Tired of being underserved and overbilled by shitty regional broadband monopolies, back in 2002 a coalition of local Utah governments formed UTOPIA — (the Utah Telecommunication Open Infrastructure Agency). The inter-local agency collaborative venture then set about building an “open access” fiber network that allows any ISP to then come and compete on the shared network.
As we’ve noted over the years, regional monopolies like Qwest (now Centurylink or Lumen) didn’t much like that. They desperately tried to sue and harass the network out of existence in the early aughts, claiming the concept violated numerous local laws (it didn’t). These efforts failed, in part, because of widespread support among a public extremely tired of being ripped off by shitty monopolies.
Two decades later and the coalition just announced that 18 different ISPs now compete for Utah resident attention over a network that now covers 21 different Utah cities. In many instances, ISPs on the network are offering symmetrical (uncapped) gigabit fiber for as little as $45 a month (plus $30 network connection fee, so $75). Some ISPs are even offering symmetrical 10 Gbps fiber for around $150 a month:
“Sumo Fiber, a veteran member of the UTOPIA Open Access Marketplace, is now offering 10 Gbps symmetrical for $119, plus a $30 UTOPIA Fiber infrastructure fee, bringing the total cost to $149 per month.”
It’s a collaborative hybrid that blurs the line between private companies and government, and it works. And the prices being offered here are significantly less than locals often pay in highly developed tech-centric urban hubs like New York, San Francisco, or Seattle.
Yet giant local ISPs like Comcast and Qwest spent decades trying to either sue this network into oblivion, or using their proxy policy orgs (like the “Utah Taxpayer Association“) to falsely claim this effort would end in chaos and inevitable taxpayer tears. Yet miraculously UTOPIA is profitable, and for the last 15 years, every UTOPIA project has been paid for completely through subscriber revenues.
For years, real world experience and several different studies and reports (including see our Copia study on this concept) have made it clear that open access networks and policies result in faster, better, more affordable broadband access. UTOPIA is proving it at scale, but numerous other municipalities have been following suit with the help of COVID relief and infrastructure bill funding.
Sometimes such networks are owned by local governments. Sometimes they’re community-owned cooperatives. Sometimes they’re the extension of the local city-owned utility. Sometimes they’re built on the back of public/private partnerships.
According to a database of such networks tracked by the Institute For Local Self Reliance (which I have done research and writing work for), there are now 450 municipal broadband networks in the U.S. Since January 1, 2021, at least 47 new networks have come online, with dozens in the planning or pre-construction phases. And this may be an undercount given the FCC’s failure to track them all.
But because big monopolies (and a bunch of Libertarian think tankers with covert financial ties to those same monopolies) didn’t like the idea for ideological or financial reasons, federal and state policymakers have vacillated between demonizing the idea of municipal broadband, or banned it entirely (17 states currently prohibit such networks, and House Republicans attempted a federal ban during COVID).
Again, this could have all been prevented if big ISPs like AT&T, Comcast, Verizon, CenturyLink and others had actually delivered the affordable, ultra-fast access Americans have demanded for decades. It could have been avoided if they’d embraced competition. It could have been avoided if they’d properly used the untold billions in taxpayer subsidies they’ve received over the last thirty years to expand access.
Community and municipal broadband sees widespread bipartisan support. It’s an organic, highly local, response to decades of corruption and market failure these companies enabled at every step of the way. Any impact it has on regional telecom monopolies was entirely earned on the back of decades of hubris and greed.
Is there any law that Elon Musk actually understands?
The latest is that he’s lost yet another lawsuit, this time (in part) for not understanding copyright law.
There have been a variety of lawsuits regarding data scraping over the past decade, and we’ve long argued that such scraping should be allowed under the law (though sites are free to take technical measures to try to block them). Some of these issues are at stake in the recent Section 230 lawsuit that Ethan Zuckerman filed against Meta. That one is more about middleware/API access.
But pure “scraping” has come up in a number of cases, most notably the LinkedIn / HiQ case, where the 9th Circuit has said that scraping of public information is not a violation of the CFAA, as it was not “unauthorized access.” But the follow-up to that case was that the court still blocked HiQ from scraping LinkedIn, in part because of LinkedIn’s user agreement.
This has created a near total mess, where it is not at all clear if scraping public data on the internet is actually allowed.
This has only become more important in the last few years with the rise of generative AI and the need to get access to as much data as possible to train on.
Internet companies have been pushing to argue that their terms of service can block all kinds of scraping, perhaps relying on the eventual injunction blocking HiQ. Both Meta and ExTwitter sued a scraping company, Bright Data, arguing that its scraping violated their terms of service.
In January, Meta’s case against Bright Data was dismissed at the summary judgment stage. The judge in that case, Edward Chen, found that Meta’s terms of service clearly do not prohibit logged-off scraping of public data.
This time, it’s Judge William Alsup, who has dismissed the case for failure to state a claim. Alsup’s decision is a bit more thorough. It highlights that there are two separate issues here: did it violate ExTwitter’s terms of service to access its systems for scraping, and then, separately, to scrape and sell the data.
On the access side, the judge is not convinced by any of the arguments. It’s not trespass to chattels, because that requires some sort of injury.
Critically, the instant complaint alleges no such impairment or deprivation. X Corp. parrots elements, reciting that Bright Data’s “acts have caused injury to X Corp. and . . . will cause damage in the form of impaired condition, quality, and value of its servers, technology infrastructure, services, and reputation” (Amd. Compl. ¶ 102). Its lone deviation from that parroting — a conclusory statement that Bright Data’s “acts have diminished the server capacity that X Corp. can devote to its legitimate users” — fails to move the needle (Amd. Compl. ¶ 98). To say nothing of the fact that, as alleged, Bright Data and its customers are legitimate X users (subject to the Terms), the scraping tools and services they use are reliant on X Corp.’s servers functioning exactly as intended.
It’s not fraud under California law, because there’s no misrepresentation:
Starting with the argument that Bright Data’s technology and tools misrepresented requests, remember X Corp. does not allege that Bright Data or its customers have used their own registered accounts, or any other registered accounts, to scrape data from X, i.e., to access X by sending requests to X Corp.’s servers (for extracting and copying data). Meanwhile, X Corp. acknowledges that one does not need a registered account to access X and send such requests (see Amd. Compl. ¶ 22). X Corp. also acknowledges that X users with registered accounts can access X and send such requests without logging in to their registered accounts
And it’s not tortious interference with a contract, because, again, there’s no damage:
Among the elements of a tortious-interference claim is resulting damage. Pac. Gas & Elec., 791 P.2d at 590. The only damage that X Corp. plausibly pleaded in the instant complaint is that resulting from scraping and selling of data and, by extension, inducing scraping. X Corp. has not alleged any damage resulting from automated access to systems and, by extension, inducing automated access. As explained above, X Corp. has pleaded no impairment or deprivation of X Corp. servers resulting from sending requests to those servers. And, thin allusions to server capacity that could be devoted to “legitimate users” and reputational harm — not redressable under trespass to chattels as a matter of law — are simply too conclusory to be redressable at all. X Corp. will be allowed to seek leave to amend to allege damage (if any) resulting from automated access, as set out at the end of this order. But the instant complaint has failed to state a claim for tortious interference based on such access.
As for the scraping and selling of data, well, there’s no breach there either. And here we get into the copyright portion of the discussion. The question is who has the rights over this particular data. ExTwitter is claiming, somehow, that it has the right to stop scrapers because it has some rights over the data. But, the content is from users. Not ExTwitter. And that’s an issue.
Judge Alsup notes that ExTwitter’s terms give it a license to the content users post, but that’s a copyright license. Not a license to then do other stuff, such as suing others for copying it.
Note the rights X Corp. acquires from X users under the non-exclusive license closely track the exclusive rights of copyright owners under the Copyright Act. The license gives X Corp. rights to reproduce and copy, to adapt and modify, and to distribute and display (Terms 3–4). Section 106 of the Act gives “the owner of copyright . . . the exclusive rights to do and to authorize any of the following”: “to reproduce . . . in copies,” “to prepare derivative works,” “to distribute copies . . . to the public by sale,” and “to display . . . publicly.” 17 U.S.C. § 106. But X Corp. disclaims ownership of X users’ content and does not acquire a right to exclude others from reproducing, adapting, distributing, and displaying it under the non-exclusive license
Alsup notes that ExTwitter could, in theory, acquire the copyright on all content published on the platform instead of licensing it. However, he claims that it probably doesn’t do this because it could impact the company’s Section 230 immunities:
One might ask why X Corp. does not just acquire ownership of X users’ content or grant itself an exclusive license under the Terms. That would jeopardize X Corp.’s safe harbors from civil liability for publishing third-party content. Under Section 230(c)(1) of the Communications Decency Act, social media companies are generally immune from claims based on the publication of information “provided by another information content provider.” 47 U.S.C. § 230(c)(1). Meanwhile, under Section 512(a) of the Digital Millenium Copyright Act (“DMCA”), social media companies can avoid liability for copyright infringement when they “act only as ‘conduits’ for the transmission of information.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1041 (9th Cir. 2013); 17 U.S.C. § 512(a). X Corp. wants it both ways: to keep its safe harbors yet exercise a copyright owner’s right to exclude, wresting fees from those who wish to extract and copy X users’ content.
I have to admit, I’m not sure that a copyright assignment would change the Section 230 analysis… but perhaps? Anyway, it’s a weird hypothetical to raise in this scenario.
The larger point is just that ExTwitter has no right to stop others from copying this data. That’s not part of the rights the company has over the content on the site put there by third-party users.
The upshot is that, invoking state contract and tort law, X Corp. would entrench its own private copyright system that rivals, even conflicts with, the actual copyright system enacted by Congress. X Corp. would yank into its private domain and hold for sale information open to all, exercising a copyright owner’s right to exclude where it has no such right. We are not concerned here with an arm’s length contract between two sophisticated parties in which one or the other adjusts their rights and privileges under federal copyright law. We are instead concerned with a massive regime of adhesive terms imposed by X Corp. that stands to fundamentally alter the rights and privileges of the world at large (or at least hundreds of millions of alleged X users). For the reasons that follow, this order holds that X Corp.’s statelaw claims against Bright Data based on scraping and selling of data are preempted by the Copyright Act
And thus, the claims here also fail.
Arguably, this complaint was less silly than some others (and, yes, Meta made a similar — and similarly failed — complaint). The mess of the HiQ decisions means that the issue of data scraping is still kind of a big unknown under the law. Eventually, the Supreme Court may need to weigh in on scraping, and that’s going to be yet another scary Supreme Court case…
Oh, man. There’s so much going on here. The headline is only part of it.
We’ll get to it (and through it) as efficiently as possible but expect multiple stops along the way. Georgia Gee’s reporting on this for Wired is devastating. There’s so much stupidity and wrongness going on here, the article almost reads like extremely dark satire.
A little background: for whatever reason, the current mayor and law enforcement officials believe the subways are more dangerous than ever, possibly because they’ve completely forgotten the solid two-decade run of horrific crime that began in the 1970s and only began declining to current rates in the mid-1990s.
Then there’s the transit authority, which seems to believe that it’s dealing with an epidemic of fare-jumping — one never before witnessed by an agency suffering from the same sort of long-term memory loss.
This has culminated in calls for AI to do everything from recognizing fare jumpers to detecting weapons carried by paying passengers and fare jumpers alike. The state government also surged some National Guard troops to man the perimeter (and interior), giving riders the added bonus of police state vibes as they headed towards certain doom by entering a subway car.
History has been forgotten, replaced by histrionics. Sure, it’s almost spelled the same but only one has any footing in reality.
And speaking of reality, this is where the mayor begins to detach from it. Mayor Eric Adams wants to test-drive gun detection AI created by a company called Evolv in New York subways. And he wants to do it despite company officials making it clear its AI will not perform well under these circumstances.
In an investor call on March 15, 2024, Peter George, the company’s CEO, admitted that the technology was not geared toward subway stations. “Subways, in particular, are not a place that we think is a good use case for us,” George said, due to the “interference with the railways.”
Nonetheless, this is the product Mayor Adams prefers. And it’s not entirely his fault. The company’s CEO may have been brutally honest about his tech’s chances in an undesirable environment, but the company’s PR reps were far less concerned. In fact, they were downright cheery, proclaiming Evolv to be a “mission-driven company” that welcomed the opportunity to fail publicly during a test drive in the United States’ most-used mass transit system.
That cheeriness also downplays previous tests of Evolv’s gun detection system in New York City, which haven’t exactly gone well.
Evolv’s technology was used to screen visitors in a city-run Bronx hospital, where a man had been shot inside the emergency room in January 2022. This wasn’t very successful—the scanners produced false positives 85 percent of the time during the seven-month pilot.
So, here we have a product that didn’t function well in an environment that had never been referred to by Evolv’s CEO as non-optimal. And we have a direct statement from the CEO that seems to suggest he’d rather test this tech anywhere else but the NYC subway system.
And then we have the mayor, who has ignored all of this to portray this tech roll-out as win not just for New Yorkers, but possibly for all mankind. I am not even kidding.
Despite this, following the death of a man who was pushed onto the subway tracks in late March, Adams announced that Evolv’s gun-detection scanners would be tested in the city’s train stations. “This is a Sputnik moment,” Adams said on March 28. “When President Kennedy said we were going to put a man on the moon.”
Jesus. I could probably do 10,000 words on the statement alone. I won’t. But I’m still going to do several.
Where do you start? Mayor Adams comparing himself to one of the most beloved presidents/starfuckers to ever hold office? The comparison of looking for guns on a subway to one of the greatest achievements ever in the human race?
How about the fact that the Space Race was originally about asserting dominance? That the space program became more useful scientifically doesn’t erase its origin as a dick-measuring contest between us and the Red Menace. We needed to show them we could do everything better, if only to keep the mutually-assured-destruction temperatures down as much as possible during the Cold War.
Is the mayor comparing subway scofflaws to the USSR? Is he insinuating that ensuring the safety of subway passengers is on par with putting US boots on the lunar ground?
What would installing more metal detectors be portrayed as? Sending animals into orbit? Or does Mayor Adams think that might be a bad idea? After all, police officers are at least as willing to kill dogs as commie scientists.
Or is it this: does he consider AI policing of mass transit a similar scientific achievement? “If we can put a man on the moon, surely we can put an algorithm in a turnstile!” What even the fuck.
And does the mayor really want to detect all the guns? Let’s not forget (as Mayor Adams surely has), this city loves a good guy with a gun. Bernie Goetz was treated as a hero for going all vigilante in a subway car. If you detect those guns, you might find yourself on the wrong side of history. (But that probably doesn’t matter when you can’t even be bothered to remember it.)
Self-aggrandizement aside, there’s probably another reason Mayor Adams is so hot for a product even the company’s CEO expects to disappoint in these conditions. The short answer is Adams like himself, likes cops, and likes anyone willing to let him still be (sort of) a cop while he’s officially the mayor. More great report from Wired’s Georgia Gee:
Back in 2022, Adams tasked New York’s deputy mayor, Philip Banks III, with finding a gun-detection solution. Before joining the administration, he served as NYPD’s chief of department, but resigned in 2014 amid a federal bribery and corruption investigation in which he was later named as an unindicted coconspirator. (Banks was never charged.)
While Adams said in May 2022 that he found Evolv online, Ozerkis from Evolv tells WIRED that the NYPD had contacted Evolv “to explore and test the possibility of using our screening solution around the city as part of their multi-pronged plan to curb violent crime.”
There was a lot of overlap with former members of the NYPD. Adams and Banks came up together as police officers—as did a then-account-executive of Evolv, also name-dropped by Chitkara in the email to the mayor’s staff. Dominick D’Orazio, who had been Evolv’s sales manager in the northeast US before being promoted to regional manager in April, was a commander in Brooklyn South whose reporting line included Banks—who was, at the time, deputy chief of patrol for Borough Brooklyn South. (Banks has denied meeting D’Orazio in his capacity as an Evolv employee.)
Yeah, it’s all deeply incestuous. And, because of that, it’s deeply stupid. The tech has failed frequently, including its deployments in schools. It’s gun detection tech that apparently can’t detect guns. But because the mayor and his buddies are deeply involved, it’s being portrayed as the next best thing to martial law by someone currently being completely consumed by his own hubris.
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Who has a stronger case that the TikTok ban is unconstitutional? TikTok itself… or its users? We may find out, as both are trying.
Last week, TikTok officially filed a petition to challenge the Constitutionality of the TikTok ban law. I’ve heard a few people say that they don’t believe TikTok has that strong of a case (I, personally, disagree), but that TikTok’s users might have a stronger argument.
Well, they’re going to try, as a group of TikTok users have now filed a similar petition in the DC Circuit focused solely on the First Amendment issue (the only real issue that impacts them). You may recall that some Montana-based TikTok users filed a similar lawsuit in that state to contest the Montana ban, which succeeded. This new case on behalf of users is filed using the same law firm, Davis Wright Tremaine, and some of the same lawyers as the case in Montana.
In Montana, the two cases (TikTok itself and its users) were effectively merged into a single case before one judge. It’s unclear if the same thing will happen here. As this case claims, for users of TikTok, the US government is interfering with their own expressive rights by effectively banning the space in which they prefer to publish their content:
Petitioners are among the 170 million Americans who create, publish, view, interact with, and share videos on TikTok. They rely on TikTok to express themselves, learn, advocate for causes, share opinions, create communities, and even make a living. Although they come from different places, professions, walks of life, and political persuasions, they are united in their view that TikTok provides them a unique and irreplaceable means to express themselves and form community. They bring this lawsuit to preserve their First Amendment rights and the rights of countless others, which are threatened by the Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50 (Apr. 24, 2024).
The Act bans TikTok unless its owners divest the platform in a manner that is infeasible, as the company has stated and as the publicly available record confirms. The Act thus promises to shutter a discrete medium of communication that has become part of American life, prohibiting Petitioners from creating and disseminating expressive material with their chosen editor and publisher—and from receiving such material from others.
This extraordinary restraint on speech violates the First Amendment. In supporting the Act, lawmakers claimed that TikTok “manipulate[s]” American minds and disseminates “propaganda” that would “use our country’s free marketplace to undermine our love for liberty.” But it is the Act that undermines the nation’s founding principles and free marketplace of ideas. The First Amendment to our Constitution precludes Congress from censoring speech because of its content, viewpoints, editorial practices, or identity of speakers or publishers.
I’ve seen some push back on this, claiming that there is no “right” to access TikTok, and that the users are still free to post their content elsewhere. But that makes no sense. The government can’t shut down a newspaper publisher and say that it’s okay because Americans can get their news from elsewhere.
The case details how each of the eight petitioners use TikTok and would be harmed by the site being blocked. The petitioners have a wide variety of backgrounds and experiences, and you can tell that some were chosen to appeal to certain, let’s say… constituencies… on the Supreme Court. I mean…
Petitioner Christopher Townsend lives with his family in Philadelphia, Mississippi. He served in the U.S. Air Force for six years as a cryptologic language analyst. Townsend is now a well-known hip hop artist and founded an organization dedicated to promoting biblical literacy by quizzing individuals on their knowledge of stories from the Bible. Townsend shares videos of these light-hearted and informative biblical quizzes with his 2.5 million TikTok followers. He also uses the app to share his music, which addresses topics such as his religion, patriotism, and political views. Because of the Act, Townsend faces losing the platform on which he is able to express his beliefs and share his spirituality and music with the world.
Petitioner Steven King lives in Buckeye, Arizona. King has used TikTok since 2019 to create humorous content about his daily life and spread awareness about LGBTQ pride, self-confidence, and sober living. King also derives immense satisfaction and enjoyment from using his ingenuity to create content on the app for his 6.8 million followers—and seeing this content reach the kind of audience that finds it most compelling. His content has deeply resonated with the public, some of whom ask King questions on TikTok about his experience coming out as gay in Arizona and his 28-year loving relationship with his husband. This community—which King has been unable to find on other social media and entertainment platforms—means the world to him.
Something for everyone!
The complaint also highlights how some of the other alternatives out there just aren’t equivalent for the petitioners:
In fact, all of the Petitioners have tried using other social media apps, with far less success. For example, King has 6.8 million followers on TikTok, but only about 137,000 on Facebook. Sexton has 2.2 million followers on TikTok, but only about 44,000 on Instagram. Townsend has 2.5 million followers on TikTok, but only about 298,000 on Instagram. Firebaugh has more than 430,000 followers on TikTok, but only about 22,000 on Instagram. Martin has one million followers on TikTok, but only about 10,000 on Instagram. Spann has over 760,000 followers on TikTok, but less than 10,000 on Instagram. Tran’s company has 138,000 followers on TikTok, but less than 2,000 followers on Facebook. And Cadet has 126,000 followers on TikTok, but less than 7,000 on Instagram.
As for the actual First Amendment claim, it’s pretty straightforward:
The Act regulates “speech” under the First Amendment by singling out and effectively banning a medium of communication—TikTok—that Petitioners (and other Americans) use to engage in protected expression, prohibiting them from sending and receiving information they are entitled to communicate.
The Act erects an unconstitutional prior restraint by banning protected speech on TikTok and by empowering the President to pre-approve who may publish and edit TikTok’s service and, in turn, the speech Petitioners wish to disseminate on that platform.
The Act regulates on a content-, speaker-, and viewpoint-basis. The law is content- and speaker-based because it expressly bans TikTok but exempts other companies based on the type of content those companies’ apps publish. The law is also content-, speaker-, and viewpoint-based because it prohibits operation of TikTok’s current content recommendation system by its current editors, preventing Petitioners from using their chosen editor and publisher to engage in protected communication. From the standpoint of the First Amendment, this restriction is no different from prohibiting American freelance writers from submitting articles to The Economist, or American musicians from disseminating songs through Spotify. The Act further regulates speech based on its viewpoint because it is motivated by a disfavored view of the ideas that are, or could be, expressed or promoted on TikTok.
Indeed, the petition makes clear that this isn’t even like most other challenges of laws where the test for strict scrutiny of regulating speech is a very high bar. Here, they claim the bar should be even higher than strict scrutiny.
The Act for all these reasons bears a heavy presumption of unconstitutionality—more stringent than even strict scrutiny—and fails even intermediate scrutiny. The government cannot ban a medium for communication because it believes that medium is used to transmit foreign “propaganda” or other protected content. Nor does the government have any actual, non-speculative evidence that banning TikTok in its current form enhances Americans’ data security, or that its ban is narrowly tailored to accomplish that objective. The fact that the Act is paired with other federal legislation restricting how data brokers may share and sell American user information to certain foreign entities underscores that the ban is not narrowly tailored.
This is the key point I keep raising when people insist that the TikTok ban is fine. There are always two arguments, and neither make much sense. If the concern is propaganda, too bad. The 1st Amendment protects propaganda. If the concern is data privacy/national security, well, then you have to show some actual evidence to support that claim (and also, maybe, pass a comprehensive privacy bill that applies to everyone instead?)
So neither is an acceptable justification.
The Act is unconstitutionally overbroad because it bans an entire medium of communication and all the speech communicated through that medium, even though, at the very least, the vast majority of that speech is protected and not otherwise subject to suppression.
Unless declared invalid and enjoined, the Act will unlawfully deprive Petitioners of their rights under the First Amendment, inflicting immediate and irreparable harm.
The argument here is simpler and more straightforward than the argument that TikTok itself is making, and is (not surprisingly) designed to cut to the heart of the matter before the court. I expect the DOJ will make all sorts of handwavy claims that the divestiture demand has no impact on speech and do as much to minimize the “ban” part for a failed divestiture.
Either way, we’re off to the races. Not just directly from TikTok, but from the service’s users as well. I hope they post the oral arguments to TikTok.
Streaming video still provides some meaningful advantages to traditional cable: it’s generally cheaper (assuming you don’t sign up for every service under the sun); customer satisfaction ratings are generally higher; and users have more power to pick and choose and cancel services at a whim.
But the party simply isn’t going to last.
Thanks to industry consolidation and saturated market growth, the streaming industry has started behaving much like the traditional cable giants they once disrupted. As with most industries suffering from “enshittification,” that generally means steadily worse service at higher prices to appease Wall Street’s demand for improved quarterly returns at any cost (even long term company health).
As a result, Netflix has started acting like password sharing, something it advocated for for years, is a dire cardinal sin. Amazon now thinks would be fun to increase the number of ads it runs, charging Amazon Prime users even more money to avoid them. Consumers are paying more for streaming than ever as layoffs abound, streaming catalogs shrink, and the underlying product quality gets worse.
“Disney and Warner Bros. Discovery recently announced that they’ll set aside their competitive impulses and team up, Avengers-style, to offer a super-bundle of their streaming services: Disney+, Hulu, and Max.”
Disney recently spent $8.6 billion to buy Comcast’s share in Hulu, so it’s not really “setting aside their competitive impulses” as much as it is just consolidation. Hunting and pecking through numerous streaming competitors to find who currently owns the rights to your favorite show certainly can be annoying. But the industry’s solution is generally going to be, over time, mergers and consolidation:
“But if bundles are back, why did we ever give up cable in the first place? That question stares me in the face every time I find myself in a hotel, enamored with the nostalgia of flipping from late-night talk shows to Family Feud to The Real Housewives of Salt Lake City to whatever Adam Sandler comedy is playing on Comedy Central.”
At this point, most of the same executives who ruined cable TV are now working in streaming. And they’re being driven by the same underlying motivation that ultimately destroyed cable TV: Wall Street’s insatiable need for impossible quarterly growth at any cost. It will likely do the same thing to streaming as it has done to countless other U.S. publicly-traded sectors (air travel, banking, insurance, telecom, etc.)
As the streaming industry consolidates and competition among streaming services wanes, you’ll likely see petty stuff like making it harder to actively cancel your streaming services (see: AOL, the Wall Street Journal’s online subscription, or cable TV). You’ll see weird new restrictions. You’ll see layoffs. And you’ll most certainly see a lot of completely and very broken mergers (see: AT&T Time Warner Discovery).
You’ll also, like in airlines and in telecom, see weird efforts to funnel you into higher and higher price points if you want the user experience you used to have.
I suspect most customers will still generally find streaming a better, more flexible value proposition than cable for the next few years. But all the financial incentives point in fairly twisted directions, driving bad decisions made in the pursuit of the impossibility of unlimited growth at preposterous scale.
Which will, in turn, annoy consumers, making streaming vulnerable to disruption by either resurgent piracy (something that’s already happening), or other services. And the cycle repeats.
For all the pissing and moaning I did during the acquisition of Activision Blizzard by Microsoft — principally over the latter’s routine desire to talk about non-exclusivity in its games only to make them exclusive — Sony sure does know how to shit the bed when it comes to cross-platform titles and how to treat its customers well. On the more general side, the company has an unfortunate habit of disappearing all kinds of content from its published games and other media on a whim. And while Sony is happy to gobble up console exclusives itself — making the whining over Microsoft’s actions fall at least partially flat — the company also has found itself backtracking on occasion when it takes some dumb anti-customer action that it then has to walk back.
Which brings us to Helldivers 2. If you aren’t at least familiar with that game title, then you clearly have very little interest in gaming generally. The game launched with some issues, certainly, but was an absolute hit from the get go, including for PC gaming. Then, in the last few days, the development studio announced that the game would be patched to require that those playing the game on the PC would, for some reason, need to sign up for a PlayStation Network account or the game would be unplayable.
Last week, Arrowhead Studios announced that an upcoming update to its hit co-op shooter Helldivers 2 would require existing PC players on Steam to make a PlayStation Network account to continue playing. If they didn’t, they’d lose access to their Helldivers accounts, and that news did not land well. The move was bad for a litany of reasons, not least of which was the fact that Steam is supported in more countries than PSN, meaning that many players in some regions of the world would have no viable way to play the game they’d already owned on PC for months. As Helldivers 2 began getting delisted from several countries over the weekend, its community took to the offensive and review-bombed both the game and its ten-year-old predecessor.
Now PlayStation has predictably reversed course on its decision, and Helldivers 2 will no longer receive the aforementioned update. On its face, this appears like a wonderful development for the community, which won a decisive victory over PlayStation. However, this error also spells out that for all its success, PlayStation simply does not know what it’s doing when it comes to cross-platform titles, and will either continue to stumble upwards or accidentally burn itself time and time again at the repeated cost of its developers.
That last bit is really, really important. While there was plenty of ire saved for Sony from customers in this instance, far more of it was directed at Arrowhead Studios. To be clear, the account requirement was always part of the plan for this game and it was documented as such. But, that it was planned this whole time neither means it was ever a good idea, it certainly doesn’t mean it was a good idea given how the eventual rollout of the game went. It’s no exaggeration to say that people have been playing this game on their PCs for months and months. Why in the world you would suddenly press this PSN account requirement on them, the earliest adopters of the game, is beyond me.
And the reaction from the public is both telling and part of this overall problem. Sure, it’s good that Sony eventually decided it didn’t want to be pelted with digital rocks any longer and caved to the review bombing pressure it suffered. But it’s also true that nobody wants to show just how easy it is to weaponize the reviews for games for some vocal minority, or even majority, to get its way in all cases.
And again, this hurts the smaller Arrowhead Studios much, much more than it does a goliath like Sony. With the gaming giant so willing to risk the reputations of its studio partners, this really should cause potential future partners to wonder seriously whether such a partnership is a good idea.
To the outsider who doesn’t know about any of the drama of this weekend and decided to check out Helldivers 2 on Steam on a whim, its reviews likely made it seem like a bad purchasing option. Arrowhead community managers were taking hits in forums and getting chastised for doing a poor job of communicating the terms of PlayStation’s sudden policy change. Arrowhead’s CEO spent the weekend apologizing for initially disabling the PSN requirement to help support a bigger player audience, and he was the internet’s whipping boy for it. Not only did PlayStation force an otherwise beloved studio into this position, but its constant kowtowing to tactics such as review-bombing continues to legitimize bad actors.
Snatching defeat from the jaws of victory is never what you want to be known for, but that is starting to be Sony’s reputation when it comes to cross-platform games and its consumer practices in general. Perhaps the company could actually listen to its customers, rather than trying to dictate to them?
Walled Culture has been warning about the financialization and securitization of music for two years now. Those obscure but important developments mean that the owners of copyrights are increasingly detached from the creative production process. They regard music as just another asset, like gold, petroleum or property, to be exploited to the maximum. A Guest Essay in the New York Times points out one of the many bad consequences of this trend:
Does that song on your phone or on the radio or in the movie theater sound familiar? Private equity — the industry responsible for bankrupting companies, slashing jobs and raising the mortality rates at the nursing homes it acquires — is making money by gobbling up the rights to old hits and pumping them back into our present. The result is a markedly blander music scene, as financiers cannibalize the past at the expense of the future and make it even harder for us to build those new artists whose contributions will enrich our entire culture.
As well as impoverishing our culture, the financialization and securitization of music is making life even harder for the musicians it depends on:
In the 1990s, as the musician and indie label founder Jenny Toomey wrote recently in Fast Company, a band could sell 10,000 copies of an album and bring in about $50,000 in revenue. To earn the same amount in 2024, the band’s whole album would need to rack up a million streams — roughly enough to put each song among Spotify’s top 1 percent of tracks. The music industry’s revenues recently hit a new high, with major labels raking in record earnings, while the streaming platforms’ models mean that the fractions of pennies that trickle through to artists are skewed toward megastars.
Part of the problem is the extremely low rates paid by streaming services. But the larger issue is the power imbalance within all the industries based on copyright. The people who actually create books, music, films and the rest are forced to accept bad deals with the distribution companies. Walled Culture the book (free ebook versions) details the painfully low income the vast majority of artists derive from their creativity, and how most are forced to take side jobs to survive. This daily struggle is so widespread that it is no longer remarked upon. It is one of the copyright world’s greatest successes that the public and many creators now regard this state of affairs as a sad but unavoidable fact of life. It isn’t.
The New York Times opinion piece points out that there are signs private equity is already moving on to its next market/victim, having made its killing in the music industry. But one thing is for sure. New ways of financing today’s exploited artists are needed, and not ones cooked up by Wall Street. Until musicians and creators in general take back control of their works, rather than acquiescing in the hugely unfair deal that is copyright, it will always be someone else who makes most of the money from their unique gifts.
There’s no shortage of prognostication about the future of generative AI, including plenty of predictions that it won’t actually be around forever for various reasons. A lot of these takes are a little too speculative or just not very interesting, but one that stands out comes from law professor and returning podcast guest Eric Goldman, who joins us this week to discuss his recent lecture and subsequent paper arguing that the regulatory environment won’t allow generative AI to survive.
You may recall last month’s hilarious story of lawyer Mike Dunford’s response to a vexatious angry demand letter from IMG, representing the LAPD Foundation, claiming that a t-shirt with the following “Fuck the LAPD” logo violated its IP rights:
The response was as simple as it was direct: Lol, no.
As we highlighted in our post, the threat letter was ridiculously vague about what “IP” the LA Police Department Foundation believed it owned. It’s not difficult to figure out why: because nothing in the image above could possibly constitute either trademarks or copyright belonging to the LAPDF. Still, we had a few paragraphs explaining how if they claimed copyright, it would be wrong and another few paragraphs on why they’d be wrong about trademark too.
It turns out that in addition to the “LOL, no” letter, Dunford also sent a more detailed response to someone higher up at IMG, the rights company that sent the original, basically asking why his client, Cola Corporation (makers of fine anti-police wear), shouldn’t seek attorneys’ fees from IMG for their vexatious takedown.
If you’re wondering why the two separate letters were sent, it’s almost certainly because the first short one was the response. This second, much longer (but still hilarious) one was to basically say “y’all fucked up so bad, that you probably need to pay us for the time you wasted.”
The letter is a rollicking good time, as posted by Cola Corporation on Bluesky:
The second letter that @questauthority.bsky.social sent to LAPD reps on my behalf. Even more savage than “LOL, no.” I’ve highlighted my fave parts. What are yours?
I’ve extracted the letter and PDF’d it, which you can see embedded below.
It’s a hoot, and shows that Dunford is good for more than simply “lol, no” responses.
I write to give you and the thin-skinned bullies you represent an opportunity to provide whatever reason you can think of why my client should not seek to recover attorneys’ fees in this matter under 17 U.S.C. § 512(f) — and, really, to ask you to explain why any of you ever thought any of this was in any way a good idea.
Tell us how you really feel, Mike.
As you know, and I know, and every competent intellectual property lawyer knows, the ‘C’ in DMCA stands for “Copyright.” Unsurprisingly, a valid DMCA takedown therefore requires a valid, good-faith claim of copyright infringement. But you obviously do not have any such claim — or anything that is in the same time zone as such a claim. Neither the LAPDF nor the Los Angeles Police Department itself owns a copyright to the acronym “LAPD.” Nobody does, and nobody can. It is black letter law that individual words and short phrases are not subject to copyright protection. We both know that. Students in Intro to IP classes know that. But as a professional courtesy and on the off chance you somehow forgot, the footnote call at the end of this sentence is a relevant string cite.
I’m going to just post an image of the two footnotes on this page, because, for some reason, the OCR isn’t working great on the PDF copy I made, so I’m retyping all the quotes in this article, and there’s no way I’m retyping all these citations. But, yeah, you get the idea:
If you cannot see it, it’s a long string of recent cases that all highlight the point stated above, and then noting (“wow, that’s a lot of cases saying the same thing from just the last six months, right?). For the sake of brevity, we’re not providing you with a citation from every federal district court to prove the point. We’re pretty sure we could.”
Now, I wasn’t entirely sure that DMCA 512(f) would apply, because looking over the original letter that was sent to Cola Corporation that we posted with the original article, it does not directly purport to be a DMCA takedown. I recognize that “DMCA” has become shorthand for any sort of request for a takedown or any kind of copyright claim, but to be a true DMCA 512 notice for the purpose of demanding a takedown it requires some specific things.
However, as Dunford’s more verbose letter indicates, the guy who sent it, a lawyer named Andrew Schmidt, gave the document the title: “DMCA Takedown Notice – LAPD – The Cola Corporation.” And then emailed it with the subject line “DMCA Takedown notice.” It may be fine (well, not fine, but understandable) for a lay person to use the shorthand of calling something a DMCA notice. But, not a lawyer.
It seems clear that Schmidt was either lazy… or (more likely) was hoping that because “DMCA takedowns” are so widely known as a concept, that simply calling his document as such would lead an unsophisticated individual at Cola Corporation to get scared and fold.
Dunford further makes it clear that the format of the letter “mirrors the requirements” of an official DMCA takedown notice, to effectively argue that even if it wasn’t officially a “DMCA takedown notice,” it was substantially close enough that Cola Corporation might actually have a legitimate 512(f) claim.
Now, if you’ve followed Techdirt for any length of time, you probably know that DMCA 512(f) claims for filing a misleading DMCA takedown claim are nearly impossible to win for a variety of (mostly stupid) reasons. But, damn, if this weren’t a case where it’s pretty clear that, not only was IMG misrepresenting stuff, but that they knew full well they were misrepresenting stuff. And that means that it’s a situation where a 512(f) claim might actually be legit.
17 U.S.C § 512(f) provides a cause of action to those who are harmed by a knowing material misrepresentation that material was infringing. The representation that “Fuck the LAPD” infringes on the LAPD’s copyrights is clearly false. As noted above, your client owns no copyright relevant to the alleged infringement, because the phrase “LAPD” is not remotely subject to copyright protection. As it is literally impossible to infringe on a copyright that cannot exist, the “DMCA takedown” misrepresented both the ownership and infringement of the copyright. And it did so materially — it affected my client’s response to the purported takedown by leading it to pay me to deal with your blatant bullying.
And, yes, the one area where 512(f) claims most often fall down was whether or not the sender really “knew” it was misrepresenting things. In the Lenz case, famously, the court said as long as the sender subjectively believed the notice was legit, that’s all that’s necessary. But here…
Your company does this type of work professionally. Schmidt is an attorney, senior counsel to your company. Either he knew that there was no conceivable copyright claim here, much less a good faith one, or he is staggeringly incompetent. I would honestly prefer not to believe that IMG knowingly sent a false DMCA takedown to aid and abet a police organization in bullying my client — who was, at the time you sent the document containing the knowing misrepresentations, an unrepresented party — for exercising its First Amendment rights. Yet I simply cannot believe IMG hires attorneys so terrible at their job that IMG was unaware that its client did not have a copyright claim when it sent a DMCA takedown based, in part, on allegations of copyright infringement.
Ouch.
And while the DMCA 512(f) claim is specific to the copyright arguments (the C part, remember), the letter also makes it clear that IMG can’t get away with claiming there was at least good faith in the trademark part. Because there clearly is not.
I could explain why such a claim would fail by methodically working through the eight Sleekcraft factors, but, really, all that would do is waste all of our time. Let’s not pretend: it is inconceivable that a reasonable person, no matter how unobservant or hurried, would be confused into thinking that the Los Angeles Police Department or the Los Angeles Police Department Foundation are the source of “Fuck the LAPD” merchandise.
There’s a fun footnote 7 wedged in that paragraph for law nerds, but I’ll leave that for you to check out on your own.
The next part is just good old-fashioned fun:
That only becomes more obvious when the First Amendment implications of this deplorable incident are examined. The LAPD is to state the obvious a police department. They are an arm of the state. Criticism of the state is protected speech even when it is profane and disrespectful; “speech cannot be restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). That, too, is black-letter law, taught in every law school. The First Amendment acts to ensure that “individual expressions of ideas remain free from governmentally imposed sanctions,” Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988), it does so when that speech is critical of the government, and it even does so when that speech insults those in power. That’s not just basic law. It’s part of what makes America America.
I’m sure your response to that is going to be something along the lines of “but we don’t actually represent the LAPD, we’re acting on behalf of the LAPD Foundation, which really is different from the LAPD and just wants to protect its economic interests in selling licensed stuff that says “LAPD” on it. But we all know that’s not what this was about. There’s no likelihood of confusion, no infringement of copyright, no conceivable reason to think that people who like the LAPD will stop buying LAPD stuff if they can instead buy a shirt that says “Fuck the LAPD”. This isn’t about the IP. It’s about the LAPD and the LAPD Foundation being thin-skinned bullies who resent the existence of “Fuck the LAPD” merchandise.
Too damn bad.
The LAPD is not expected to like the existence of “Fuck the LAPD” merchandise. But their sole remedy is to not do things that result in people wanting to buy and wear “Fuck the LAPD” merchandise. I understand that would be a difficult task. But I promise you that it would still be easier than trying to get a court to rule that “Fuck the LAPD” shirts violate the LAPDF’s intellectual property rights.
To be honest, when we wrote our original post on Techdirt about all this, I had wanted to dig in deeper on all of these issues but felt like maybe I was going too hard in response to an issue that really only required “lol, no.”
But I do appreciate that Dunford also was willing to go deep and point out the obvious absurdities here. I eagerly await finding out if IMG ever replied…