Crooked Bough News Round-up

— Winnie The Pooh Escapes Copyright Hell, Grabs Some Weapons, And Immediately Gets Kicked Out Of Hong Kong

 

at 3/29/23 1:15pm

The life-plus-seventy-years sentence imposed on Winnie the Pooh by Chers ex-husband is finally over. Petitions for an early release went unheeded, forcing the butt naked childhood icon to perform tricks for the heirs of its creators estate until it was finally allowed to roam free nearly 40 years after the bears sentence should have been commuted. Poohs freedom prompted questions about what he might do following his release, the best of which was posed by comic artist Luke McGarry. McGarry suggested the future would bring us a far less innocuous Pooh Bear in this extremely prescient tweet: Less than a year later, the question posed by Christopher Robin had been answered in the affirmative. A horror film utilizing characters from A.A. Milnes creations debuted. Entitled Winnie the Pooh: Blood and Honey, the horror film turns Pooh and Piglet into partners in slashy crime, presumably much to the chagrin of the former rights holders. And definitely to the chagrin of critics and audiences alike, who possibly wouldnt have minded a more transgressive Pooh Bear, but desired something far more clever and watchable than this hustled-into-existence transformative work. While we await the inevitable horror variation of Disneys prime mover sometime in the next couple of years, well have to make do with Winnie-the-Murderer. Well, some of us will. The film has been booted out of Hong Kong, but not necessarily because it turns a comforting childhood icon into a kill-crazy murderer. Film distributor VII Pillars Entertainment announced on Facebook that the release of “Winnie the Pooh: Blood and Honey” on Thursday had been canceled with “great regret” in Hong Kong and neighboring Macao. In an email reply to The Associated Press, the distributor said it was notified by cinemas that they could not show the film as scheduled, but it didn’t know why. The cinema chains involved did not immediately reply to a request for comment. The problem here likely isnt the bloody content or the lazy subversion of childhood innocence. No, the problem here is most likely Chinas president, Xi Jinping. Critics and shitposters in China (and Chinas newest subservient domain) have deployed plenty of memes depicting President Xi as Winnie the Pooh due to his passing resemblance to the notorious honey fiend. This has resulted in some seriously weird censorship efforts and this ejection of the Pooh-based horror film appears to be a continuation of that censorship theme. Allowing Hong Kong residents to view content that might mentally link the president to a surprisingly violent stuffed animal is the sort of the thing that simply cant be allowed, especially since this comparison is far more apt than merely noting a facial resemblance between Xi and a childs harmless imaginary friend. The crackdown continues. And the Hong Kong government is trying to alter the narrative by claiming (without a shred of credibility) that theater owners arrived at this decision on their own. The Office for Film, Newspaper and Article Administration said it had approved the film and arrangements by local cinemas to screen approved films “are the commercial decisions of the cinemas concerned.” It refused to comment on such arrangements. A screening initially scheduled for Tuesday night in one cinema was canceled due to “technical reasons,” the organizer said on Instagram. I supposed a forced cancellation could (very charitably) be called a technical reason. No one really believes these statements from the governments censors, not even the censors themselves. But theyre the ones with power, so everyone just has to pretend theater owners decided, independently, to cancel more than 30 planned showings, all within hours of each other. Theres a murderous Pooh Bear still wandering the streets of Hong Kong, if only in spirit. But its not the protagonist of the film the government wont allow to be shown.

[Category: 1, china, copyright, hong kong, public domain, winnie the pooh, xi jinping, xi jinping looks like winnie the pooh]

— As The Social Media Moral Panic Continues, People Keep Highlighting How Much Value It Actually Provides

 

at 3/29/23 11:39am

I know we’re deep, deep, deep into the moral panic about social media being uniquely awful, especially for kids. It’s driving all sorts of nonsense, including the false idea that we’re in a uniquely excessive period of depression, or that it’s been “proven” that social media makes kids feel bad. But… that’s not what the data actually show. At all. Much of this we’ve discussed before, but I think it’s important to highlight again. A lot of people focus on Jonathan Haidt’s work on the impact of social media, but many experts have highlighted that Haidt is a master of cherry-picking studies that support his thesis, and ignoring those that don’t. And even within the stats he uses, he’s been known to cherry-pick the time frames to avoid some more difficult questions. This is quite notable on his claims about suicide rates. Haidt focuses on the rate between 2000 and 2020, which definitely does show an uptick in the suicide rate: !function(){"use strict";window.addEventListener("message",(function(e){if(void 0!==e.data["datawrapper-height"]){var t=document.querySelectorAll("iframe");for(var a in e.data["datawrapper-height"])for(var r=0;r But, if you go back a little further, you quickly realize that the suicide rate was actually much higher in the 1980s and 1990s. If anything, we should be studying why the rate declined so much at the end of the 90s and into the early 2000s rather than assuming social media must be the cause: !function(){"use strict";window.addEventListener("message",(function(e){if(void 0!==e.data["datawrapper-height"]){var t=document.querySelectorAll("iframe");for(var a in e.data["datawrapper-height"])for(var r=0;r As for the “proven” claims of making kids feel bad about themselves, that’s always people’s misleading interpretation (based on misleading reporting) of internal studies that Facebook did. Those studies did show that a somewhat small percentage of users self-reported that Instagram made them feel worse about themselves. But the same data actually showed a much larger percentage said it made them feel better about themselves. Somehow, that part is never reported even as it’s clear from the data: The other chart that gets highlighted is even more damning. Facebook surveyed teens, both boys and girls, on 12 different categories regarding whether or not Instagram made them feel better or worse, and (by a wide margin!) boys said it made them feel better on all 12 items. For girls, that was the case for 11 out of the 12 times, and only in one area did “made it worse” edge out “made it better” (and only barely, the two are effectively equal): And, the point of this study, as you can tell by the fact that it was highlighted in the slide title by the Meta researchers, was to try to deal with that and fix that one problematic area and try to help change that fact. Yet, all the headlines and claims repeatedly will state, without context, that “Instagram makes girls feel worse about themselves.” That’s… not very accurate in context. Anyway, against this background (which is now leading to a variety of stupid lawsuits and even stupider legislation) I keep hearing really nice stories about how people have used social media to find communities and deeply enrich their lives. Last month, Wired had a really nice article about someone who notes that she “found her family on social media.” The author, Kim Haggin Rossi, talks about her own interest in old neon signs, and she found a community of other aficionados on Instagram, who became real life friends, with a closeness that has lasted. I followed fellow sign shooters on Instagram, and the accounts they followed, and they followed me back. The next thing I knew, with some trepidation, I was driving to Las Vegas to meet a group of about 20 of them, roughly aged 25 to 60, from all over the US and Canada. Los Angeles–based writer, Steve Spiegel, whom I met on that first trip and who’s become a dear friend I connect with daily, shares my apprehension: “I still remember sitting at the Burbank airport thinking, ‘I’m about to spend a weekend in Vegas with a bunch of people I met on an app! This is crazy!’” Neither of us knew this trip would be the start of an inspiring, supportive community of kindred spirits who’d wind up forever friends. Since that trip, many of us stayed in regular, even daily, contact. We met up for countless local “sign hunts,” traveled across the United States (and once to Cuba), and had a few group exhibits. The ragtag group of 20 strangers in Las Vegas became an international community of over 220. In 2017, four members—Spiegel, Will Hansen, and Mike and Marla Zack—christened the group Signs United. The group was inclusive and open to any vintage neon lovers. I have to admit that my own experience has been similar. People I know who are not active social media users seem to have a more limited friend group: generally people they know from work, or other parents where their kids attend school. But the more active social media users I know have much larger, wider, and more diverse friend groups, and frequently around shared interests, rather than location or happenstance. Now, my experience and the one in the article are of adults on social media, so there are questions as to whether or not it’s different for kids. But I don’t think it is. I mean, Danah Boyd has been studying this stuff for decades, and consistently finds that teenagers do what teenagers always do: they just want to hang out and socialize with friends… and explore and experiment to find out who they really are. And the internet often provides the best way to do exactly that. She’s been warning adults to calm down for over a decade, but apparently it’s not working. The NY Times recently hosted a panel of 11 to 14 year olds, to ask them questions about what they wished adults understood about their generation. It may not be a representative sample, and you may wonder about whether or not the venue may have caused the children to represent themselves in a certain way, but many of them seemed to highlight how valuable the internet is. The whole discussion is actually quite interesting, and again suggests that they’re no different than kids of basically any generation. They want to be social. They want to find where they fit in. In some cases, the kids are using technology to be creative: Or they sometimes use social media to plan out how friends nearby can meet in person. Also there are lots and lots of statements about how the internet is helping these kids learn to communicate and to be themselves. The kids seem to know that there’s a lot of nonsense online, and not to take most of it seriously, though (as is often the case with people of all ages) some are at least concerned that some, namely others, may be falling for nonsense online. The kids certainly have mixed feelings about their internet usage, but a lot of them generally seem to think it helps them better connect with their friends: Meanwhile, so much of the conversation around the moral panic focuses on the (unproven) claim that social media is stressing kids out. Here, the kids are asked what stresses them out and they all say school, or big societal issues. None of them say social media. Perhaps the schools should be suing themselves for all this stress they’re putting on kids? Later, the kids are asked what makes them nervous or scared about getting older, and… they say normal adult things. Nothing to do with the internet. There’s a lot more in there, but it’s another example of kids just being kids, and the internet and social media just being… a tool they use sometimes, often to better connect with their friends. I did see some people reading through this, through what seems like a very distorted prism, and interpreting some of these kids’ responses regarding their use of social media as “addicts saying they like how their addiction makes them feel.” But when you read what these kids are saying in context, it doesn’t read like that at all. They all use the internet, phones, and social media, because that’s how kids communicate (adults too!), but they use it in perfectly expected ways, and often as a means to an end. I think many of the people freaking about what the kids are saying about their usage of social media are viewing it through a lens of “social media is not real life, and therefore, these kids are avoiding real life.” But that’s nonsense. Social media is just as “real life” as everything else. These kids are using it to learn and to communicate and to socialize. If anything, we should be annoyed that modern society has made it more and more difficult for kids to be kids. There are fewer places that kids can just go to hang out with other kids, so it’s no surprise that they gravitate to online places where they can do that. But, on the whole these anecdotes from this panel continue to support other research, like the Pew Research Center’s recent study that showed that social media is a really useful tool for teens, providing them with “a space for connection, creativity and support.” And the number who find it positive massively outweigh those who find it negative: Now, obviously, that doesn’t mean it’s great for everyone. There are real issues with cyberbullying and some people who have issues with balancing things. But the focus of interventions should be on figuring out the best ways to support that very small percentage of kids, rather than trying to destroy or ban the internet entirely for kids of this age range.

[Category: 1, communities, friends, moral panic, social media, socializing, the kids are alright]

— Daily Deal: The All-In-One Hardcore Unity Game Developer Bundle With Xbox Ultimate 1-Month Game Pass

 

at 3/29/23 11:36am

The All-In-One Hardcore Unity Game Developer Bundle has 8 courses to help you learn how to build your own games plus a 1 month pass for Xbox Game Pass Ultimate. Unity is one of the world’s most popular game engines. Used to easily create cross-platform 2D and 3D games, it comes with a powerful set of features that can also be used for a variety of non-game applications, including film, virtual reality, augmented reality, and mobile apps. In the first course, you’ll explore Unity’s core features and the basics of C#. In other courses, you’ll master skills that can be applied to creating games in some of the most popular genres, including RPGs, strategy games, and more. Get more out of your gaming experience with Xbox Game Pass Ultimate. With over 100 high quality games and new titles added all the time, you’ll always have something new to play with friends on console, PC, mobile devices or tablets. The bundle is on sale for $24.97. 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.

[Category: 1, daily deal]

— Deputies Who Raided Afroman’s House Sue Him For Daring To Turn Footage Of The Raid Into A Viral Video

 

at 3/29/23 10:27am

When the Adams County (OH) sheriffs office raided rap artist Afromans home, he didnt just sit back and assume everyone involved operated in good faith. The raid was captured on Afromans security cameras, which the artist soon converted into a viral video/rap song entitled Will You Help Me Repair My Door. The footage which the deputies tried to prevent from being recorded by cutting power to Afromans house and unplugging any cameras they could find showed the deputies doing all sorts of ridiculous drug warrior stuff. Like cautiously approaching a lemon cake in a glass container on the counter top. And rifling through CD cases looking for evidence of drug trafficking and according to the warrant kidnapping. And taking any cash they could find, of which $400 went missing when Afroman was allowed to collect this so-called evidence. What wasnt found during the raid was anything pointing to the criminal acts that supposedly justified the intrusion. All deputies found were a couple of joints and some loose cash. An investigation into the missing $400 by the Ohio Bureau of Criminal Investigations came to the conclusion this was a mistake by the deputies, who stated they had simply miscounted the take. But thats not the stupidest part of this debacle. The deputies who did all the dumb stuff caught on Afromans cameras dumb stuff authorized by a piece of paper signed by a judge are now claiming theyre the real victims here, not the person who house was raided and whose property was seized. Seven members of the Adams County Sheriff’s Office who raided Joseph Foreman’s home last year are now suing him claiming, among other things, that he invaded their privacy. Four deputies, two sergeants and a detective are claiming Foreman (a.k.a. “Afroman”) took footage of their faces obtained during the raid and used it in music videos and social media posts without their consent, a misdemeanor violation under Ohio Revised Code. They’re also suing on civil grounds, saying Foreman’s use of their faces (i.e. personas) in the videos and social media posts resulted in their “emotional distress, embarrassment, ridicule, loss of reputation and humiliation.” LOL. Fuck these guys. Theres no case here. The lawsuit [PDF] makes plenty of claims that might have sounded credible if these officers (1) were not public servants, (2) not performing their public duties, (3) not captured by someone elses recording equipment, and (4) not doing a bunch of stuff that made them look ridiculous. Fortunately, by filing this lawsuit we now have the names of some of the deputies who participated in the raid, which should only add to their emotional distress, embarrassment, ridicule, loss of reputation, and humiliation. They are Shawn Cooley, Justin Cooley, Michael Estep, Shawn Grooms, Brian Newland, and Lisa Phillips, and Randolph Walters, Jr. These idiots, who love power but hate the accountability that very occasionally comes with it, are hoping a judge will force Afroman to take down his publication of his own security camera footage, prevent him from ever doing it again, and give them some of Afromans money because he had the audacity to wrest the narrative from their control. These arent public servants. These are children playing dress up daft punks who seem to believe their actions should be eternally free of consequences. Theyre trying to bring a right of publicity claim against Afroman an oft-abused offshoot of copyright law that supposedly allows people to control how their faces, bodies, images, etc. are used to prevent commercial exploitation without their consent. Its highly unlikely public servants recorded performing their public duties can prevent use of these recordings in any way that might conceivably result in monetary gain for the person doing the recording. That much seems obvious. This also seems to foreclose this action: its unlikely these seven officers (deputies Happy, Sleepy, Dopey, Grumpy, Bashful, Sneezy, and Doc) will be able to claim that their faces/bodies as captured by Afromans security cameras have any intrinsic value capable of being exploited in violation of this law. To wit: (A) Persona means an individuals name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value. Perhaps if Afroman utilized their personas to perform a faux endorsement of his candidacy for sheriff, they might have a point. But copyright law is on Afromans side: the footage used in the viral videos was captured by his cameras. And no officer was exploited individually for commercial gain. The entire raid, which happened to include these particularly childish law enforcement officers, became the basis for a music video. Back to the lawsuit. Enjoy this paragraph, in which the seven deputies manage to misspell plaintiffs' in the opening sentence: As a result of Defendants actions, Plaintiffs have been subjected to ridicule, even in the further performance of their official duties, by members of the public who have seen some of Defendants above-described postings. In some instances, it has made it more difficult and even more dangerous for Plaintiffs to carry out their official duties because of comments made and attitudes expressed toward them by members of the public. Yeah, thats a real shame. Too bad about those official duties. And Afromans video and Instagram posts utilizing his own security camera footage are nothing more than criticism of government employees the kind of thing given the utmost in First Amendment protections. That hes making money doing it is beside the point. As the saying goes, if you cant stand the heat, get out of someone elses kitchen. And, as for the worries about further reputational damage, the best way to stop this form of bleeding would be to take your lumps on social media, rather than call attention to your own deep insecurities with a vindictive lawsuit that ensures your names will be seen by far more than Afromans social media followers. The deputies also claim theyve been subjected to death threats. While thats unfortunate, its neither here nor there. Receiving death threats is not a component of the states right of publicity law. And the deputies offer no evidence Afroman is encouraging his fans to engage in this sort of behavior. Indeed, if they had any evidence this was happening, they likely would have arrested Afroman for terroristic threats (or whatever applicable, abusable law is on hand). This is a stupid, vindictive lawsuit that has zero chance of surviving a motion to dismiss. Maybe the deputies know this. They apparently had to shop around quite a bit to find an attorney to represent them, settling for someone who doesnt seem to have much experience in IP law or personal injury litigation cases that dont involve either car accidents or elderly abuse. This case is going to get into unexplored areas of law that require expert guidance not because the law needs to be better settled, but because it will take particularly deft maneuvering to keep the judge from spending most of their time expressing their displeasure and incredulity that a member of the bar would even bring this shit into their courtroom. Hopefully the deputies attorney has advised them the humiliation and ridicule is going to get a whole lot worse before it gets any better.

[Category: 1, adams county, adams county sheriffs department, afroman, footage, ohio, publicity rights, raid, security cameras, will you help me repair my door, will you help me repair my gate]

— Biden FCC Makes Some Empty Noise About Cracking Down On Bullshit Cable & Broadband Fees

 

at 3/29/23 6:32am

The broadband and cable industry has long perfected the use of bullshit fees to jack up subscriber bills. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate — then sock you with a higher rate once your bill actually arrives. Theyll then pretend they havent actually raised rates because the advertised rate remains inaccurately low. Enter the FCC, which last week announced that it might take a closer look at the problem (at least by cable TV providers) by demanding that they provide consumers an all in price that includes fees both in advertising and on subscriber bills: “We’re working to make it so the advertised price for a service is the price you pay when your bill arrives and isn’t littered with anything that resembles junk fees. Not only will this reduce cost confusion and make it easier for consumers to compare services, but this proposal will also increase competition among cable and broadcast satellite providers through improved price transparency.” But there are a few problems. One, the FCC may lack the voting majority to actually implement this thanks to the telecom industrys successful derailment of the Gigi Sohn nomination, which, by industry design, has left the agency mired in partisan gridlock at a 2-2 commissioner split after a year-long smear campaign against Sohn. The FCCs Democratic leader, Jessica Rosenworcel, couldnt be bothered to provide meaningful messaging support for Sohn during the industry smear campaign. Now her FCC lacks the majority to do much of anything deemed controversial by industry, without the approval of the agencys two Republican commissioners, who generally, with the occasional exception, tend to side with industry. The Biden administration shares plenty of blame for Sohns scuttled nomination. It nominated Sohn 9 months late the largest appointment delay in FCC history allowing the industry ample runway to solidify its attack campaign. Bidens team also failed utterly to apply any meaningful pressure on the three key Democratic Senators (Kelly, Manchin, Masto) who ultimately doomed Sohns nomination. Even when properly staffed, the FCC generally lacks the courage to actually stop cable and broadband giants from engaging in bad behavior. Theyre terrified of being accused of dipping even a single, sad, solitary toe into the concept of rate regulation. So instead the focus is usually on mandating transparency into how exactly youre getting ripped off, without actually stopping it. You can see this over in the FCCs long-stalled efforts to require a broadband nutrition label documenting hidden service charges, which proposes mandating transparency labels for service quality and cost, but dont actually stop predatory broadband monopolies from ripping you off. You also see it more broadly with the governments Affordable Connectivity Program, which pays regional monopolies to temporarily lower prices for poor people ignoring that consumer prices are only made high by these companies monopolistic behaviors in the first place. A 2019 Consumer Reports study found that about 24% of consumer bills are comprised of bullshit fees, generating cable giants $28 billion in additional revenue annually. The problem is just as bad over in broadband (see CenturyLinks utterly nonsensical “Internet Cost Recovery” fee), where ISPs routinely rip users off (unless they live in a state with an AG interested in broadband consumer protection). While its nice to see the FCC occasionally acknowledge that the problem exists, this is an agency long-ago defanged by industry. The FCCs political animals are generally terrified of standing up to cable and broadband giants consistently. Even Democratic FCC commissioners, often slightly better on telecom policy, are generally afraid to even acknowledge broadband monopolies exist in public statements. You wouldnt want to upset campaign contributors, intelligence gathering allies, or future revolving door employers. So instead you get a sort of consumer protection theater, where the agency talks a big game about protecting consumers from harm, but isnt particularly interested in stopping the actual harm, or meaningfully penalizing companies that have spent decades ripping U.S. consumer off. The end result are transparency efforts that shift the onus of responsibility to the consumer, but dont genuinely stop the underlying behavior by industry or hold industry accountable. Thats not to say greater transparency cant help, but its still generally been a substitute in the U.S. for regulators with the backbone needed to competently police billing fraud and false advertising.

[Category: 1, broadband, false advertising, fcc, fees, monopoly power, nickel and dime, regulatory capture, regulatory recovery fee, telecom, truth in advertising]

— Microsoft Yanked Forthcoming Game’s PlayStation Port To Make It Exclusive

 

at 3/28/23 9:18pm

Timing, as they say, is everything. Weve been talking about Microsofts proposed acquisition of Activision Blizzard a lot lately and for good reason. Its a huge deal, both in terms of the size of the purchase relative to the video game industry, but also because of what it could mean for the overall competitive marketplace in the industry as well. The regulators have expressed varied levels of concern and Microsofts rebuttal to those concerns has mostly been to ink 10-year deals with other platforms to keep the key series Call of Duty non-exclusive, at least for that timeframe. All the while, throughout this and previous acquisitions taking place in a climate of market consolidation, Microsoft executives have made vague, non-committal statements about how it doesnt actually want to go the exclusivity route with its titles generally. Take Microsofts acquisition of Zenimax/Bethesda, for instance. After Microsoft acquired the game studio for a then eye-popping $7 billion, Xboxs Phil Spencer said the following. “I don’t want to be flip about that,” he added. “This deal was not done to take games away from another player base like that. Nowhere in the documentation that we put together was: ‘How do we keep other players from playing these games?’ We want more people to be able to play games, not fewer people to be able to go play games. But I’ll also say in the model—I’m just answering directly the question that you had—when I think about where people are going to be playing and the number of devices that we had, and we have xCloud and PC and Game Pass and our console base, I don’t have to go ship those games on any other platform other than the platforms that we support in order to kind of make the deal work for us. Whatever that means.” Go ahead and sit down with a pen and paper and try to map out what in the actual hell Spencer is even saying there. Youre best bet is to draw a picture of a waffle with a silly face plastered on top of it, because thats exactly what that statement is. But if you can find anything at all concrete in the statement, it certainly has to be the part in which Spencer indicates Microsoft is not interested keeping groups of people from playing games as a result of its acquisitions. This is the exact argument Microsoft is making to the regulators as it tries to push through the purchase of Activision Blizzard. After all, it cant be an antitrust or competitive market concern if Microsoft keeps these titles available on these other platforms and doesnt limit the competition. But then the next Elder Scrolls game, a beloved franchise, would be an Xbox/PC exclusive. Oops. And now, in the midst of Microsoft arguing it will act in an opposite fashion to regulators around the world, we learn that another Bethesda title was going to have a PlayStation version before Microsoft nixed it post-acquisition. Due on May 2, 2023, Redfall is an online co-op shooter that features a whole lotta blood-sucking vampires. You play as a slayer who has to use weapons, stakes, magic, and stealth to take down all the vamps and save your small town before it’s too late. The game seems cool and it’s nice to hear that developer Arkane is looking to remove the previously-announced always-online requirement. However, if you are a PlayStation owner, you won’t get to play Arkane’s next big title, even though at one point there was a PS5 port in the works. Speaking to IGN France (and translated by IGN), Redfall director Harvey Smith explained that once Bethesda was bought by Microsoft in 2020, things changed fast. “We got bought by Microsoft and that was a huge sea change. They said, ‘No PlayStation 5. Now we’re gonna do Game Pass, Xbox, and PC.’” If you were a regulator, or perhaps the lawyer for a group of gamers suing Microsoft to stop the Activision Blizzard purchase, youd have to think that the quote above should be center stage in your efforts. Im picturing this quote on big placards being held up the way that the clowns in Congress do when they want to make some infantile point to the masses. Timing is everything. At the exact moment that Microsoft is arguing it will not limit competition by taking titles exclusive, here is a concrete example, admitted to publicly by the company that Microsoft acquired, of it doing the exact opposite. The work had already begun on the PlayStation version and Microsoft killed it. All in as direct contradiction to Spencers statement could be had with his wishy-washy messaging. Canceling a PS5 port of a big game like Redfall seems to run directly in opposition to that statement. And while I understand that, duh, Microsoft wants its games to be Xbox-exclusive, that’s not the message the company has been putting out for the last year or so as it’s tried to convince courts and regulatory groups around the world that it won’t make Call of Duty an Xbox exclusive once it completes its separate, nearly $69 billion purchase of Activision Blizzard King. Yes, exactly. And now well see just how much attention those regulators are paying to doing their jobs, because if Redfall doesnt enter the conversation theyre having with Microsoft, then those regulators are merely mechanisms by which rubber stamps are wielded.

[Category: 1, activision blizzard, microsoft, sony, antitrust, competition, elder scrolls, exclusives, playstation, video games, xbox]

— US And EU Nations Request The Most User Data From Tech Companies, Obtain It More Than Two-Thirds Of The Time

 

at 3/28/23 4:15pm

Most tech companies handling data requests from governments now publish transparency reports. As everything moves towards always-online status (including, you know, your fridge), social media platforms and other online services have become the favored targets of government data requests. It just makes sense to look there first rather than out there in the real world, where people (and their communications) are that much more difficult to locate. Consequently, what started out as a cottage industry has quickly become a front-of-the-house operation for many governments. Year-after-year data request increases are the new normal. Twitter reported a record high in government requests last year, along with a doubling of the number targeting journalists. The only countries submitting fewer requests for user data were those (like Russia) which had blocked citizens access to the platform. These trends continue. A VPN provider has compiled data from multiple companies transparency reports into one handy report one that shows requests continue to skyrocket and that these requests are complied with more often than not. As detailed in SurfShark’s new report which analysed user data requests that Apple, Google, Meta, and Microsoft received from government agencies of 177 countries between 2013 and 2021, Tech giants get a lot of requests for user data, and the majority of the time, they comply.    Of the four Big Tech companies studied, Apple was the most forthcoming, complying with 82% of requests for user data, compared to Meta (72%), Google (71%), and Microsoft (68%). Interestingly, Big Tech was more compliant in the UK than when compared to global figures, disclosing user data 81.6% of the time. In the nine years since these companies began producing transparency reports (all following the 2013 Snowden leaks), government requests have more than tripled. And the spike isnt due to increased (shall we say) participation from governments with lots of human rights abuses on their permanent records. No, its the US and EU leading the way, with the United States taking the top spot, followed by Germany. The top 10 also includes the UK, France, Ireland, Portugal, and Belgium. The outliers are Singapore and Taiwan nations more often linked to pervasive surveillance and government oppression than the ones doing most of the asking. Also of note is the compliance rate. Apple may have cultivated a reputation for protecting its users privacy and security but its also the tech company with the highest compliance rate. It has a ten percentage point lead on the second place company, Meta a company rarely (if ever) associated with terms like security or privacy. The year-over-year increases are unsurprising. You go where the data is and, increasingly, its housed by these four companies. But the increase in compliance is somewhat disheartening. It could signal that government agencies are crafting better, more targeted requests. Or it may signal that the steady increase in the number of requests means requests arent necessarily receiving all the scrutiny they deserve. Whatever the case, its something that bears watching. Fortunately, this VPN provider is making it that much easier to do.

[Category: 1, government requests, law enforcement, subpoenas, surveillance, transparency, transparency reports, warrants]

— Techdirt Podcast Episode 348: Sci-Fi & Silicon Valley

 

at 3/28/23 2:30pm

Science fiction has always served as a source of inspiration for real technological progress. Sometimes thats great, but other times it enables abuse or leads people to make terrible assumptions that result in harmful decisions. This week were joined by the hosts of the podcast Our Opinions Are Correct, authors Annalee Newitz and Charlie Jane Anders, who recently began tackling this very subject, to discuss the relationship between Silicon Valley and science fiction. Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

[Category: 1, annalee newitz, charlie jane anders, podcast, science fiction, silicon valley]

— Forget Shadow Banning, Now Elon Is Shadow Boosting Accounts He Likes, While Trying To Drive Away Users Who Won’t Pay

 

at 3/28/23 1:08pm

Elon Musk says he’s against a “lords and peasants” system on Twitter. And he thinks celebrities on the platform should be treated equal: And he’s really mad about shadowbanning: Even as he uses the shadowban features all the time, mainly against accounts he dislikes. But now it turns out that, all along, he’s set up a special “shadow boosting” system, that allows him to pump his own personal favorite accounts into your algorithmically generated “for you” feed all the time. Now, we already know that Elon’s own tweets got the “max boost” treatment from engineers after Elon had a sad over a Joe Biden tweet getting more engagement. But we were told that was a special treatment just to keep the guy in charge happy. However, it probably won’t surprise most of you to know that there’s also a special list of “VIPs” whose tweets are boosted to appear in people’s feeds basically all the time. And the folks at Platformer got their hands on the list. But Twitter does have a different standard for celebrities – including Musk himself. For months, the platform has maintained a list of around 35 VIP users whose accounts it monitors and offers increased visibility alongside Elon Musk, according to documents obtained by Platformer. The list, which spans the political gamut and also includes several journalists and celebrities, includes: NBA All-Star LeBron James Daily Wire founder and conservative commentator Ben Shapiro Pseudonymous conservative commentator @catturd2 Rep. Alexandria Ocasio-Cortez, D-NY President Joe Biden YouTube star MrBeast  Venture capitalist and Twitter investor Marc Andreessen Weird Twitter pioneer @dril Comedian Jaboukie Young-White Tesla community account @teslaownerssv Journalists Matt Yglesias, Glenn Greenwald, Noah Smith, and Adrian Wojnarowski (Platformer is not publishing the full list, whose makeup has changed slightly over time, to protect our sources’ identities. All the names above are still on the list.) Menswear writer Derek Guy, aka @dieworkwear, is also on the list, which could explain why many of his posts went inexplicably viral earlier this year.  That sure seems to go against his “no lords and peasants” dual class system, or his Shatner spat about treating everyone equally, but since when has Elon ever been honest about anything? I’ve seen some people surprised at who is on this list, but it primarily seems like a list of people that Elon thinks drive engagement. In the meantime, there are some other changes happening at Twitter as well, including firing more of the remaining trust & safety team, and handing over more power to the very same AI that Musk seems to spend every day on Twitter mocking as dangerous. I’m sure that’ll work out great: In an effort to save money, Twitter is scaling back its content moderation team even further, and relying more heavily on automated systems to police content than ever before. Still, perhaps even bigger is Musk’s new plan, which is hilarious in just how much it demonstrates how little Musk understands about how Twitter works for everyone but himself. He announced that only people who pay (which he falsely calls “verified) will show in the “for you” algorithmic feed that Elon’s Twitter now forces on every user when they open up Twitter, whether they like it or not: I mean, almost all of this is hilarious. First, it makes the “for you” feed even more ridiculous and less valuable to users, meaning that it actually devalues the benefits of paying for Twitter Blue. Basically, it now means that appearing in the “for you” feed means you’re a chump. But, once again, he’s creating a “lords and peasants” scenario, where the “lords” are simply those people gullible enough to pay Elon Musk a monthly fee. Still, more importantly, the idea that he thinks this is the “only realistic way” of dealing with “AI bot swarms” really says a lot, and none of it good. First off, Elon had already claimed that he (1) took over Twitter to get rid of the bots and had such a good plan to do so that (2) he claimed the problem was already taken care of back in December, which he accomplished by… shutting off access to big telecom providers in India, Russia and Indonesia, and accidentally blocking a bunch of legit Twitter accounts. Guess not. Also, for scammers who are willing to pay $8, theyll now have a clearer field to do their scamming, which could easily be worth more than $8 to the scammers. And, yeah, the voting in polls thing: I mean, what? Most people are assuming that hes still bitter about losing the poll about whether or not he should step down as CEO, which he promised to abide by even as its unclear that hes taken any steps towards that end result. Even if it were true that AI bot swarms were polluting polls so what? These polls mostly dont matter. To be fair, he also seems to be claiming that these new bots are “AI bot swarms” that have figured out how to bypass CAPTCHAs. So, this seems to be his — I guess some might call it “strategy?” — for dealing with this. This is just one step short of saying that you can’t tweet unless you pay, which… will just drive a huge segment of the Twitter userbase away from Twitter. If there’s one consistent thing we’ve seen with Elon is that he seems simply incapable of considering literally anyone else’s experience on his site beyond himself. Every single move has been about improving his personal experience on Twitter, usually at the expense of everyone else’s. He bans accounts that make him feel uncomfortable. He tweaks the algorithm to promote his own content. He changes the rules to protect his friends and friends of friends while banning people his friends dislike. He attacks and ridicules those who challenge him. It’s just consistently about his own world. So now he’s promoting tweets of people he likes, while making sure that the “algorithm” that he sees every time he logs in is only filled with fans so obsessed with Musk they’re willing to pay him a monthly fee to tweet in his general direction. That’s… one way to run a social media network. But it doesn’t seem like a very good one.

[Category: twitter, algorithms, elon musk, for you feed, shadow banning, shadow boosting, twitter blue]

— In Internet Speech Cases, SCOTUS Should Stick Up For Reno v. ACLU

 

at 3/28/23 11:46am

It was by no means certain that the internet would enjoy full First Amendment protection. The radio is not shielded from the government in that way. Nor is broadcast television. Both Congress and the President supported placing online speech under some degree of state control. In Reno v. ACLU (1997), however, the Supreme Court could find “no basis for qualifying the level of First Amendment scrutiny that should be applied to this [new] medium.” Liberty won out. A quarter-century later, the free internet faces an array of new threats. Sometimes the danger is announced openly and without regret. Discussing his intention to sign a law restricting minors’ access to social media, the governor of Utah recently declared Reno “wrongly decided.” There are “new facts,” he tells us. He earns points for candor. Most opponents of internet freedom attempt to hide what they’re doing. Some of these aspiring regulators even try to snatch the banner of free speech for themselves. But they all want, by hook or by crook, to curtail or evade Reno. Many states chafe at the restraints Reno places on the government. A few have already arrived at the Supreme Court. These states endorse legal theories that would drastically shrink Reno’s scope. But they do not want Reno narrowed in a neutral, even-handed fashion. For the states in question stand on opposite sides of our nation’s culture war. Each side’s message is this: Limit Reno for thee, but not for me. Each side wants the Justices to revoke Reno’s protection for the other side. Yet both sides appeal to the same legal principles. Each side makes arguments in its own litigation that, if accepted in the other side’s litigation, would blow up in its face. Each side makes arguments that, if given full play, could lead to Reno’s being destroyed for everyone. The two sides risk pulling the temple down on our heads. The cases in question are 303 Creative v. Elenis, Moody v. NetChoice, and NetChoice v. Paxton. In 303 Creative, Colorado seeks to compel a Christian website designer to express a message, in the form of a website for a gay wedding, to which she objects. The U.S. Court of Appeals for the Tenth Circuit ruled for the state. The Supreme Court granted review and heard oral argument last December. In Moody and Paxton, states seek to force large social media platforms to spread messages that those platforms believe are dangerous, harmful, or abhorrent. In Moody, the Eleventh Circuit ruled for the platforms, blocking a Florida law called SB7072. In Paxton, the Fifth Circuit ruled against them, upholding a Texas law, HB20, that requires “viewpoint neutral” content moderation (i.e., if you carry Holocaust documentaries, you must carry Holocaust deniers). Petitions for certiorari have been filed in both cases, and the Court is almost certain to grant at least one of them. The driving forces here are Colorado (supported by other blue states and the federal government) and Florida and Texas (supported by other red states). Still, each side has found able champions on the bench. Judges figure prominently in these legal debates, as we will see. Yet the Supreme Court now has the full picture. With both 303 Creative and Moody/Paxton before them, a majority of the Justices might take a different view. They might see that the best course is to defend the rule and spirit of Reno against all comers. How is Reno being challenged? How do the attacks on it match up in 303 Creative, Moody, and Paxton? Let’s dig in. Common Carrier / Place of Public Accommodation Two years back, Justice Thomas, writing for himself, suggested that “some digital platforms” are “akin to common carriers or places of public accommodation.” If that’s right, he surmised, then “laws that restrict” those platforms’ “right to exclude” might satisfy the First Amendment. The state might lawfully force such entities to disseminate speech against their will.  Upholding HB20 in Paxton, Judge Oldham took the next step. Texas claimed that large social media platforms can be treated like common carriers. Oldham agreed. He concluded—in dicta; no other judge joined this part of his opinion—that HB20’s viewpoint neutrality rule “falls comfortably within the historical ambit of permissible common carrier regulation.” The idea of common carriage has, Oldham wrote, “been part of Anglo-American law for more than half a millennium.” He explored the concept’s history at length, following it on a “long technological march” from “ferries and bakeries,” to “steamboats and stagecoaches,” to “telegraph and telephone lines,” and finally—in his mind—to “social media platforms.” He argued “the centrality of the Platforms to public discourse.” He grappled with “modern precedents.” He engaged with the “counterarguments” of “the Platforms and their amici.” No one can dispute his rigor. The Eleventh Circuit, speaking through Judge Newsom, ruled in Moody that the platforms are not like common carriers. Newsom, too, was careful and thorough. But in any event, how much of this debate is genuinely relevant? Judge Southwick’s answer, in his dissent in Paxton, was short and to the point. “Few of the cases cited” by Judge Oldham, Southwick wrote, “concern the intersection of common carrier obligations and First Amendment rights,” and the ones that do “reinforce the idea [that] common carriers retain their First Amendment protections of their own speech.” To show that a legal principle can trump a constitutional right, in other words, it does not suffice to show that the principle has an impressive pedigree. One must establish that the principle has in fact been used to trump the constitutional right. Here is where things get interesting. This is precisely the approach that Lorie Smith, the Christian website designer, urges the Supreme Court to deploy in 303 Creative. Colorado says that Smith must make websites for gay weddings because her business is a place of public accommodation. What must Colorado do to connect its premise and its conclusion? It must prove, Smith contends, that “public-accommodation laws historically compelled speech, not that they merely existed.” At oral argument, Justice Thomas picked up this line of thought. Is there a “long tradition,” he asked (appearing to depart from the stance he teased with two years ago), “of public accommodations laws applying to speech . . . or expressive conduct?” Where are the cases showing that, by declaring an entity a common carrier, the state can strip that entity of its right to decide what speech it will (or will not) disseminate to the public at large? Judge Oldham cited none. Where are the cases showing that, by declaring an entity a place of public accommodation, the state can force that entity to create expressive products against its will? In response to Justice Thomas’s question, Colorado’s counsel conceded that “the historical record is sparse.” Would conservatives be glad to see Smith forced to design websites that go against her religious convictions? Would liberals rejoice at seeing social media platforms forced to host and amplify hate speech? If the answer to these questions is no, perhaps neither side should start down this path. Perhaps neither should be trying to use common carrier or public accommodation rules to evade Reno and control the internet. Market Power As support for the common carrier argument, Judge Oldham asserted the major social media platforms’ market power. “Each Platform has an effective monopoly,” he insisted, “over its particular niche of online discourse.” In his view, “sports ‘influencers’ need access to Instagram,” “political pundits need access to Twitter,” and so on. There are a number of problems with this claim. To begin with, an entity that wins itself market power does not lose its right to free speech. In Miami Herald v. Tornillo (1973), it was argued that “debate on public issues” was at that time “open only to a monopoly in control of the press.” The Court did not disagree. Nonetheless, it unanimously struck down a state law requiring newspapers to let political candidates reply to negative coverage. “Press responsibility is not mandated by the Constitution,” the Justices explained, “and like many other virtues it cannot be legislated.” Even if market power mattered, it is far from obvious that platforms have “effective monopolies,” whether over “niches” or otherwise. A month after the Fifth Circuit issued Paxton, Elon Musk purchased Twitter, causing more than a few commentators to ditch the service for Mastodon. Influencers—and, for that matter, political pundits—can gain a large following on Snapchat, TikTok (for now), YouTube, or Rumble. More broadly, the overlap among social media products is greater than might appear at first blush. Suing to break up Facebook and Instagram, for instance, the Federal Trade Commission has asserted that the products’ common parent, Meta, dominates a market for “personal social networking services.” The only large competitor in this market, the agency alleges, is Snapchat. Yet the agency has struggled to explain what makes this market distinct. These days, in fact, Meta is scrambling to make its products more like TikTok. So the worst thing about the “effective monopol[ies]” claim is that it bounces off the surface. The typical antitrust case is a complex dispute about costs and outputs, profit margins and elasticities, and much else besides. Judge Oldham offered a bare assertion. A just-so story. A useful belief, if one’s goal is to let states commandeer the biggest social media platforms. No one would cry for those platforms if the judiciary were to overestimate the size and stability of their market “niches.” Indeed, many will smile at the prospect. But be careful what you wish for. Recall that the Tenth Circuit ruled against Lorie Smith in 303 Creative. Smith’s “custom and unique services,” the court wrote, “are inherently not fungible.” They are, “by definition, unavailable elsewhere.” Smith is therefore a market of one, the court thought, and that is grounds for forcing her to speak. Outlandish? Probably so. Then again, Colorado warns that if Smith wins, belief-based restrictions on service might proliferate, leading to market foreclosure in the aggregate. And that argument is not ridiculous; it is merely speculative and weak—not unlike the “effective monopol[ies]” argument in Paxton. Anyone tempted to use loose pronouncements of market power as a weapon of (culture) war should first picture how the tactic might be misused in a variety of other cases. One careless claim of market power begets another. Speech vs. Conduct On the way to upholding HB20, the Fifth Circuit relied heavily on Rumsfeld v. FAIR (2006). A federal statute required law schools to host military recruiters on pain of losing government funding. FAIR upheld this mandate. “A law school’s decision to allow recruiters on campus,” the Court reasoned, “is not inherently expressive.” The statute regulated “conduct, not speech.” It affected “what law schools must do—afford equal access to military recruiters—not what they may or may not say.” The Fifth Circuit used FAIR as a guide. The “targeted denial of access to only military recruiters,” the court said, could not be distinguished from the “viewpoint-based” content moderation “regulated by HB 20.” In both cases, the court concluded, the regulated activity is “conduct” that lacks “inherent expressiveness.” Therefore social media platforms have no First Amendment right to control what speech they host. This, it turns out, is a popular way to justify letting the state regulate speech. In 303 Creative, the Biden administration filed a brief in support of Colorado. Colorado’s public accommodations law “target[s] conduct,” the brief says, invoking FAIR, and it “impose[s]” only “‘incidental’ burdens on expression.” The brief cites FAIR more than two dozen times.  FAIR was authored by Chief Justice Roberts. At the oral argument in 303 Creative, he did not seem thrilled about how the decision was thrown back at him. That case involved “providing rooms,” he protested, and the Court held merely that “empty rooms don’t speak.” The Chief Justice is on to something. Here again, the best move is not to play. Conservatives and liberals can come up with creative ways selectively to apply FAIR to this or that (but no other!) form of online speech. They can try to exploit the decision with callous craft, expecting, for some reason, that the gambit will work always in favor of their interests, and never against them. Or they can put FAIR down and affirm Reno for all. Editorial Discretion Which brings us to the most aggressive, and the most dangerous, of the attacks on Reno. Included within the First Amendment is a right to editorial discretion. This is why the government generally cannot tell a newspaper which articles or letters to publish, or a parade which marchers to allow, or a television channel which movies to carry. As the Eleventh Circuit said in Moody, it is why social media services are “constitutionally protected” when “they moderate and curate the content that they disseminate on their platforms.” In Paxton, the Fifth Circuit swept this right aside. “Editorial discretion,” the court proclaimed, is not “a freestanding category of constitutionally protected speech.” In their petition for certiorari, the platforms’ representatives cast serious doubt on this claim. They quote the Supreme Court’s discussion, across various decisions, of the “exercise [of] editorial discretion over . . . speech and speakers,” of the “editorial function” as being “itself” an “aspect of ‘speech,’” and of the right of “editorial discretion in the selection and presentation” of content. As they observe, the Fifth Circuit “essentially limited th[e] Court’s editorial discretion cases to their facts.” That’s true—but hold on. Let us return, one last time, to 303 Creative. At argument, Justice Sotomayor sounded remarkably like Judge Oldham. “Show me where,” on the website, “it’s your message,” she asked Smith’s counsel. “How is this your story? It’s [the couple’s] story.” Counsel responded with—the right to editorial discretion. “Every page” on the website is Smith’s “message,” counsel said, “just as in a newspaper that posts an op-ed written by someone else.” Sotomayor did not seem impressed. We must again ask whether the states would welcome consistent application of their legal principles. If Colorado successfully compels Smith to speak in 303 Creative, will it accept that it has strengthened Florida’s and Texas’s hand in Moody and Paxton? Would Florida and Texas be willing to remove the platforms’ right to editorial discretion at the price of nixing many Christian artists’ right to such discretion as well? A state could duck the question by dreaming up new and clever ways to distinguish the cases. Yes, of course. Other, very different states could do the same. That is the problem. The Court has called for the views of the Solicitor General in Moody and Paxton. The Biden administration will be tempted to try to thread the needle. To get cute. To argue that the red-state social media laws before the Court are toxic and scary and unconstitutional, but that the blue-state social media laws in the works are beneficial and enlightened and in perfect harmony with the First Amendment.  The Solicitor General should resist the urge to make everything come out right (from a liberal perspective). Here is what she should do instead. Agree that review is warranted. Denounce SB7072 and HB20. Celebrate the right to editorial discretion. Heap praise on Reno v. ACLU. Stop.

[Category: 1, 1st amendment, 303 creative v. elenis, colorado, common carrier, compelled speech, florida, free speech, internet, moody v. netchoice, netchoice v. paxton, public accommodation, reno v. aclu, supreme court, texas]

— Daily Deal: StackSkills Unlimited

 

at 3/28/23 11:43am

StackSkills is the premier online learning platform for mastering todays most in-demand skills. Now, with this exclusive limited-time offer, youll gain access to 1000+ StackSkills courses for life. Whether youre looking to earn a promotion, make a career change, or pick up a side hustle to make some extra cash, StackSkills delivers engaging online courses featuring the skills that matter most today, both personally and professionally. From blockchain to growth hacking, to iOS development, StackSkills stays ahead of the hottest trends to offer the most relevant courses and up-to-date information. Its on sale for $49.97. 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.

[Category: 1, daily deal]

— The Soft Corruption Of Link Tax Bills: Enriching The News Orgs Politicians Want To Endorse Them

 

at 3/28/23 10:31am

Okay, this is just getting silly. We just explained why the various attempts to tax Google and Meta to fund the owners of news organizations (often hedge funds who have a long history of pocketing any cash and cutting jobs) is a clear attack on the open web. And yet, many people keep pushing these laws. Whats not often mentioned in these debates is the soft corruption going on. As weve described, soft corruption is not the blatant bribery/corruption that people normally think about, but its when anyone looking at a politicians actions sees the obvious transactional nature of the process. With the link tax proposals, its in the fact that politicians really need local news media to endorse their campaigns to get re-elected. Put that together with the fact that the entire purpose of these laws is to take cash from one industry and forcibly hand it over to media orgs, and you can see why some politicians are so attracted to proposing them. The latest one to try may be the silliest, and most nakedly corrupt. Rep. Buffy Wicks has spent the last few sessions in the California legislature dreaming up any kind of bills she can think of that will punish big tech because she likes to blame them for everything. You may recall last year she introduced a bill that would allow parents to sue social media if their kids were sad. I only wish I were kidding. Now shes back, excitedly pushing her version of an anti-open web link tax: The California State Assembly will consider a bill this session that requires digital advertising monopolies like Google and Facebook to pay for content they siphon from local news outlets. The California Journalism Preservation Act (CJPA), AB 886, directs big tech companies to pay publishers a “journalism usage fee” each time they use local news content and sell advertising alongside it. In turn, the bill requires news publishers to invest 70% of the profits from the usage fee in journalism jobs. The bill is authored by State Assemblymember Buffy Wicks (D-Oakland) and has garnered the support of the 800-member California News Publishers Association (CNPA) and the News/Media Alliance (NMA). Both organizations are advocates for quality journalism, free press and fair compensation for locally produced news. So, to her credit, this one is at least a lot more straightforward and open about what a total scam it is. Rather than taking the path of recent laws in Australia, Canada, and even the US Congress, which all pretend that theyre just setting up a process for bargaining or negotiation, this one just comes right out and says it: were taking money from one industry we hate, and giving it to another industry we like. I appreciate the honesty in blatant cronyism. The bill text, which was only released three days after the press release (and most of the press coverage, so no one had to actually analyze how ridiculous the actual bill is). The whole thing is pretty straightforward: if youre an eligible digital journalism provider you can invoice covered platforms for a journalism usage fee. Is it any wonder that a few organizations made up of news publishers happily endorsed this bill? Its a bill that literally gives them free money for doing nothing. Actually, its worse. Its a bill that says the platforms that have been giving them free advertising and free traffic for decades now have to pay them for continuing to give them free advertising and free traffic. What a deal! This is, of course, incredibly, ridiculously, hilariously unconstitutional. Again, the First Amendment means something, Rep. Wicks. Didnt they teach you that in elected official school somewhere? We have copyright law. We have a First Amendment. Linking to a news story is not using their journalism. Its linking. You can link to whatever you want and you dont have to pay a fee. And you cant just magically create a government mandated fee to post links. Because thats the government suppressing speech by making you have to pay to speak. Youre allowed to quote headlines. Youre allowed to summarize the news. Thats speech. Thats protected by the First Amendment. You know, part of the Constitution you swore to uphold and protect? I mean, its not like this hasnt been tried before. Realistically, this is an attempt to bring back the hot news doctrine, trying to force some publishers to have to pay to republish a story someone else broke. And its been rejected by multiple courts, most recently in the 2nd Circuit, which notes that you dont just get to force a company to pay because some new technology harms an old industrys business model: The adoption of new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort. Indeed, because the Copyright Act itself provides a remedy for wrongful copying, such unfairness may be seen as supporting a finding that the Act preempts the tort. Now, some might argue that Wicks bill is not a misappropriation tort, but it is by a different name. And the reference to copyright law here is key, because this is also an end run around copyright law — which has fair use which allows sites to repost links, headlines, and snippets. And federal copyright law also preempts any attempt by state laws to do an end-run around federal copyright law. Which is exactly what this bill attempts to do. And, really, the similarities to the fight over hot news are striking. In that one, also, the claim by news publishers was that those copying stories were engaged in free riding on the hard work of journalists — the same thing you hear now about Google and Meta posting links to news. And, therefore, either the more aggressive aggregators had to be stopped, or they had to pay. And while there were some courts that allowed this, more recently courts have regularly frowned upon it as a fairly obvious attempt at restricting speech to favor one speaker over another. When I call out the soft corruption here, Im not saying that Wicks is doing this because helping news orgs will help her get endorsements. Im sure she honestly believes this is a good idea. But what Im noting is that the very fact that this is a blatantly unconstitutional bill, whose entire purpose is to funnel lots of money from one industry she dislikes, to another that happens to have a huge role in helping her get re-elected, sure looks to the public as corruption. And that makes the public trust the system less. Even if done for good intentions, the public perception of such bills as a blatant hand out to an industry important to her campaign just feeds into the publics distrust of politicians today. I mean, given this setup, whats to stop any politician from declaring some other industry critical to democracy and forcing any disfavored (but more innovative, and successful) industry from randomly having to wire money to the struggling industry that failed to innovate? Its the worst kind of government grift.

[Category: 1, ab 886, buffy wicks, california, cronyism, journalism, link tax, soft corruption]

— Consumers Aren’t Buying Automaker Plans To Make Everything A Subscription

 

at 3/28/23 6:32am

For numerous years, automakers have been keen to boost consistent monthly income by pushing users subscription services. The problem: whether its a specific in-car 5G wireless broadband connection (made kind of irrelevant by the fact everyone has a tetherable smartphone), or subscriptions for app-based services like remote starting: consumers arent really interested. A new survey from AutoPacific (via Ars Technica) found that consumers generally couldnt be any less interested in such offerings. For example just 30 percent of those eager to buy a new car said they were interested in paying for their cars Internet access. And 23 percent said theyd be interested in being able to remotely control some vehicle functions via an app for $10 per month. The results arent too surprising. A lot of these features involve automakers trying to pretend that smartphones dont exist (forcing users to pay extra for services already available via the supercomputer in their pocket). Infotainment GUIs have also never been automakers strong suit, and often the quality of such features leaves a lot to be desired. Its interesting that theres a slight bump in interest by owners of EVs, but primarily because theyre often bored while waiting for the car to charge. But even then, 63 percent of EV owners still didnt want to pay their carmaker a subscription for an additional, car-specific 5G connection. Its worth noting that the study doesnt even focus on some of the auto industrys new, even more controversial efforts to boost revenues via subscription services, such as BMWs unyielding quest to make things like heated seats a subscription service. Here too, these efforts involve taking technology already in vehicles youve paid for and forcing you to pay extra just to enable them.

[Category: 1, automakers, buying a new car, in car 5G, nickel and diming, vehicle subsciption services]

— Gamers Celebrate Their ‘Loss’ In Court Over Blocking Microsoft’s Activision/Blizzard Acquisition

 

at 3/27/23 8:57pm

Weve spilled a great deal of ink thus far on the subject of Microsofts proposed purchase of Activision Blizzard. The discussion around this whole thing began with the acquisition itself, before quickly moving into the topic of how Microsoft was going to get past the narrow glares of several regulatory bodies that all made noises about antitrust concerns and hand-wringing over competition within the video game market itself. In the intervening weeks, the placation of the EU regulators by Microsofts 10-year deals to keep Call of Duty specifically on multiple platforms seems to have worked, whereas the outcome of the UKs CMA body and the United States FTC are less clear. But the regulators arent the only folks getting in on the action. At the end of last year, a handful of gamers filed a lawsuit against Microsoft seeking to the block the acquisition on antitrust grounds as well. Recently, we saw the initial outcome of that lawsuit: a California judge granted Microsofts motion to dismiss the suit on grounds that the plaintiffs did not bring enough specific evidence to the court detailing how they and the market would be harmed by the purchase. And, yet, the lawyer for the plaintiffs is pleased with the outcome. The gamers lawyer, Joseph Alioto, told Ars that he believes they have ample evidence to satisfy the judge in this case. He confirmed that gamers intend to file their amended complaint as soon as possible. Rather than being discouraged by the judge’s dismissal, Alioto told Ars that the gamers were pleased by Corley’s order. “We think that the order is terrific, because it actually states exactly what the judge wants,” Alioto told Ars. “We have more than sufficient evidence to respond to her directly and intend to file the amended complaint as soon as possible. Certainly, we believe within the next 10 days or earlier.” In other words, the judges order, which you can read embedded below, sets out for the plaintiffs exactly what the court would be looking for to allow this case to move forward if re-filed. Alioto claims to have the evidence the court wants, which makes me somewhat curious why it wasnt presented to the court initially, but if he has it, he has it. Now, the order also did not mince any words when it came to the brevity of evidence of harm and standing presented by the plaintiffs. In her order, Corley asked gamers for additional evidence to support claims that the merger would potentially foreclose access to games, harm specific gaming industry markets, and perhaps most importantly, harm gamers like them. Her order is peppered with specific questions that gamers now have a chance to answer like, “Why would Microsoft make Call of Duty exclusive to its platforms thus resulting in fewer games sold?” and “What is it about the console market or PC games market and Microsoft’s position in those markets that makes it plausible there is a reasonable probability Microsoft would take such steps?” In another example, Corley’s order told gamers that “what are missing are allegations that plausibly suggest it is reasonably probable to make economic sense for Microsoft to make the successful Activision gaming franchises exclusive.” So, heres the thing: we have asked the exact same questions as the judge. I, too, dont understand why Microsoft sees it as economically advantageous to limit the platforms on which the titles produced by a studio it now owns can be sold. I think its a terrible business decision if Microsoft goes that route. I also anticipate that Microsoft will present the same signed and proposed 10-year deals to keep CoD multi-platform as it has presented to regulators should this case be brought once more. But if its evidence that Microsoft is interested in taking titles exclusive that the court wants, Alioto can certainly find it. Hell, he can find it within Techdirts own pages, should he take a look. And there will be more posts he can draw on in the near future. Whether that will make these gamers lawsuit any more successful the next time around remains to be seen. These sorts of citizen-led attempts to block major business acquisitions that also have the attention of regulators rarely work, after all.

[Category: 1, activision blizzard, microsoft, acquisitions, antitrust, call of duty, mergers]

— Elon Musk Effectively Admits That He Set Fire To More Than Half Of Twitter’s Value

 

at 3/27/23 4:37pm

For months, Elon Musk has been promising the rapidly dwindling workforce at Twitter that he’d give them stock grants. He’d promised that those grants would come on March 24th, and I can tell you that when normal business hours ended on the 24th with no details, some of those remaining employees were pissed off. However, it was just Musk in typical fashion, being late. Late at night an email was sent to employees on “the state of Twitter 20” which also included the details of the grants. The details, as laid out in the Wall St. Journal, are that employees will get grants that vest over a period of four years, with a 6 month cliff (i.e., nothing vests for the first six months, so try not to anger him or he’ll fire you and you’ll get nothing) and there will be regular opportunities to cash out. But the key part is that Musk says the equity grants will be doled out with a company valuation of $20 billion. Remember, just five months ago he paid $44 billion for it, meaning he’s admitting that he more or less set $24 billion on fire in five months. That’s impressive. Elon Musk said Twitter Inc. employees will receive stock awards based on a roughly $20 billion valuation, less than half of the $44 billion price he acquired the company for last year, according to an email reviewed by The Wall Street Journal. Being the master of spin, hype, and marketing that he is, Musk concocted a story about how the valuation of Twitter may go up to $250 billion in a few years: Mr. Musk in the note to staff said he was optimistic about the social-media company’s future. “I see a clear, but difficult, path to a >$250B valuation,” meaning stock granted now would be worth 10 times more, he said. I mean, at this point, all of these valuations are just in Musk’s head. The only way you know for sure is when the shares are either available on the public market, or there’s some sort of outside investment that values the company. So, these numbers are somewhat meaningless. The company could be worth $10 billion or $1 billion or $50 billion. But the fact that Musk is effectively admitting that he thinks the valuation is around $20 billion is a pretty huge admission of failure. He took an asset that he (perhaps stupidly) valued at $44 billion and knocked off more than half the value. And given that hes prone to overhyping his own works, hes almost certainly over-estimating the value. Great job. Also, Im curious how the other equity holders feel about all of this. Now, all of them have more money than they could ever use, so maybe they dont care one bit about this, but I remember hearing from some people how Musk had the Midas touch and they seemed confident that hed take their $500 million to $2 billion contributions and turn it into much more. And here he is, just five months later, admitting hes basically set fire to that money. As for the claim that he’ll get it up to a $250 billion valuation, well, anything is possible. But to date, given that he’s driven away many advertisers, made the site much more fragile, made it significantly less welcoming in terms of inviting back the most abusive users and filling everyone’s feed with about 5 times more ads than before, bet big on the Twitter Blue program that very few people seem interested in… it’s reasonable to wonder just how he thinks the site will be valued at $250 billion outside of his head.

[Category: twitter, elon musk, stock grants, valuation]

— Indian Government Cuts Off Internet Access To 27 Million Punjab Residents As It Continues Its Targeting Of Sikhs

 

at 3/27/23 2:35pm

The Indian government under Narendra Modi has become an even worse version of itself. It has expanded its power unilaterally to silence critics and oppress citizens Modi doesnt care for. It has continued to do this despite courts finding these actions illegal. The government has, on more than one occasion, cut millions of peoples access to the internet. It claims these extreme measures are justified to ensure the safety of residents during periods of upheaval, but its clear these blackouts are being used to help the government control the narrative when faced with mass criticism. More of the same is on tap as the Modi government continues its oppression of Sikh residents in the Punjab region the only region in the country where Sikhs are not a minority. Following a violent protest earlier this year, the government clamped down on the regions 27 million residents while searching for a single person: Sikh political activist Amritpal Singh, who the government claimed had instigated the violence against Punjab police officers. Pallavi Pundir, reporting for Vice, details the internet clampdown the government deployed during its search for Singh. This week, state police and paramilitary forces put Punjab on edge as they swept through the whole state searching for Singh to arrest him. They said Singh is a “national security threat” and named the February incident as the reason for the crackdown.   Authorities blocked internet access, placed restrictions on movement, stopped protests, suspended Twitter accounts and arrested over a hundred people, all in the span of four days.  Up to 27 million people deprived of internet access just so the government could try (and fail) to track down someone whod make them look cruel and inept. Singh became one of several public enemies number one following the protest against the (apparently wrongful) arrest of a Sikh man for kidnapping. Those charges were dropped and the man was released, prompting yet another protest against police abuse in Punjab. Having embarrassed itself, the government decided to punish an entire reason for its own inability to prevent itself from engaging in oppressive tactics targeting the Sikh population. But this extreme form of damage control isnt working. This persecution and its accompanying internet blackout has attracted attention elsewhere in the world. In Canada, which has the world’s largest Sikh population after India, Member of Parliament Jagmeet Singh called the ongoing measures “draconian.”  “These measures are unsettling for many [Sikhs] given [the state’s] historical use to execute extrajudicial killings and enforced disappearances,” he tweeted. And the oppression continues, enabled by an oft-abused law that (no surprise) declares national security concerns justify massive government overreach. This week, the Punjab police released dramatic details of Singh’s alleged escape: from a high-speed car chase, to claiming that Singh is hiding in disguise. So far, the Punjab police have arrested 154 of his associates. Singh and four others are charged under the draconian National Security Act (NSA), which gives overarching powers to the state to detain anyone.  Just like every other country in the world (including ours!), saying the words national security tilts all the power towards the executive branch, allowing the Indian government to do what it wants, when it wants, all without having to seek approval from courts or legislators. And it can continue to do these things without ever having to offer explicit justifications or explanations because any discussion would supposedly threaten the security of the nation. So, the oppression continues with no end in sight. And it has been extended to those who merely observe and report of the governments actions. As of this week, Punjab police continue to crack down on protesters. Amandeep, an independent journalist from the state, whose Twitter account is also suspended, told VICE World News that the phones of some journalists have been seized. He requested anonymity due to fears for his security. Despite all of this, the government has still failed to control the narrative, at least not abroad. With intermittent internet access, residents are limited to seeing what the government wants it to see. But theyre not stupid. They know whats happening isnt whats being portrayed by the outlets the government controls. Unfortunately, knowing youre being lied to isnt the same thing as being able to do anything about it. And without stable access to the internet, its extremely difficult to counter the governments narrative, which is exactly why these extreme measures are being deployed. The government doesnt need to cut off internet access to track down alleged criminals. But it does need to do that if its efforts are motivated almost solely by the ruling partys animus towards certain residents of the country.

[Category: 1, amritpal singh, india, internet, narendra modi, punjab, sikhs]

— As Free Speech Enthusiast Elon Plans To Release Twitter’s Source Code, Twitter Desperately Seeking Identity Of FreeSpeechEnthusiast Who Leaked Twitter Source Code

 

at 3/27/23 12:58pm

Ever since Elon Musk made his initial bid to buy Twitter, he’s talked about “open sourcing” the algorithm. He mentioned it last April in the first interview he gave, on the TED stage, to talk about his plans with Twitter. And since taking over the company at the end of October, he’s mentioned it over and over again. Indeed, on February 21st, he promised that Twitter would release its “algorithm” as open source code “next week.” And then, two weeks ago, he announced that “all code used to recommend tweets” will be released as open source on March 31st (i.e., this Friday). Who knows if he’ll meet his deadline this time (he has a habit of missing deadlines pretty regularly). However, over the weekend something vaguely interesting happened, in that it was revealed that someone had already, um, “open sourced” Twitter’s source code for it, by posting a repository of at least some of the code to Github. This was revealed in a DMCA notice that Twitter sent to Github, followed by a DMCA subpoena demanding the identity of the person who posted it along with any one who downloaded it. Now, I initially wasn’t going to write about this. Leaks happen, and I think it’s perfectly fine for Twitter to issue the DMCA takedown for such a leak. But what caught my attention was the username of the leaker. According to the DMCA notice, the leaker went by “FreeSpeechEnthusiast,” and their account is (at the moment) still up on GitHub showing a single contribution on January 3rd (which makes me wonder if the code was sitting there for anyone to find for a whole month and a half): That name choice takes this from a garden variety leak operation to an ultimate troll attempt against admitted troll Elon Musk. After all, Musk himself continually (if ridiculously) refers to himself as a “free speech absolutist.” So, given both Elon’s repeated promises to reveal the source code and his publicly stated (if often violated) commitment to “free speech,” the leak of the source code by someone using the name FreeSpeechEnthusiast seems like it was designed directly as a troll move to Musk, goading him into exposing his own hypocrisy (which is way easier than many people may have thought). Well played, FreeSpeechEnthusiast, well played. As for the actual leak, again, it’s not clear how much source code was actually leaked or how problematic it is. As I understand it (and would expect) the full source code for Twitter is cumbersome and complex. Releasing a full dump of it would be difficult even if authorized, so I’m guessing it’s not everything. And while you can find lots of quotes from “cybersecurity experts” about how this may expose vulnerabilities, my guess is that the risk of that is actually fairly low at first? Given enough time, yes, someone can probably find some messy code and some vulnerabilities, but Twitter had (at one time) lots of engineers who were focused on finding and patching those vulnerabilities themselves, and so whatever remains is likely nothing obvious, and anyone going through the code now would first have to figure out how it all worked, which may be no easy task in the first place. Indeed, this is why, from the beginning, I’ve said that Elon’s promises to open source the code was mostly meaningless, because there are almost no examples of companies taking large, complex systems in proprietary code, and open sourcing them and finding anything valuable come out of it, because there’s so much baggage and complexity for people to even figuring out what the hell anything really does. This is also why Musk’s announced plans to fix things that people find in the code he still promises to release this week also seems a bit silly, as there’s a reasonable interpretation of this as: “we fired everyone who understands our code, so we’re going to open it up to get engineers to clean up our code for free for the world’s richest man.” It’s also why the better approach would have just been to improve the API and to allow more developers to build more tools, services, and features on top of Twitter code, but Elon’s already killed off that whole idea. In the end, this particular story isn’t likely to be that big a deal, but it seemed worth commenting on solely for the lulz of the epic trolling job whoever leaked the code did in highlighting Musk’s hypocrisy. Again.

[Category: github, twitter, copyright, dmca, elon musk, free speech, freespeechenthusiast, leak, open source, release, source code, subpoena, troll]

— Greek Government Used Predator Spyware To Spend A Year Surveilling A US Citizen

 

at 3/27/23 11:48am

While NSO Group made most of the headlines in the cell phone malware market, it had plenty of competition back at home. Israel is also home to its competitors. Candiru another malware company with more talent than ethics managed to make headlines of its own while being blacklisted by the US Commerce Department following weeks of negative press involving Israeli spyware companies. A company that managed to escape blacklisting one with Israeli intelligence service ties of its own is now taking some of the heat off NSO Group and Candiru. Cytrox, which manufactures a phone malware strain of its own Predator is at the center of a massive scandal in Greece, following revelations of its abuse by the Greek government. Last August, the head of Greeces intelligence agency resigned after it was discovered that a journalist and an opposition party member apparently had their phones compromised by Predator malware purchased by the Greek government. Shortly thereafter, the companys office in Greece was raided by Greek law enforcement. Now, theres even more to add to that scandal, coming to us courtesy of Gizmodos Lucas Ropek. A former executive on Meta’s security policy team was hacked by the Greek government using sophisticated spyware known as “Predator,” which tracked her for a whole year. Artemis Seaford, who formerly worked as a trust and safety manager on Meta’s security policy team, had her phone digitally infected by malware in September of 2021, the New York Times reported Monday. Seaford was secretly under surveillance at the behest of the Greek national intelligence service, which deployed tracking software widely. “Predator” was developed by a secretive cyber company known as “Cytrox,” which is said to be based in North Macedonia and sells commercial spyware and other surveillance tools. The former Meta safety manager has dual citizenship: Greek and US. So, not only does this involve a foreign company spying on a US citizen, it also involves a form of domestic spying, as the Greek government apparently targeted one of its own. The documents obtained by the New York Times show Seaford was hacked and tracked for a year by the Greek government while she worked at Metas Greek office. According to the Times, this appears to be the first time someone has been targeted by a EU nation while residing in a EU nation. This is the upshot, according to the Times: The simultaneous tapping of the target’s phone by the national intelligence service and the way she was hacked indicate that the spy service and whoever implanted the spyware, known as Predator, were working hand in hand. The Greek government, however, claims it was not behind this hacking and tracking. “The Greek authorities and security services have at no time acquired or used the Predator surveillance software. To suggest otherwise is wrong,” Giannis Oikonomou, the government spokesman, said in an email. “The alleged use of this software by nongovernmental parties is under ongoing judicial investigation.” Well, great, except that this denial is hardly plausible. The government has yet to publicly admit purchasing the spyware, but theres a growing amount of evidence pointing towards the Greek governments involvement in the deployment of Cytroxs Predator malware. Theres more circumstantial evidence in this latest report. Two people with direct knowledge of the case said that Ms. Seaford had in fact been wiretapped by the Greek spy service from August 2021, the month before the spyware hack, and for several months into 2022. I guess it all depends on whos lying or what definition of acquired or used the Greek government is using. It may be that Seaford was targeted by another government, but it seems like an insanely huge coincidence that another government compromised the Meta execs phone while she happened to be under direct surveillance by the Greek government itself. With competing narratives, it all comes down to time. Researchers may be able to find other evidence linking the phone infection with its source. And, thanks to a change in Greek law following the spying scandal, spy agencies must provide information to citizens targeted by their surveillance programs. But this disclosure isnt required until three years after the expiration of a wiretap, which means the best way to avoid disclosure is to keep renewing wiretap orders indefinitely. Also, theres no reason to believe this disclosure wont be heavily redacted, which may make official confirmation impossible. But whatever happened here is the direct result of malware makers not caring who they sell to or what their customers do with the products they make. Every government abuses the powers it has. Add-ons like Predator just make the inevitable easier.

[Category: 1, cytox, meta, artemis seaford, greece, predator, spyware, surveillance]

— Daily Deal: Microsoft Office Pro 2021

 

at 3/27/23 11:43am

Microsoft Office 2021 Professional is the perfect choice for any professional who needs to handle data and documents. It comes with many new features that will make you more productive in every stage of development, whether it’s processing paperwork or creating presentations from scratch – whatever your needs are. Youll get Word, Excel, PowerPoint, Outlook, Teams, OneNote, Publisher, Access, and Skype for Business. Its on sale for $40. 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.

[Category: 1, daily deal]

— Publishers Get One Step Closer To Killing Libraries

 

at 3/27/23 10:36am

Last Monday was the day of the oral arguments in the Big Publishers lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments. The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels. I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal. And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law. But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here. A key part of the ruling, as in a large percentage of cases that are about fair use, is looking at whether or not the use of the copy is “transformative.” Judge Koeltl is 100% positive it is not transformative. There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.7 IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.” But… there’s a lot more to “transformative” use than simply adding something new or altering the meaning. In many cases, fair use is found in cases where you’re copying the exact same content, but for a different purpose, and the Internet Archive’s usage here seems pretty clearly transformative in that it’s changing the way the book can be consumed to make it easier for libraries to lend it out and patrons to read it. That is, the “transformation” is in the way the book can be lent, not the content of the book. I know many people find this strange (and the judge did here as well) saying things like “but it’s the whole work.” Or “the use is the same because it’s still just reading the book.” But the Supreme Court already said, quite clearly, that such situations can be fair use, such as in the Sony v. Universal case that decided VCRs were legal, and that time shifting TV shows was clear fair use. In that ruling, they even cite Congress noting that “making a copy of a copyright work for… convenience” can be considered fair use. Unfortunately, Judge Koeltl effectively chops away a huge part of the Sony ruling in insisting that this is somehow different. But Sony is plainly inapposite. IA is not comparable to the parties in Sony either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes them available to patrons rather than purchasing ebook licenses from the Publishers. IA is also unlike the home viewers in Sony, who engaged in the “noncommercial, nonprofit activity” of viewing at a more convenient time television programs that they had the right to view for free at the time they were originally broadcast. 464 U.S. at 449. The home viewers were not accused of making their television programs available to the general public. Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse. But note what the Judge did here. Rather than rely on the text of what the Supreme Court actually said in Sony, he insists that he won’t apply the rules of Sony because the parties are different. But if the basic concepts and actions are covered by the Sony ruling, it seems silly to ignore them here as the judge did. And the differences highlighted by the court here have no bearing on the actual issues and the specifics of fair use and the law. I mean, first of all, the fact that Koeltl claims that the Internet Archive is not engaged in “noncommercial, nonprofit activity” is just weird. The Internet Archive is absolutely engaged in noncommerical, nonprofit activity. The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way. Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong. There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case. Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koeltl leans on heavily for his ruling. Here, Judge Koeltl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library. Judge Koeltl seems particularly worried about how much damage this could do this artificially inflated market: It is equally clear that if IA’s conduct “becomes widespread, it will adversely affect the potential market for the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues. But go back and read that paragraph again, and replace the key words to read that if libraries become widespread, it will adversely affect the potential market for buying books in bookstores… because libraries would be “diverting potential readers” from purchasing physical books, which “plainly risks expanded future displacement of the Publishers’ potential revenues.” Again, the argument here is effectively that libraries themselves shouldn’t be allowed. And that seems like a problem? Koeltl also falls into the ridiculous trap of saying that “you can’t compete with free” and that libraries will favor CDL-scanned books over licensed ones: An accused infringer usurps an existing market “where the infringer’s target audience and the nature of the infringing content is the same as the original.” Cariou, 714 F.3d at 709; see also Andy Warhol Found., 11 F.4th at 50. That is the case here. For libraries that are entitled to partner with IA because they own print copies of books in IA’s collection, it is patently more desirable to offer IA’s bootleg ebooks than to pay for authorized ebook licenses. To state the obvious, “[i]t is difficult to compete with a product offered for free.” Sony BMG Music Ent. v. Tenenbaum, 672 F. Supp. 2d 217, 231 (D. Mass. 2009). Except that’s literally wrong. The licensed ebooks have many features that the scanned ones don’t. And many people (myself included!) prefer to check out licensed ebooks from our local libraries rather than the CDL ones, because they’re more readable. My own library offers the ability to check out books from either one, and defaults to recommending the licensed ebooks, because they’re a better customer experience, which is how tons of products “compete with free” all the time. I mean, not to be simplistic here, but the bottled water business in the US is an over $90 billion market for something most people can get for free (or effectively free) from the tap. That’s three times the size of the book publishing market. So, uh, maybe don’t say “it’s difficult to compete with free.” Other industries do it just fine. The publishers are just being lazy. Besides, based on this interpretation of Warhol, basically anyone can destroy fair use by simply making up some new, crazy, ridiculously priced, highly restrictive license that covers the same space as the fair use alternative, and claim that the alternative destroys the “market” for this ridiculous license. That can’t be how fair use works. Anyway, one hopes first that the Supreme Court rejects the terrible 2nd Circuit ruling in the Warhol Foundation case, and that this in turn forces Judge Koeltl to reconsider his argument. But given the pretzel he twisted himself into to ignore the Betamax case, it seems likely he’d still find against libraries like the Internet Archive. Given that, it’s going to be important that the 2nd Circuit get this one right. As the Internet Archive’s Brewster Kahle said in a statement on the ruling: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors and we plan to appeal it.” What happens next is going to be critical to the future of copyright online. Already people have pointed out how some of the verbiage in this ruling could have wide reaching impact on questions about copyright in generative AI products or many other kinds of fair use cases. One hopes that the panel on the 2nd Circuit doesn’t breezily dismiss these issues like Judge Koeltl did.

[Category: association of american publishers, internet archive, controlled digital lending, copyright, ebooks, fair use, john koetl, libraries, licensing, transformative use]

— Tech Press Slowly Figuring Out That Banning TikTok Doesn’t Fix The Actual Problem

 

at 3/27/23 6:28am

The great TikTok moral panic of 2023 is largely a distraction. It’s a distraction from the fact we’ve refused to meaningfully regulate dodgy data brokers, who traffic in everything from your daily movement habits to your mental health diagnosis. And it’s a distraction from our corrupt failure to pass even a baseline privacy law for the internet era. Until the last few weeks, thats been an oddly under-represented point in press coverage: namely that banning TikTok doesnt actually fix the problem youre claiming to fix if youre not willing to regulate the data broker space more generally. In large part because Chinese and Russian intelligence (or U.S. governments seeking to avoid warrants) can simply pay data brokers for sensitive information anyway. When the press covers TikTok, this kind of important context either doesnt exist or is weirdly downplayed. Case in point: the Wall Street Journal last week published a review of more than 3,500 companies, organizations, and government entities that found that tracking pixels from TikToks parent company ByteDance were present in 30 U.S. state-sponsored government websites across 27 states. Several of those states have taken strides to ban TikTok on government owned devices (a good call), yet were kind of oblivious that this additional layer of tracking was even taking place: The presence of that code means that U.S. state governments around the country are inadvertently participating in a data-collection effort for a foreign-owned company, one that senior Biden administration officials and lawmakers of both parties have said could be harmful to U.S. national security and the privacy of Americans. So yes, this is not great. At the same time, this is not remotely unique to TikTok. With no privacy law for the internet era, and a general refusal to regulate the data broker space (lest U.S. companies make slightly less money and the U.S. government be forced to obtain warrants), weve created an information exchange ecosystem that sees little meaningful oversight or accountability. Every app on your phone, every website you visit, every telecom network you use all track everything about you in granular detail. That data is then hoovered up by an intentionally confusing data broker market where any idiot with a nickel can buy access to it. Claims that this data has been anonymized (and therefore completely safe) are monumental bullshit. Far down the page, the WSJ acknowledges that this problem goes well beyond TikTok: U.S. adversaries such as China and Russia routinely use shell companies and proxies to extract marketing and consumer information from the advertising exchanges that deliver the display ads, according to people familiar with the matter. Such advertising exchanges have code running on nearly every cellphone on earth and can collect information about many of those devices.  But again, notice how the fact that banning TikTok fixes absolutely none of this is kind of just a weird afterthought. And this is one of the better stories on the subject. Most mainstream stories on TikTok are tinged with all kinds of weird patriotic biases that generally miss the forest for the trees, keen on parroting the claim that banning a single app actually solves what are much deeper problems. Only in the last few months have I seen this dynamic start to shift as the TikTok hearing gets close, but its been rough sledding. I still tend to think the U.S. press has been generally played by politicians whose motivations have little to actually do with consumer privacy and national security. I think theres plenty of xenophobic folks who simply believe that the money being made by ByteDance belongs in the back pocket of American companies, wholl then get a free pass to do all the things were accusing China of. The fact that a TikTok ban does little to fix the actual problem (a corrupt refusal to regulate data brokers) never even enters into it because most of the folks making the most noise about TikTok are not interested in fixing the actual problem. They dont want empowered consumers opting out of lucrative data over-collection by U.S. companies, nor do they want the U.S. government forced to obtain warrants. Even if our refusal to meaningfully regulate data brokers means that foreign governments have wider access to U.S. consumer data. So instead we get whatever this weird moral panic is; basically a lot of sound and fury, signifying nothing. A grand fit of hyperventilation designed to generally distract you from our well-documented, corruption-fueled failures on consumer protection and privacy law.

[Category: 1, tiktok, chinese intelligence, data brokers, moral panic, privacy, privacy law, privacy legislation, social media, surveillance, tiktok ban]

As of 3/29/23 3:53pm. Last new 3/29/23 2:31pm.