in the future of the gaming industry. It appears to certainly be the case that Google flubbed the Stadia launch and let that flub linger. But there is zero reason why Google should let this "circle the drain" if that is in fact what they're doing. Instead, it would be nice if, for once, Google did the un-Google thing and bulwarked a project like this with more resources, seeing it to fruition. And, to be fair to Google, perhaps they do have a coherent plan for Stadia. They lightly hinted as much in a blog post recently. After shutting down its game studio, Google seemed to hint at a change of strategy for Stadia. Google's blog post said the company is looking for a "path to building Stadia into a long-term, sustainable business that helps grow the industry," which indicates that the current strategy of selling games to customers was not a "sustainable business." The post highlighted Google's "platform technology" that could help studios deliver games "directly" from publishers (as opposed to through the Stadia store?) and that Google saw this as "an important opportunity to work with partners seeking a gaming solution all built on Stadia's advanced technical infrastructure and platform tools." If I'm reading that word salad correctly, this is hinting that Stadia might be less the gaming industry's version of Netflix and more about building a platform that works with game developers so that they can offer cloud-gaming experiences directly to customers. Perhaps that's the right way to go, though I still can't see why a service like Stadia, were it actually running properly and populated with a good catalogue of games, can't work. In fact, it seems somewhat obvious that that's the future, though it may not be a future run by Google.

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posted 3 days ago on techdirt
Summary: An app that allowed users to moderate content residing on their own phones was given the boot by Google after it was determined to be in violation of Play Store rules. The self-explanatory "Remove China Apps" app was developed by Indian engineers residing in Jaipur, India in collaboration with One Touch App Labs. The app was created in response to growing backlash against China during the early days of the COVID-19 pandemic, after early reports showed visitors to a seafood market in Wuhan, China had contributed to the spread of the virus. India's proximity to China intensified this backlash. How removing apps developed in China was supposed to stop the spread of the virus is best left to the possibly literally-fevered imaginations of the app developers and the millions of Indian users who downloaded the app. However questionable the motivation for the development and deployment of the app, it did allow Android users to easily identify apps developed by Chinese developers and remove them from their phones. However, this secondhand act of personal content moderation was soon hampered by Google, which dumped the app from its Play store, citing violations of its policies. Specifically, Google pointed to its "deceptive behavior" policy. App developers are forbidden from uploading apps that "encourage or incentivize users to remove or disable third-party apps." Decisions to be made by Google: Should Google control how Android phone purchasers choose to use their phones?Should Google be more concerned with possible exploitation of permissions to compromise phone users, rather than the ability of users to more closely moderate the content of their devices?Is an app that openly states it will remove other apps actually "deceptive?"  Questions and policy implications to consider: Could apps like these serve a useful purpose, like giving Google a heads up on questionable apps/developers?Does maintaining a blocklist for devs/users achieve the same objective without harming developers who rely on crowdfunding? Does pushing Android users towards sideloading apps do less to protect users than removing questionable apps that run afoul of rules rarely broken by app developers? Resolution: Google has refused to reinstate the app. Android users are still able to sideload the app if they wish. The popularity of the app went further than India and the county's kneejerk reaction to developments in Wuhan, China. But Google still has a battle ahead of it. With it commanding nearly 95% of the Indian market, the demand for apps that (correctly or incorrectly) "punish" Chinese app developers remains a growth market. Originally posted to the Trust & Safety Foundation website.

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posted 3 days ago on techdirt
I always thought it would be a great honor to be referenced in the hallowed pages of WIRED magazine. Like Mike, I've been reading it since its beginning, as a then student studying information technology and watching the Internet take hold in the world. This week it finally happened, and ugh... My work was referenced in support of a terrible take on Section 230, which not only argued that Section 230 should be repealed (something that I spend a great deal of personal and professional energy trying to push back against) but masqueraded as a factual explanation of how there was no possible reasonable defense of the law and that therefore all its defenders (including me) are, essentially, pulling a fast one on the public by insisting it is important to hold onto. After all, as the title says, "Everything you've heard about Section 230 is wrong," including, it would seem, everything we've been saying about it all along. Such an assertion is, of course, ridiculous. But this isn't the first bad Section 230 take and unfortunately is unlikely to be the last, so if that were all it was it might be much easier to simply let it fade into history. But that wasn't all it was, because the piece didn't just make that general statement; it used my own work to do it, and in the most disingenuous way. Ordinarily, of course, my work can speak for itself. The problem was, the author of this piece didn't let it speak for itself. Instead he stripped it of its context, plucking out only bits of the overall argument, citing ideas so incompletely, so orphaned from the overall message in which they were delivered, as to effectively mischaracterize my position. And then he used that mischaracterization of what I had argued as ammunition to underpin his anti-230 argument. Nor did the author let me speak for my work either, which could have corrected his apparent misapprehensions, if not about Section 230's merit at large, then at least the bigger picture I was getting at in the particular brief he had honed in on. But despite speaking with several of the law's detractors, he spoke to only one of its defenders, even though he obviously considered several of us expert enough to misleadingly reference our work in support of his dubious argument. It reads as a hit piece, not just against the law itself but its supporters, and one that he was apparently so determined to make that speaking with us, and affording us the chance to explain our views and what informs them, was not something he could chance. After all, we might have convinced him of the statute's merit, or at least given him some actual factual fodder to include in his supposedly factual accounting of the law, and that was obviously not the piece he wanted to write. And so it turns out that my first mention in WIRED is a misrepresentation of my advocacy. Which is rather depressing, personally, but it raises another issue, and one that ties back into the advocacy I do defending the statute and why I do it so fervently. I don't disagree with you there. And I will be writing a rebuttal. Of course, some of us don't have the resources of Conde Nast to push it out. But that's okay, after 230 is changed and we go away, it'll clear the field of people like me and leave it for you guys. — Mike Masnick (@mmasnick) May 6, 2021 It's because the only way to make sure that my actual views can get widely expressed is to express them directly myself, and for that I need to use outlets that are protected by Section 230, like Twitter. Or maybe sometimes Facebook. Or even (as we always point out in our briefs) a site like Techdirt. If I have things to say, I obviously cannot depend on traditional media gatekeepers like Conde Nast magazines to help me say them. And while I am obviously eager to set the record straight on my free speech advocacy, I don't just speak for myself in expressing this concern. Without this law, we would all be without these outlets and without these opportunities to express ourselves publicly, even when we need to. Which would ultimately foreclose a lot of expression, including plenty of even more necessary expression. This stark calculus is also why it is so odd to see some of the law's opponents (including those who were actually quoted in the article) praise the article for having included lots of voices in it. Sure, it shared some voices. But only some. And the absence of other voices shows why Section 230 is so needed: because often Section 230-enabled outlets are the only way many voices – including the most marginalized and vulnerable many of these advocates profess to be championing – can be heard. Of course, to this point the anti-230 people unhappy about being de-platformed may say, "See? We told you it's bad to lose access to an online outlet for expression. So get rid of 230 so we can come back!" But this call to change Section 230 is silly, for a number of reasons. One is that Section 230 is not at the root of their de-platforming; the First Amendment is. Secondly, while I'm unhappy about WIRED's editorial decision to publish this piece of questionable journalism, I remain perfectly happy and committed to defending its right to publish its questionable journalism. Nobody's expression is vindicated by using law to limit anyone else's expressive rights, even if they have used them questionably; if anything, the situation calls for doubling down on speech protection, including with a law like Section 230 that makes First Amendment rights less illusory and more substantively meaningful for everyone. Furthermore, as the Copia Institute has talked about many times in our Section 230 advocacy, there is an internal balance to Section 230 that allows it to work effectively. In other to get the most beneficial and least deleterious content online that we can overall, platforms need to be legally safe to leave as much as they want up and take as much as they want down. When either protection, currently guaranteed by Section 230, starts to disappear, it starts tying platforms' hands such that they are no longer able to do the best they can on either front. In other words, making it legally impossible for platforms to remove users is not going to lead to more valuable and less problematic content online. It will just put platforms under strain and make it hard for them to be available for anyone to use. So repealing Section 230 is not going to help anyone speak online. And that includes both the people who have been de-platformed and also the vulnerable who always need to have a platform available to be able to speak out against those who would seek to hurt them. Which often, ironically, is the very same people complaining of being de-platformed. It is very strange to see the law's opponents quoted in the article, who often claim to oppose the law as a means of protecting the vulnerable, push for a policy change that will only make the vulnerable even more so. Especially when it's the exact same policy change that people who would want to hurt the vulnerable keep calling for themselves. They can't both be right, and the fact that these two fundamentally opposed groups would seem to want the same thing itself suggests that neither of them are. What this episode shows is that people cannot be dependent on the traditional media gatekeepers to enable their public expression, no matter how much they need to be able to express it. In fact, the less powerful the voice, the more important it is that these voices not be dependent on gatekeepers to speak so that they can always be able to speak against those who might hurt them. And so they need Section 230 to exist to enable other outlets they can use instead (including, potentially, their own, which Section 230 makes it much more practically possible to make). Without that law, and without these outlets, we will be without that expression, and that will be no good for anyone.

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posted 3 days ago on techdirt
Three years ago we wrote about African countries that thought taxing blogs and social media was an easy way to raise money -- and to muzzle inconvenient voices. A year later, Techdirt was reporting on a sudden boom in VPN use among Ugandans keen to avoid that country's levy on social media use. As Karl Bode reported, back then the authorities were pressuring ISPs to ban the use of VPNs. A post on the Rest of the World site has a useful update on how things have worked out since then. First, the money: after three years, the tax, which amounts to about 5 cents (200 Ugandan shillings) per day to access any of more than 60 social media platforms, has failed. It has neither helped the government raise significant revenue nor curtailed lively online discussions by young Ugandans. In its first fiscal year, the Ugandan government was projected to collect about $77.8 million (248 billion Ugandan shillings) from social media tax. Instead, it raised only about $13.5 million (49.5 billion shillings). In the next fiscal year, Uganda lowered its expectations and projected to collect $16.5 million but only just slightly beat its target by raising $18.7 million. The reason, as expected, is that people are turning to VPNs, often the free ones, despite the intrusive pop-up ads and questionable security. It turns out that it's harder to ban VPNs than the government thought. So the Ugandan authorities have come up with Plan B: Thanks to VPNs users have found a way around the social media tax. That's why, on April 29, the government replaced the social media tax with a 12% excise duty on internet data that will likely hike the cost of internet access in the landlocked country that already has some of the highest internet costs in the region. The idea here is presumably that even if people use VPNs, they will have to pay the data tax. That will probably work, but the move brings with it a huge problem. It will make using the Internet for any purpose in Uganda more expensive, which will not only discourage ordinary people from taking advantage of it, but will also throttle Ugandan online startups. However much the new tax brings in, it is likely to be far less than the deeper economic harm this short-sighted move will inflict. Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted 3 days ago on techdirt
I remember when Wired was the key magazine for understanding the potential of innovation. I subscribed all the way back in 1993 (not the first issue, but soon afterward, after a friend gave me a copy of their launch issue). Over the years, the magazine has gone through many changes, but I'm surprised at how much its outlook has changed. The latest example is a big cover story by reporter Gilad Edelman, basically arguing that people who support Section 230 are "wrong" and holding the law up as a "false idol." The piece is behind a paywall, because of course it is. I should note that, while I have disagreed with Edelman in the past (specifically regarding his reporting on 230, which I have long felt was not accurately presenting the debate), I think he's a very good reporter and usually quite thorough and careful. That's part of the reason I'm disappointed with this particular piece. Also, I will note that my first read of the article made me think it was worse than I did after subsequent reads. But, in some ways, more careful reads also highlighted the problems. While presented as a news piece with thorough reporting and fact checking, it is clearly narrative driven. It reads as though it were written with a story in mind, and then Edelman went in search of quotes to support that narrative -- even setting up strawmen (including myself and Cathy Gellis) to knock down, while not applying any significant scrutiny to those whose views agree with Edelman's. It's fine (if misleading) as an opinion piece you'd see on a blog somewhere. But as a feature article in Wired that was supposedly fact checked (though I am quoted in it, and no one checked with me to see if the quote was accurately presented), it fails on multiple grounds. The framing of the article is that "everything you've heard about Section 230 is wrong" (that's literally the title), but that's not how the article actually goes. Instead, it comes across as "everyone who supports 230 is wrong." It starts off by talking about "the Big Lie" and the fact that Trumpist cable news -- namely Newsmax, One America, and Fox News -- repeatedly presented blatantly false information regarding voting technology made by Dominion Voting Systems and Smartmatic. It notes that the voting companies sued the news channels, and all of them have been much more circumspect since then about repeating those lies. Edelman then contrasts that with the world of social media: As some commentators noted, one group was conspicuously absent from the cast of defendants accused of amplifying the voting machine myth: social media companies. Unlike traditional publishers and broadcasters, which can be sued for publishing a defamatory claim, neither Facebook nor YouTube nor Parler nor Gab had to fear any legal jeopardy for their role in helping the lie spread. For that, they have one law to thank: Section 230 of the Communications Decency Act. This statement is inaccurate on multiple levels. First of all, it's comparing apples to oranges. Traditional publishers and broadcasters face liability because they choose what limited content to publish. Note that while you can sue Fox News for defamation, no one is suing, say, Dish Network for offering Fox News. That's because liability should apply to those responsible for the speech. With Fox News, it's Fox News. They choose what goes on the air. With social media, they don't. They're more like the "Dish Network" in this scenario. The liability is not on them, but the speakers. If Dominion and Smartmatic wanted, they could have gone after the actual speakers on those social media networks for defamation, just as they chose to go after Fox and not Dish. It's all about the proper application of liability to those actually doing the speaking. But you wouldn't get that message if you read this article. Even the final line of that quote, saying that platforms have 230 to thank, is not entirely accurate. Even without 230, it's hard to see how a Dominion or Smartmatic could possibly hold Facebook liable for defamatory content on their network. The main difference is that 230 would get any such case dismissed earlier and cheaper, and that makes websites more willing to host user generated content without having to fear the crippling costs of extended litigation. That's all very important nuance. Nuance that is not adequately presented in laying out Edelman's argument. The article bends over backwards to present those of us who support Section 230 as being unwilling to admit that there are problems on the internet, and treating Section 230 like apple pie and ice cream. According to its admirers, Section 230 is the wellspring from which everything good about the modern internet emerged—a protector of free speech, a boon to innovation, and a corner stone of the American economy. The oft-quoted title of a book by the lawyer Jeff Kosseff captures this line of thinking well. It refers to the law’s main provision as "the 26 words that created the internet." At best, that's an exaggeration and a strawman that's easy to knock down. Kosseff himself notes that this suggests his book is a one-sided hagiography of 230: I also was referenced in the article and was not contacted by the reporter. I don’t think it is an accurate description of my work. https://t.co/lbAYNu1vPo — Jeff Kosseff (@jkosseff) May 6, 2021 But, of course, Edelman's representation is not a fair one of how any of us 230 supporters feel. We don't say that 230 is perfect and ideal. We regularly highlight the challenging and impossible trade-offs that come out of this internet with many companies hosting third-party speech. Jeff's book goes deep into things he doesn't like about the way the internet has developed, partly because of 230. It details many of the reasoned criticisms of 230. The issue all of us keep pointing out is not that 230 is perfect, but that every suggestion for changing it will create all sorts of problems that make the internet much worse. I've written about this a few times, and the fact that content moderation is impossible to do well. The good thing about Section 230 is not that it makes the internet perfect. It does not, and I've never claimed otherwise. It's that it allows for the necessary experimentation to continually change and improve, and to react to new forms and techniques of bad behavior. So far, every other proposed approach acts as if content moderation is a "solvable" problem and that magically forcing companies into a particular paradigm will work. This suggestion that supporters of 230 are Pollyannas of the web is a strawman. We are not. We are focused on the different trade-offs and nuances of every approach, and we defend Section 230 because it remains the best approach that we've seen for dealing with a very messy internet in which there are no good solutions, but a long list of very bad ones. The article then suggests that we supporters of 230 believe all critics don't know what they're talking about. It actually references an event that I put together (though it doesn't mention that) which Edelman attended, where I interviewed the authors of Section 230, Senator Ron Wyden and former Representative Chris Cox. If you'd like to hear that interview for yourself, you can listen to the whole thing on our podcast. Oddly, Edelman names only three out of the ten sponsors we had for that event (Amazon, Twitter, and Yelp) as if it was put together solely by the big internet companies. It does not name the other seven sponsors, which included organizations like the Internet Society and the Filecoin Foundation (which is helping to create a new internet that undermines the big social media companies). Another article of faith among Section 230’s champions? That people who criticize the law have no clue what they’re talking about. Section 230 recently turned 25 years old, and the occasion was celebrated by a virtual event whose sponsors included Twitter, Amazon, and Yelp. Senator Ron Wyden and former congressman Chris Cox, the authors of the statute, fielded questions from the audience, typed into a chat window. The most upvoted question was, “How best can we get folks to properly understand Sec 230? Particularly when it seems that many are either reluctant to realize they don’t understand or, even worse, they don’t want to understand?” Note that Edelman's assertion here -- that it's an "article of faith" among 230 supporters that "people who criticize the law have no clue what they're talking about" -- is not actually supported by the highest-voted question during the Q&A portion of the session we held. It's a factual statement that many people talking about 230 don't understand it. And in the context of the conversation, that question was referring to people like former President Trump and Senator Josh Hawley, who think that Section 230 is why websites can remove policy-violating users -- something that is just demonstrably wrong. So the question, in context, was not suggesting that everyone criticizing 230 "have no clue what they're talking about" but trying to deal with the fact that many people talking about 230 demonstrably do not understand it and seem to have no interest in doing so. So this line may fit Edelman's preset narrative, but in context it does not say what he wants it to say. It's cherry-picked. Edelman does say that Trump's (and Biden's) view of the law is not "terribly coherent," more or less admitting that the question from our event was accurate. But within the context of his article, it's presented as if we're unwilling to dig in and recognize that the internet is not perfect, and believe everyone who pushes back on 230 is doing so in bad faith. Of course, that's false. The issue is that there are many bad faith attacks on 230. However, when there are good faith criticisms of Section 230, we're perfectly happy to address them as such, and highlight why those approaches -- even if meant in good faith -- might backfire. That is not how we are presented in this article. Instead, we're presented as one side of a black-and-white battle against the realists who recognize the problems of the law. This is repeated later, when Edelman briefly quotes me as another out-of-context strawman to blow over: Other guardians of 230 sound even more apocalyptic notes when the law comes up for debate. After a group of Democratic senators proposed a bill to limit the law’s protections in early February, Mike Masnick, founder of the venerable policy blog TechDirt, wrote that the changes could force him to shut down not just the comments section but his entire website. Section 230 coauthor Ron Wyden, now a US senator, said the bill would “devastate every part of the open internet.” And I did say that we would likely have to shut down if the SAFE TECH Act became law, but that was about that particular law. We have not said that about every possible change to the law. And we said it about the SAFE TECH Act because of just how poorly drafted that law is. My article about the problems of the SAFE TECH Act (a bill which Edelman praised effusively, while also complaining that it didn't go far enough) goes into great detail on the many problems with the specific approach it laid out. But in Edelman's view, it seems, because we said this bill would likely force us to shut down, that means we're apocalyptic about any situation "when the law comes up for debate." That's just blatantly inaccurate. I've already mentioned the reasons we're happy to engage with those who are looking to make changes in good faith, to understand their issues and explore solutions. I've talked happily to many Congressional staffers and other government officials about their ideas for this very reason. But the point we keep raising is just how much detail and nuance there is in these items, which few of the critics seem willing to get into. Instead, the focus is on painting "internet bad!" with a broad brush, and that's the trap much of Edelman's article falls into. It does the same thing with another aspect of our own advocacy, calling out our amicus brief in the Armslist case, written by Cathy Gellis. Here's how Edelman frames that: In fact, a lot of the most passionate pro-230 discourse makes more sense when you recognize it as a species of garden-variety libertarianism—a worldview that, to caricature it only slightly, sees any government regulation as a presumptive assault on both economic efficiency and individual freedom, which in this account are pretty much the same thing to begin with. That spirit animated Section 230 when it was written, and it animates defenses of the law today. So you have Cathy Gellis, a lawyer who blogs ardently for TechDirt in support of Section 230’s immunity, filing an amicus brief in the Armslist case insisting that a post listing a gun for sale is speech that must be protected. That's... well, quite something. Considering that neither Cathy nor I are "garden-variety libertarians" and neither of us see "any government regulation as a presumptive assault on both economic efficiency and individual freedom," it's already misrepresenting our views. It also completely misrepresents the nuances, context, and framing of our advocacy in the Armslist case. Our argument correctly notes that advertisements are a form of speech. Edelman may not like that, but it's a factual statement -- not some crazy utopian libertarian idea. Indeed, Cathy's opening to the brief details just how difficult cases like this are, and how they force us to challenge many of our assumptions. Tragic events like the one at the heart of this case can often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that stands between a worthy plaintiff and a remedy, it can be tempting for courts to ignore it in order to find a way to grant that relief. The problem is, as in cases like this one, there is more at stake than just the plaintiff’s interest. This case may look like a domestic violence case, a gun policy case, or even a negligence case, but it is actually a speech case. Laws that protect speech, such as the one at issue in this appeal, are on the books for good reason. They are ignored at our peril, because doing so imperils all the important expression they are designed to protect. You would not get that from Edelman's piece at all. Instead, it suggests that we argued that there's no issue here since this is just speech. That's not an accurate portrayal of what we said by any basic reading of what we wrote. Cathy's brief highlighted the challenging issues in the case, and brought them back to the key point behind 230: that it's about putting liability on the actual responsible party, rather than seeking to dump it on the most easily targeted party like the platform hosting problematic third-party speech. The article also goes after Professor Eric Goldman, who is one of the top scholars on Section 230 -- first quoting a regular critic of his giving an extremely one-sided description of Goldman, and then again presenting a strawman of Goldman's views, focusing on his important paper about why 230 is better than the 1st Amendment. Yes, the title of that piece is provocative, but in the Edelman article it's presented as some sort of evidence of how extreme Goldman's views are: But Goldman is not only Section 230’s most up-to-speed observer; he may also be its biggest fan. When reporters call him for an expert quote, they get a very particular perspective—one capably summarized in the title of his 2019 paper, “Why Section 230 Is Better Than the First Amendment.” In Goldman’s view, the rise of platforms featuring user-generated content has been an incredible boon both to free speech and to America’s economic prosperity. The #MeToo movement; the more than $2 trillion combined market cap of Facebook and Alphabet; blogs, customer reviews, online marketplaces: We enjoy all of this thanks to Section 230, Goldman argues, and any reduction in the immunity the law provides could cause the entire fortress to crumble. No domain of user-generated content would be safe. If the law were repealed, he recently told the Committee to Protect Journalists, “comments sections for newspapers would easily go.” Edelman makes little effort to engage with why Goldman says any of this, or even to explore the details of Goldman's "230 is better than the 1st Amendment" paper until much later in the article, when he no longer presents it as connected to that paper. Instead, Edelman presents the title of Goldman's paper, without providing the proper context -- context he only obliquely raises elsewhere in the article. What that paper actually says is important, and not quite as radical or extreme as Edelman presents. The paper goes into great detail about a kind of wonky legal argument: that 230 has procedural benefits that help both companies and users deal with the kind of heckler's veto that would occur if we had to rely on the 1st Amendment to deal with the lawsuits. The argument is that 230, as a procedural tool, kicks these cases out early. If we had to rely on the 1st Amendment, you're talking about a much more expensive legal process, turning an issue that could be disposed of for tens of thousands of dollars into one that will require hundreds of thousands. That is perhaps deep in the legal wonkery weeds, but it's a legitimate point. Much later in the article, Edelman does finally quote Goldman directly making this point (the only supporter of 230 he appears to have interviewed, though it looks as though he interviewed and quoted at least three fierce critics of Section 230 -- without ever critiquing any of their arguments), but it's so far separated from the framing that Edelman used above that no one who hasn't been deeply engaged in this debate will recognize it: You might think, for example, that something like Citron’s proposed “reasonableness” standard would be widely seen as a commonsense, compromise reform. In fact, even this suggestion draws fierce opposition. Eric Goldman, the influential law professor, told me it would be tantamount to repealing the entire law. “A key part of 230’s secret sauce comes in its procedural advantages,” he said. Today, the law doesn’t just help companies defeat lawsuits; it helps them win fast, at the earliest possible step, without having to rack up legal bills on discovery, depositions, and pretrial filings. Forcing defendants to prove that they meet some standard of care would make litigation more complicated. The company would have to submit and gather evidence. That would require more attention and, most importantly, money. Perhaps the biggest companies could handle this, Goldman said, but the burden would crush smaller upstarts. Tweaking Section 230 this way, in other words, would actually benefit monopolies while stifling competition and innovation. Faced with a deluge of defamation lawsuits, the large platforms would err on the side of caution and become horribly censorious. Smaller platforms or would-be challengers would meanwhile be obliterated by expensive legal assaults. As Ron Wyden, Section 230’s coauthor, puts it, Citron’s proposal, though “thoughtful,” would “inevitably benefit Facebook, Google and Amazon, which have the size and legal muscle to ride out any lawsuits.” And... all of that is true. But rather than deal with that fact, and highlight that this is the point all of Section 230's supporters are trying to make, Edelman brushes it off as typical anti-regulation nonsense. The thing about this argument is that a version of it gets trotted out to oppose absolutely any form of proposed corporate regulation. It was made against the post-recession Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which the conservative Heritage Foundation declares “did far more to protect billionaires and entrenched incumbent firms than it did to protect the little guy.” Federal food safety rules, fuel economy standards, campaign spending limits: Pick a regulation and a free-market advocate can explain why it kills competition and protects the already powerful. This is incredibly unfair. And it paints Goldman, Gellis, and myself as if we're regular fighters against any corporate regulation, which is simply not true (I mean, hell, look at our net neutrality coverage). Also, it's weird that this article comes out on the same day that the Heritage Foundation (according to Edelman, the kind of free market entity that fights back against any kind of regulations) came out and said 230 must be reformed or repealed. To lump us in with them as if we're all just "free market libertarians" is just weird. Especially when the "free market" groups he names... are on the other side on this issue. There is no attempt to seriously deal with the critiques that we raise about the various proposals to reform 230 and our explanations of why they would be problematic. They're just brushed off as anti-regulation. On the other hand, the Section 230 critics Edelman spoke to have their views presented without qualification or critique. It's as if Edelman has decided they are correct, and thus he does not need to test their theories, and that we are wrong, so our theories can be blithely dismissed. Separately, it's worth addressing one key argument the article raises, which I've seen many others raise before: that 230 must not be necessary for an open internet because other countries don't have it and everything is "fine" there. In this article, the comparison offered is... Canada. Maybe, as Lunney suggests, the common law would have developed something similar to the immunity provided by Section 230. But courts also could have come up with rules to take into account the troubling scenarios: bad Samaritan websites that intentionally, rather than passively, host illegal or defamatory content; platforms that refuse to take down libel, threats, or revenge porn, even after being notified. They might have realized that the publisher-distributor binary doesn’t capture social media platforms and might have crafted new standards to fit the new medium. Section 230, with its broad, absolute language, prevented this timeline from unfolding. This hypothetical scenario isn’t even all that hypothetical. The United States is the only country with a Section 230, but it’s not the only country with both a common law tradition and the internet. Canada, for example, has nothing analogous to Section 230. Its libel law, meanwhile, is more pro- plaintiff, because it doesn’t have the strong protections of the First Amendment. Despite all that, user-generated content is alive and well north of the border. News sites have comments sections; ecommerce sites display user reviews. Neutral providers of hosting or cloud storage are not hauled into court for selling their services to bad guys. Both of these paragraphs are worth addressing on their own, but it's important to see the two combined to highlight the issues with this argument. It is possible that the common law would have developed to create a 230-like situation. Indeed, as some will remember, in the early 2000s I had said that I didn't think 230 was necessary, since it seemed obvious that a website shouldn't be held liable for third-party content, and I hoped that courts would easily recognize this. However, history has made it clear that my belief was wrong. Over and over again we've seen individuals (and even a few courts) get this wrong, and assume that hosting third-party content should lead to liability. Section 230's purpose was to avoid the headache of having to go through this over and over again. That's a key part of what Goldman is talking about regarding the procedural benefits of 230. But the second paragraph is one that has made some people nod in agreement. Unfortunately, it elides many important details. First, it says that Canada is "alive and well" with third-party content, but that leaves out a lot of context, such as the nature of litigation in each country. According to a Harvard study on litigation rates of different countries, the US is way more litigious, with 5,806 lawsuits filed per 100,000 people, compared to just 1,450 per 100,000 in Canada. For better or worse, the US is a much more litigious society. That makes a difference. And there are all sorts of differences in the Canadian litigation context as well, including that Canada (like much of the rest of the non-US world) has a common law system in which the loser usually pays at least a portion of the winner's legal fees, deterring a significant amount of frivolous litigation. The US doesn't have that except in extreme cases, or a few very limited conditions (anti-SLAPP laws, certain copyright cases, extremely vexatious litigation). That explains a huge part of the reason why abusive litigation is so much more popular in the US. Plaintiffs often don't care if they win or lose, because the goal is just to hurt the defendant. In Canada that's harder to accomplish. Second, it leaves out the actual impact on speech in Canada, and simply rolls it all up as "alive and well." Except that's not quite true. While it does admit that libel law is "more plaintiff friendly" it leaves out how that works in practice, which shows why the first paragraph above is misleading as well. A perfect example of this was the saga of Jon Newton and Wayne Crookes that we discussed on Techdirt. At issue was that Newton, the operator of P2PNet, had simply linked to an article that a Green Party official, Wayne Crookes, believed was defamatory. In the US, such a case would have been kicked out of court quickly under 230. In Canada, the case that began in 2007 had to go through many years and many appeals and didn't end until late 2011 when Canada's Supreme Court finally ruled that merely linking was not defamatory. Literally two months after that case concluded -- even though Newton won -- he announced that he was done with the site. That story alone highlights the issues with the "it's fine in Canada" approach. It's not fine. And for a small site, it required years spent fighting a draining lawsuit that, while it eventually resulted in a win, meant that the site in question was basically done. And we've seen this in lots of other countries as well, including Argentina and India. While some other countries have eventually had 230-like rules established through the courts, it's often a long and arduous process for sites, and in the meantime makes them much quicker about pulling down any speech that might get them in trouble. Even worse, the idea that "Canada is fine, just a bit more pro-plaintiff" fails to take into account other realities of Canadian intermediary liability jurisprudence, including the infamous Equustek decision that argued the Canadian government could order Google (a non-party to the court case in question) to block a website from being accessed not just in Canada, but around the globe. That kind of decision should raise serious questions about Canada's actual commitment to free speech and whether or not such content is truly "alive and well" up north. Indeed, Edelman then states that maybe Canada's internet isn't really that open, giving the example of a media site that removes a bunch of comments in part because of legal reasons and the risk of being dragged into court. Bizarrely, he spins this as evidence that we don't need 230. Yes, websites with user-generated content do have to be more careful. Jeff Elgie, the founder of Village Media, a network of local news sites in Canada, told me that the possibility of getting sued was one thing the company had to take into account when building its comments system, which combines AI with human moderation. But it’s hardly the extinction-level threat that Section 230 diehards warn about. (Elgie said that, overall, only around 5 to 10 percent of comments get blocked on Village Media sites, and only a small subset of those are for legal reasons.) It is simply not true that “the internet” relies on Section 230 for its continued existence. Except no one says that the internet would go away completely. We just say that it would be a very different kind of internet -- one in which marginalized voices are less able to get through, stories like #MeToo get stifled in their crib, and smaller sites like mine are unable to exist. Indeed, there's plenty of empirical evidence of over-blocking, especially in countries without 230-like protections. Edelman doesn't address that beyond saying that Canada is fine. And, sure it's "fine" because we can't point to all the content that no one can see because it's never posted or not posted for very long due to over-blocking out of fear of legal liability. Edelman, a top journalist working for one of the largest media publishers in the world, may not care much as to how that impacts the less fortunate, the marginalized, and such. But we do. Finally, a point that we've made in the past regarding this "other countries" argument is that if you look around, you don't see any of those other countries producing many successful internet companies that rely on third-party content. That's certainly true of Canada. There's... Wattpad? Who else? Edelman dismiss this argument as "a pivot" (though it's not a pivot, it's the very important nuance we're trying to explain) and then dismisses it entirely saying it's not clear 230 really matters here. In response to this observation, staunch supporters of Section 230 generally pivot. They concede that other countries have blogs and comments sections but point out that these countries haven’t produced user-generated content juggernauts like Facebook and YouTube.(Set aside China, which has a totally different legal system, a closed internet, and private companies that are more obedient to the state.) Section 230 might not be responsible for the internet’s literal existence, they say, but it is necessary for the internet as we know it. There are a few ways to respond to this. One is that it’s hard to prove Section 230 is the reason for the success of American social media giants. The internet was invented in the US, which gave its tech sector an enormous head start. America’s biggest tech successes include corporate titans whose core businesses don’t depend on user-generated content: Microsoft, Apple, Amazon. Tesla didn’t become the world’s most valuable car company because of Section 230. This isn't a particularly compelling response. After all, while the US may have pioneered the internet, the biggest user-generated content (social media) companies were started at a time when the internet was truly global and widely adopted. Facebook launched in 2004. YouTube in 2005. Twitter in 2006. That's well past the time when the internet was new and just in the US. Furthermore, you can look at other evidence to tease out some of the differences -- as we did in our Don't Shoot the Message Board report in 2019. In that report, we looked at a wide variety of intermediary liability regimes and how they impacted startup creation and investment. One key finding was that the US didn't have nearly as much success with regards to startups in the copyright space as it did in other areas, and some of that could be explained by the fact that the DMCA is much more limiting that 230. In the music world, there are lots of examples of successful companies coming out of Europe -- such as Spotify, Soundcloud, Deezer and more. In other words, when we have more restrictive intermediary liability law, the evidence shows less successful US company creation. Edelman's final response to this argument is... just pure speculation. Another response is that even if Facebook does owe its wild success to Section 230, perhaps that’s not a reason to pop champagne. The reason we’re talking about reforming tech laws in the first place is that “the internet as we know it” often seems optimized less for users than for the shareholders of the largest corporations. Section 230’s defenders may be right that without it, Facebook and Google would not be the world-devouring behemoths they are today. If the law had developed slowly, if they faced potential liability for user behavior, the impossibility of careful moderation at scale might have kept them from growing as quickly as they did and spreading as far. What would we have gotten in their place? Perhaps smaller, more differentiated platforms, an ecosystem in which more conversations took place within intentional communities rather than in a public square full of billions of people, many of them behaving like lunatics. And, I mean... sure? Maybe? And maybe it wouldn't have happened that way, and we'd have something a lot worse that enabled a lot less free expression. Perhaps we would have had an internet where it was much harder to call out the rich and powerful for sexual assault or casual bigotry. That "maybe" seems like a difficult one to hang your "it'll be okay to change 230" hat on. And, indeed, just as Edelman points to Canada as his "proof" that the internet is fine without 230, we can point to the rest of the globe to say that his speculation here does not seem to be proven either. Indeed, what we've seen (as noted above) is much more aggressive suppression of speech, which is a big part of what we're concerned with. Also, if we look again at the copyright context, where no 230 exists, but rather a much more restrictive DMCA, we do not see this utopian better internet that Edelman speculates might have happened absent 230. We don't see "smaller, more differentiated platforms." Instead, we see the opposite. In the copyright realm, we see giant companies -- the few that have been able to hire giant legal teams to negotiate expensive deals. The smaller, more innovative startups mostly got driven out of the market by lawsuits quickly, even when they had strong legal claims. The actual evidence in the US context is that increasing legal liability doesn't lead to more "intentional communities," but simply fewer communities, and a very tiny number of giant companies with no real alternatives (unlike in the social media space, where there remain tons of alternatives). All in all, the article is still worth reading -- and Edelman does present a thorough look at much of the 230 debate. It's just pretty clear what he believes. And that's fine for an opinion blog where the goal is to make your own views clear. But Wired presents this as a featured cover story that highlights factual claims about how 230's supporters are wrong, and it doesn't actually do that. It sets up strawmen, ignores nuances and context, and tells a predetermined story with cherrypicked, non-representative examples. And that seems like a wasted opportunity.

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posted 3 days ago on techdirt
The xFyro Active Noise Cancelling Pro Earbuds utilize active noise canceling not just to block out ambient noise but optimize your listening experience by calibrating it based on a 4-mic system that listens to your surroundings and music. The ANC Pro also features a conversation mode that allows you to selectively amplify conversations and alarms so you can stay alert while you're immersed in your music. It has 7mm graphene-powered drivers, 100-hour battery life, and custom engineered ergonomic fit. It's on sale for $45. Use the code XFYRO5 to get $5 off. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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posted 3 days ago on techdirt
Never underestimate the power of technology to destroy lives. Flawed software used for the last 20 years by the UK postal service resulted in dozens of wrongful criminal convictions which are only just now being overturned. Judges have quashed the convictions of 39 former postmasters after the UK's most widespread miscarriage of justice. They were convicted of stealing money, with some imprisoned, after the Post Office installed the Horizon computer system in branches. [...] The clearing of the names of 39 people follows the overturning of six other convictions in December, This means more people have been affected than in any other miscarriage of justice in the UK. The notoriously buggy software debuted in 1999. Apparently it was unable to do math properly, resulting in reported cash shortages that actually weren't happening. Some employees attempted to make up these faux shortfalls with their own money by digging into savings or remortgaging their homes. Rather than address the problematic software, the UK Post Office went into prosecutorial overdrive, bringing cases against employees at the rate of one per week… for fourteen years straight. A total of 736 employees were prosecuted by the Post Office from 2000 to 2014. And yet, the UK Post Office continued to rely on software that was actively destroying lives. Marriages broke down, and courts have heard how some families believe the stress led to health conditions, addiction and premature deaths. "The past nine years have been hellish and a total nightmare. This conviction has been a cloud over my life," said former Oxfordshire sub-postmaster Vipinchandra Patel, whose name was cleared late last year. Seema Misra was pregnant with her second child when she was convicted of theft and sent to jail in 2010. She said that she had been "suffering" for 15 years as a result of the saga. By the end of 2019, the Post Office had agreed to settle claims brought by 555 employees. And now the last of the wrongful convictions have been overturned. But, so far, no one at the Post Office or Fujitsu (the software developer) has been held accountable for the nearly 20-year run of destruction they oversaw. That could change in the near future. The UK court seems completely unimpressed with the Post Office's actions (or lack thereof). At the Royal Courts of Justice in London, Lord Justice Holroyde said the Post Office "knew there were serious issues about the reliability of Horizon" and had a "clear duty to investigate" the system's defects. But the Post Office "consistently asserted that Horizon was robust and reliable" and "effectively steamrolled over any sub-postmaster who sought to challenge its accuracy", the judge added. Sure, everyone at the Post Office seems pretty apologetic now. But that's after 15 years of ignoring the problem and choosing to believe software rather than the people hired to do the job. Tech can make things better and increase productivity, but it's rarely flawless and generally shouldn't be considered more trustworthy than the people who have to interact with it on a daily basis.

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posted 4 days ago on techdirt
If there's one thing that the U.S. broadband industry is terrified of, it's price regulation. The idea that the government might eventually cap the rates regional monopolies can charge in the absence of meaningful competition keeps a lot of executives up late at night. But despite a lot of fear mongering by telecom industry folks on this front, the U.S. has never really gotten even close to that reality. Repeatedly, even the most modest of non-price related regulatory telecom oversight efforts (from net neutrality to privacy) are routinely and easily dismantled by powerful lobbyists either before they can take effect or not long after. Recently New York State passed a new law (pdf) demanding that regional broadband providers (Verizon, Charter Spectrum, and Altice) provide low-income consumers $15, 25 Mbps broadband tiers to help them survive COVID. The goal: to try and help struggling Americans afford the high cost of broadband. Under the proposal ISPs are also allowed to offer $20, 200 Mbps tiers, with any price increases capped at two percent per year. Regulators engaging in anything even close to price regulation of regional monopolies is, again, said monopolies' worst nightmare. As a result the broadband industry quickly sued New York, insisting that the state is forbidden from passing such a law thanks in part to the Trump administration's net neutrality repeal. While many folks think that repeal just killed net neutrality rules, that was never true. It also killed much of the FCC's consumer protection authority, including its ability to adequately respond to billing fraud (which happens a lot in residential broadband thanks to misleading surcharges and fees). The repeal even went one step further in claiming that states also aren't allowed to protect consumers from telecom industry shenanigans. The problem: the courts haven't been looking too kindly upon this argument so far. In part because once the FCC abdicated its regulatory authority over telecom, it lost any authority to tell states what they can or can't do. The industry has used similar arguments to try and attack state-level net neutrality rules, and it hasn't gone particularly well for them: "An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford Law Professor Barbara van Schewick told Motherboard. “When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections." Basically, the broadband industry has spent four years having its cake and eating it too, demanding that nobody on either the state or federal level has any authority to tell broadband providers what to do, whether we're talking about basic rate regulation or even the most basic of consumer protections. While the Trump and Ajit Pai FCC thought that was just nifty, it's an argument that's not being taken particularly seriously by the States, which have simply doubled down on their own regulatory efforts to fill the giant consumer protection void left by Trump-era apathy: "I knew giant telecom companies would be upset by our efforts to level the playing field, and right on cue, they're pushing back," New York Governor Andrew Cuomo said in a statement. "Let me be abundantly clear—providing internet in the Empire State is not a god-given right. If these companies want to pick this fight, impede the ability of millions of New Yorkers to access this essential service, and prevent them from participating in our economic recovery, I say bring it on." Keep in mind New York is simply trying to force ISPs to offer low-cost service to low-income families. Despite the posturing here by Cuomo, the state likely lacks the political courage to take this idea one step further and regulate prices for all New York State residents truly upsetting deep-pocketed campaign contributors. Again, none of this would be necessary if we had adequate competition in residential US broadband. But because pushing policies that increase competition upsets AT&T, Verizon, Comcast, and Charter, a corrupt Congress and captured regulators aren't willing to really do that. Meanwhile, the US telecom sector continues to whine about a "fractured landscape of state-level requirements," hoping you'll ignore the fact that they created this entire mess by repeatedly, brutally attacking absolutely every effort at even the most modest federal consumer protection oversight.

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posted 4 days ago on techdirt
Peloton is, as they say, having a rough week. While the company has been something of a pop culture darling for several years, it also got a nice boost from this lovely COVID-19 pandemic we've all been suffering through for more than a year now. Still, no company gets through its full lifecycle unscathed and this week has been a week I'm certain the Peloton folks would love to forget. We'll get started with the less-Techdirt centric part of this, which is that Peloton recently had to recall two of its treadmills after it turns out those treadmills occasionally enjoy eating people, especially very young children. Peloton has received at least 72 reports of adults, children, pets and/or objects getting dragged under their Tread+ treadmill. In those incidents, 29 children suffered injuries, which included second- and third-degree abrasions, broken bones, and lacerations, the US Consumer Product Safety Commission noted. In February, a father reported to the CPSC that his 3-year-old son was pulled under a Tread+ and trapped. When the father discovered his son and was able to free him, the toddler was pulseless and not breathing, according to the report. Fortunately, the boy was resuscitated, but he “now has significant brain injury.” The boy had tread marks on his back matching the slats of the Tread+, as well as a neck injury, and petechiae (small blood spots) on his face, presumably from blood flow being cut off. When Peloton learned of the “unthinkable” death of the 6-year-old in March, Peloton CEO John Foley sent a note to customers noting the “tragic accident” and highlighting safety warnings for its treadmills. The March 18 note cautioned customers to “keep children and pets away from Peloton exercise equipment at all times.” Those warnings were glaringly insufficient and the CPSC basically told people to stop using the product. In mid-April, Peloton's CEO informed customers that the company was aware of the CPSC advice, but that the company was not planning to stop selling the treadmills at all. Instead, the company essentially said that if the product warnings were adhered to, there was no problem. It was only this week when the company admitted that this was a mistake in approach and issued a recall for the two treadmills in question. That it should have done so, and subsequently added physical protection to its products to avoid all of this, really should have been painfully obvious once we got to the part where a 3 year old suffered lifelong injuries and treadmarks across his back and another child... you know... died. But the troubles for the company keep on coming. The most recent news is that security researchers found that Peloton had exposed customer data to, well, basically anyone with a little technical know-how and then tried to keep the whole thing silent with an enormously insufficient "fix." Researchers at security consultancy Pen Test Partners on Wednesday reported that a flaw in Peloton’s online service was making data for all of its users available to anyone anywhere in the world, even when a profile was set to private. All that was required was a little knowledge of the faulty programming interfaces that Peloton uses to transmit data between devices and the company’s servers. The reporting indicates that this exposure included customer information such as their user IDs, group memberships, workout information, age, gender, weight, and more. You know, probably not the sort of thing customers that set their profiles to private while trying to exercise and/or lose weight would want exposed to anyone that wanted to take a look. The APIs apparently required no authentication. When Pen Test Partners reached out to the company and informed them of all of this, the company immediately acknowledged the information... and then did nothing for two weeks. Two weeks later, the Peloton rolled out a half-fix without informing anyone. Rather than providing the user data with no authentication required at all, the APIs made the data available only to those who had an account. The change was better than nothing, but it still let anyone who subscribed to the online service obtain private details of any other subscriber. When Pen Test Partners informed Peloton of the inadequate fix, they say they got no response. Pen Test Partners researcher Ken Munro said he went as far as looking up company executives on LinkedIn. The researchers said the fix came only after TechCrunch reporter Zack Whittaker, who first reported the leak, inquired about it. "I was pretty pissed by this point, but figured it was worth one last shot before dropping an 0-day on Peloton users," Munro told me. "I asked Zack W to hit up their press office. That had a miraculous effect – within hours I had an email from their new CISO, who was new in post and had investigated, found their rather weak response and had a plan to fix the bugs." This doubling up of a callous response to the physical and virtual safety of its own customers is a horrible look for Peloton. Again, with the exception of a possibly ill-conceived advertisement campaign a few years back, this company is an absolute media darling with a fair amount of good will built up for itself. Simply by not taking its customer's safety seriously, that good will seems to be pretty seriously at risk. And, it's worth noting, breaches and exposures like this almost always turn out to be more serious than first reported. Maybe that won't be the case this time. Or maybe Peloton's bad time is about to get even worse.

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posted 4 days ago on techdirt
Last month we wrote that Rep. Devin Nunes' favorite lawyer, Steven Biss, who has been filing frivolous, vexatious SLAPP suit after frivolous, vexatious SLAPP suit, was finally facing some sanctions. The specific case did not directly involve Nunes, but rather one of his aides, Derek Harvey, who had filed a ridiculous SLAPP suit against CNN. As we wrote last month, the court had easily tossed the original lawsuit and warned Biss not to file an amended complaint unless he had a credible legal theory. Biss did not have a credible legal theory, but he still filed an amended complaint. And thus, the court issued sanctions, saying that Harvey, Biss and other lawyers would be on the hook for CNN's legal fees. The latest filing in the case is the bill coming due. Harvey and Biss need to pay CNN $21,437.50 in legal fees (and an additional $52.26 in costs and expenses). That might not seem like that much in the grand scheme of things (especially for a lawyer who has claimed his client, Devin Nunes, is owed over a billion dollars for defamation, but it is still real money that someone is going to need to pay -- though it remains an open question as to who is actually going to pay it). There's not much to see in the ruling itself, as it basically says that the fees CNN's lawyers outlined are within the standards that the court's local rules say are "presumptively reasonable." The lawyers admit that they're actually asking for less than they normally charge in order to keep them "reasonable" in the Court's eyes, and the Court basically says "sounds good." It does often seem that lawyers who file tons of frivolous and vexatious lawsuits are able to get away with it for a while, with courts giving them many, many chances and being extremely reluctant to issue sanctions. And, even when sanctions are issued, they tend to be relatively low. However, with such repeat offenders, we've often seen that courts across the country take notice, and once one court has sanctioned this kind of behavior, it can open the floodgates. We'll see what happens in other Biss lawsuits.

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posted 4 days ago on techdirt
For years -- years! -- Techdirt has been a place that has argued that offering a product or service for free, where that made sense, could actually be a fantastic business model. While there are lots of examples of that sort of thing these days, you have to understand that this concept was met with derision and scorn by all kinds of industry folks big and small. Some said anyone offering something for free had no clue how to run a business. Others even more absurdly claimed that there was literally no way to compete with "free." Well, the video game industry has long claimed to have a "free" problem when it comes to piracy. The problem with combining those claims with claims that you can't compete with that sort of thing is that the success stories are there and you don't exactly have to look hard for them. Back in 2018, we talked about Fortnite, a free game that makes its money in all other sorts of ways. And by "its money" I mean that it was making $300 million per month. But then there were claims that all of this was some flash in a pan rather than anything sustainable. The problem with that is that, thanks to the trial just kicking off between Apple and Epic, internal Epic documents indicate that Fortnite made the company $9 billion over the course of two years. Today, the trial between Epic and Apple finally began after nearly nine months of legal filings and pre-trial hearings. During the court proceedings, new documents surfaced providing more data on how these companies operate. For example, we now know that Fortnite made $9,165,000,000 in two years. That huge number comes from a financial board presentation report that Epic created in January 2020. In this document, Epic stated Fortnite made just over $5.4 billion dollars in 2018. The following year, the popular battle royale game pulled in $3.7 billion. This is not someone competing with free; this is someone dominating piracy into total irrelevance. As Kotaku points out, it's worth comparing these numbers to numbers spent elsewhere in the entertainment industry. Microsoft bought Bethesda for $7.5 billion, less than what this one game made. And, yes, Fortnite is one of the most wildly successful games of all time. But that isn't really the point. The point is that there are business models that make "free" work and this is the shining example of that being done. Any whining from the industry about how this one example isn't fair is just that: whining. It's on business leaders to innovate into new business models that work in the modern era. Epic has figured out how to do that. And not just with Fortnite, either. We already discussed how Epic is using free video game giveaways in the Epic Store to build up the adoption of that platform. Despite the losses the company incurred with this practice, Epic appears to be super happy about it all. There needs to be more of this, even as similar business models appear to be picking up speed. More success for the industry by adopting a model where piracy is simply taken out of the equation.

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posted 4 days ago on techdirt
Late last year, we wrote about how bizarre it was that Senator Thom Tillis was trying to force through a felony streaming bill by attaching it to an end-of-the-year appropriations bill. There were so so many problems with this both in terms of what the bill would do, and in the procedural way it was done. First, Tillis got it attached to the "must pass" appropriations bill before he'd even introduced it. That meant that there was no debate and no direct votes on his bill. You can kinda maybe (but not really?) see where that might make sense for uncontroversial bills, but the felony streaming bill... was not that. Long time readers of Techdirt will know that Hollywood has been pushing for a felony streaming bill for over a decade, and it was originally set to be attached to the infamous SOPA/PIPA bill until the internet rose up and made it clear that it would not accept Congress passing such a dangerous bill. Given that, you'd think that any one who had an honest reason for pushing such a bill would open it up to debate, rather than hide it away in a giant bill. That should give you one giant hint as to why Tillis pushed it the way that he did. Second, there have been multiple reports about just how much Hollywood has invested in Senator Tillis. And we've heard from multiple people now that Tillis bristles at the idea that he's somehow owned and operated by Hollywood lobbyists. Of course, it would help if he didn't repeat their talking points at every turn, and turn around and introduce massive copyright reform that was basically an early Christmas gift for Hollywood. But if Tillis wants to claim that he's not just doing Hollywood's billing, you'd think he would not have allowed this to happen. His chief staffer working on these copyright bills, Brad Watts, teamed up with Fox's chief DC lobbyist, Gail Slater, to write an article patting each other on the back for getting the felony streaming bill passed. I've spoken to multiple DC policy folks both inside and outside of Congress and literally none can think of any other example when a Congressional staffer and a top corporate lobbyist teamed up to write an op-ed together. It's literally unprecedented. More than one person I spoke to expressed complete bewilderment that this op-ed even came to be. "How did no one in Tillis' office not realize that this was a bad idea?" was the quote a staffer in another Senate office told me. "It's shocking." But even worse than this out-and-out admission that Tillis does what Hollywood asks him to do, is the content of this article, which is not just revisionist history, but actually celebrates the sneaky way in which Watts (and apparently Slater!) helped sneak this bill through. Some public policy issues are solutions in search of a problem, but unlawful streaming of copyrighted content is emphatically not one of those issues. U.S. Senators Thom Tillis (R-N.C.) and Patrick Leahy’s (D-Vt.) Protecting Lawful Streaming Act of 2020 (PLSA) became law in December 2020 as part of the Consolidated Appropriations Act, 2021. The importance of this law cannot be overstated. Not only did the PLSA modernize criminal copyright law in a long-overdue and positive direction, but it may also signal a new model for legislating digital copyright law going forward. First of all, I call bullshit that this was "long overdue," or that "the importance cannot be overstated." The article notes, rightly, that legal streaming has become more common, but takes it on faith that "illegal streaming" somehow "costs the U.S. economy nearly $30 billion per year." Their support for that is... a link to a CNN article quoting Tillis. So, Tillis's staffer, who is in charge of all of his copyright efforts, is quoting his boss giving a citation that this same staffer almost certainly told his boss to say in the first place. Nifty. The COVID-19 pandemic further exacerbated the harm from unlawful streaming as worldwide lockdowns led to a surge in online streaming. Not surprisingly, this surge in streaming included an aggressive uptick in unlawful streaming. According to analytics firm Muso, the unlawful streaming of films alone increased by 33 percent globally during lockdowns. The rise was even higher in the United States at an eye-popping 41 percent increase in unlawful streaming during lockdowns. I mean, I don't want to make too many assumptions here, but maybe (just maybe) the reason for the uptick in illegal streaming was because millions of people lost their jobs, had no money because Senator Thom Tillis tried to block stimulus packages, and are stuck at home because there's a global freaking pandemic going on. So, maybe it's not like those people have the spare cash to sign up for authorized streaming services at this moment, and it's not exactly a priority given everything else going on. The article goes on to falsely claim that streaming not being a felony was "a loophole." It was not. As was discussed when this first came up a decade ago, there were legitimate reasons why Congress chose not to make infringing streaming a felony offense. Indeed, there are strong arguments that copyright should solely be a civil offense, and never a criminal one. Making it criminal basically is making US law enforcement the private tort enforcer for Hollywood, which represents a massive subsidy to those industries, such that they no longer have to get their own hands dirty (or spend their own money) on taking infringers to court. Then, the article engages in some incredibly historical revisionism regarding the original attempt at making streaming a felony, and what happened with SOPA/PIPA. Despite careful crafting by the legislation’s sponsors, PIPA and SOPA were met with opposition from a range of legitimate stakeholders representing internet and consumer equities. Their advocacy against PIPA/SOPA culminated in over 5 thousand petitions per minute to the U.S. Congress, about 4 million tweets on the legislation, and petitions submitted to Congress containing 8 million signatures. Concerns about the felony streaming provisions in PIPA/SOPA centered on the perception that, as drafted, it could lead to criminal prosecution of individual artists who regularly used platforms such as YouTube to upload their performances. Ultimately, the sheer intensity of the opposition to PIPA/SOPA culminated in the legislation being withdrawn from consideration. This opposition took creative content industries and legislators by surprise and resulted in an unwillingness, for many years, to address what was perceived as such a controversial, complicated, and even unfixable issue.  I mean, just the very idea that SOPA/PIPA were crafted "carefully" is laughable for anyone who knows the real story, in which Lamar Smith did a Leroy Jenkins move, yanking the bill away from Rep. Bob Goodlatte (who had tried to write a more carefully constructed bill) and lit it up like a Tillis-style Christmas tree for Hollywood. Then there's this fun bit of nonsense: So, What Changed? Why Now? In the years since PIPA/SOPA, the entire internet and digital copyright ecosystem has changed. Simultaneously, traditional lines dividing content creator industries and tech-heavy startups have blurred, creating more shared interests and equities. Several internet platforms have evolved their business models and are now original content creators themselves. No, what changed this time was that you refused to introduce it through the normal process, kept it hidden until after it was already lumped into the must pass appropriations bill that was being debated contentiously for other reasons between Congress and a lame duck President in the middle of a pandemic (and an insane propaganda campaign to undermine the results of an election). That's what changed. Senator Tillis and Leahy’s bill evaded the criticisms that the felony streaming provision in PIPA/SOPA received and does not capture individual internet users or legitimate businesses and content creators, including, likely to some people’s disappointment, Justin Bieber. Members of Congress and copyright stakeholders across the board were invited to the negotiating table on an equal footing. Negotiations proceeded in good faith and no stone was left unturned as stakeholders gamed out the real-world implications of the draft legislative text. No, this is not what happened. At all. I spoke to stakeholders from consumer rights groups and internet platforms, and they said that they were just as blindsided by this bill as we were. Again, if this was all about getting all the stakeholders together and coming up with a workable bill for everyone why didn't Tillis just release it as normal? Why did he get it stuffed into the appropriations bill, and not even release the text of the bill until it was clear that there would never be an up-and-down vote on the bill itself? And that's also why this bill "evaded criticism." Because it was done in a way and at a time when so much other stuff was going on. That's only underlined by the fact that Tillis' top copyright staffer felt he could reveal "the sausage making process" in combination with one of Hollywood's top lobbyists, without anyone blinking an eye. The fix was in, and that fix sure looks corrupt. At the very least, this is the kind of "soft corruption" that we've talked about before. Even if everything was legitimate, just the fact that Watts and Slater know they can co-author an article about how they got this controversial bill approved gives the public the impression of corruption, and supports the idea that Tillis is completely in the tank for Hollywood. It damages public trust in government, as it underlines the idea that Senators like Tillis are there to serve the desires of their funders, and not the public he was elected to represent.

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posted 4 days ago on techdirt
This week New York Attorney General Leticia James unveiled a new report (also see accompanying statement) proving what most people already knew: the broadband industry was behind the use of fake and dead people to generate bogus support for the FCC's controversial 2017 repeal of net neutrality. The short version: the AG found the broadband industry used a non-profit lobbying organization, Broadband For America, to pay three different marketing firms about $4.2 million to generate artificial support for a plan that was opposed by a bipartisan majority of Americans. That artificial support included flooding the FCC comment system with millions of comments from fake and even dead people supporting the effective lobotomization of the FCC. According to the NY AG, the firms lured consumers in with promises of sweepstakes prizes and gift cards in exchange for providing their personal information, which was then used without their consent to flood the FCC with fake support for its unpopular proposal: "Instead of actually looking for real responses from the American people, marketing companies are luring vulnerable individuals to their websites with freebies, co-opting their identities, and fabricating responses that giant corporations are then using to influence the polices and laws that govern our lives. But, today, we are taking action to root out this fraud and the impersonation that has been corrupting the process for far too long. From net neutrality rules to laws affecting criminal justice reform, health care, and more, these fake comments have simply been generated to influence too many government policies, which is why we are cracking down on this illegal and deceptive behavior. My office will continue to shine a spotlight on abuses and disinformation and ensure those who break the law are held accountable." While the three companies involved in this effort will face penalties of up to $4 million, the NY AG isn't yet punishing (or even naming) the giant broadband providers that actively funded and supported the effort behind the scenes. All told, the AG's office found that roughly 18 million of the more than 22 million comments the FCC received during the agency's public comment period were fake. About 8.5 million of those comments were sent by people who simply didn’t exist, and many others used hijacked identities including my own and even several Senators. It's worth repeating that the Trump FCC 2017 repeal of net neutrality didn't just "kill net neutrality rules." It actively hamstrung the FCC's consumer protection authority, and even attempted to ban states from being able to fill the consumer protection void. In short, telecom giants AT&T, Comcast, Verizon, and Charter convinced the FCC to effectively lobotomize itself. But because the public overwhelmingly opposed that policy proposal, they used marketing firms to create a sound wall of entirely artificial support. You know your arguments are sound when you have to use fake and dead people to make them for you. It's also worth reminding folks that former FCC boss Ajit Pai actively blocked law enforcement inquiries into who was behind the fake comments, according to NY's previous AG. So not only did Pai repeatedly parrot fake data points provided by industry to support his unpopular repeal, he made sure that law enforcement couldn't adequately investigate the use of fake and dead people to provide illusory support for the plan. Anybody who still thinks that the repeal was a good faith effort to improve the industry, aid consumers, or boost investment is living in an alternate reality of their own creation. As we've noted previously this is a problem that isn't just limited to the FCC and net neutrality. Numerous policy efforts, across numerous agencies, have been subject to similar disinformation campaigns aimed at generating fake opposition to policies that attempt to rein in US corporations. In fact the AG's office found that these same three firms had been used in 100 such campaigns across numerous policy proposals. And while the marketing companies are facing a little heat, it's extremely rare to see the companies behind the efforts held accountable in any meaningful way.

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What's the career penalty for spending four straight years lying repeatedly about the illusory benefits of mindless telecom deregulation? None, apparently. Surprising nobody, former FCC boss Ajit Pai and his giant goofy coffee mug are headed to private investment firm Searchlight Capital Partners, which invests in the telecom and other sectors. He's also been rewarded with a new gig at the American Enterprise Institute, where he'll be given a platform to spend another twenty years falsely claiming that lobotomizing U.S. telecom regulators, turning a blind eye to the perils of telecom monopolization, and generally ignoring consumer welfare results in telecom investment Utopia: "As FCC chair, Pai justified his deregulatory agenda by using faulty data and taking credit for broadband deployments that were planned before he became chairman. Pai claimed that the Title II common-carrier regulations he repealed had prevented broadband-network investment, even though ISPs themselves told investors that wasn't true. He never raised the FCC's broadband-speed standard and claimed on his way out of the FCC that Americans still only need download speeds of 25Mbps and upload speeds of 3Mbps." There was also that time that Pai blocked a law enforcement inquiry into the broadband industry using fake and dead people to generate artificial support for policies the public (and most objective experts) aggressively disagreed with. And there was also that time his office made up a DDOS attack to try and explain away the fact the agency website crashed in the wake of millions of pissed off John Oliver viewers. But again, Pai was mostly known for just making up data that supported policies that, with the occasional exception, largely just benefitted the industry's most dominant players. Pai's entire policy schtick was that if you obliterate both state and federal oversight of regional telecom monopolies, magic happens. But while deregulation can sometimes help functional, healthy markets, there's twenty years of evidence showing that when you neuter oversight of Comcast and AT&T, these natural monopolies just double down on predatory behavior. It's why Americans pay some of the highest prices in the world for spotty, sluggish broadband and terrible customer support. While there's a large contingent of industry-allied folks and free marketers who want to pretend this is a debate, it isn't. US broadband is mediocre in nearly every major broadband metric because our policy makers have spent twenty years crafting policies that prioritize one thing: the revenues of the biggest, most politically powerful telecom giants. That the revolving door undermines public trust and results in policies that coddle these monopolies won't even enter the conversation, since we stopped caring about that stuff years ago. After all, former FCC boss Michael Powell, also a huge fan of baseless claims that deregulation fixes everything, has enjoyed a long, healthy stint as the cable industry's top lobbyist without anybody batting an eyelash. The same goes for a bipartisan assortment of other FCC officials, whether it's Mignon Clyburn (immediately left the FCC to go lobby to help T-Mobile's merger), Meredith Attwell Baker (wireless industry, Comcast), and countless others. And the U.S. press, ever desperate to cover complicated policy subjects from the view from nowhere, is more than happy to parrot the positions of these folks while either downplaying or ignoring any conflicts of interest. When you can spend four years spreading obvious nonsense about the benefits of coddling natural monopolies and the only penalty is...a big wad of cash and a big platform to continues spreading falsehoods... it's not hard to understand why the U.S. telecom sector has spent the better part of two decades stuck in a state of perpetual, expensive, dysfunction.

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posted 5 days ago on techdirt
It's hardly news that Vladimir Putin is cracking down on supporters of Alexey Navalny, or on the journalists who are brave enough to report on the wave of protests in support of the imprisoned opposition leader. But there are some interesting wrinkles to how this is happening. For example, in a move that will not surprise Techdirt readers, Moscow's massive facial recognition camera network -- supposedly set up to enforce quarantine restrictions, and to catch criminals -- has been re-purposed, as Bloomberg reports: Police tapped the surveillance system to identify and detain dozens of people who attended last week's protests in the Russian capital in support of jailed Kremlin foe Alexey Navalny. More than 50 were picked up over the following days, including several journalists, according to OVD-Info, an independent human-rights monitoring group that gathers information on detentions. Nothing too surprising there, perhaps. But the RFERL.org site points out an important shift in the Russian authorities' tactics. In the past, the police detained thousands of people who had participated in unsanctioned demonstrations. This time, a token two to three percent of the protesters at a rally were arrested, apparently allowing the rest to go free. However, this is actually part of a new, and even more cruel approach: in recent days, Russian police have unveiled a new strategy, using surveillance-camera footage and other techniques to identify demonstrators and track them down, days after the event. The opposition politician and political analyst Leonid Gozman explains: "Now we have a different situation," he continued. "They are signaling to everyone: 'Go ahead and march, guys, but a year from now you can expect we'll come, expect a knock at your door. And we'll come or not as we wish....' Now they have placed everyone in that position." It's a clever approach. It means anyone coming away from attending a demo is unsure whether they have been identified there. The absence of any immediate action by the authorities no longer means protesters have escaped notice. Instead, a kind of digital sword of Damocles hangs over them, waiting to fall at some future, unknown date. The painful uncertainty this generates will probably be enough to dissuade many people from taking part in future demos -- a big win for the authorities, obtained at very low cost. This cat-and-mouse game with protesters is only possible thanks to Moscow's blanket surveillance cameras and advanced facial recognition systems. Where, in the past, police could only arrest people at a demonstration on the spot, because there was no sure way to find them afterwards, now their faces on CCTV are enough. Once photographed and identified, there is no need to arrest them immediately, which allows the authorities to create this new and debilitating anxiety among protestors that one day there will be that dreaded knock on the door. Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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