An Appeals Court Broke Media Advertising, So The Copia Institute Asked The California Supreme Court To Fix It

Legal Issues

from the huge-implications dept

A few months ago a California court of appeals issued a really terrible decision in Liapes v. Facebook. Liapes, a Facebook user, was unhappy that the ads delivered to her correlated with some of her characteristics, like her age. As a result there were certain ads, like one provided by an insurer offering a particular policy for men of a different age, that didn’t get delivered to her.

Of course, it didn’t get delivered to her because the advertiser likely had little interest in spending money to place an ad to reach a customer who would not and could not turn into a sale, since she would not have been eligible for the promotion. And historically advertisers in all forms of media – newspapers, television, radio, etc. – have preferred to spend their marketing budgets on media likely to reach the same sorts of people as would purchase their products and services. Which is why, as we explained to the California Supreme Court, one tends to see different ads in Seventeen Magazine than, say, AARP’s.

Because we also tend to see different expression in each one, as the publishing company chooses what content to deliver to which people. There’s no law that says media companies have to deliver content that would appeal to all people in all media channels, nor could there be constitutionally, because those choices of what expression to deliver to whom are protected by the First Amendment.

Or at least they were up until the court of appeals got its hands on the lawsuit Liapes brought against Facebook, arguing that letting advertisers choose which users would get which ads based on characteristics like age violated the state’s Unruh Act. The Unruh Act basically prevents a company from unlawfully discriminating against people for protected characteristics – if it offers a product or service to one customer it can’t refuse to offer it to another because of things like their age.

But Facebook isn’t a business that sells tangible products or non-expressive services; it is a media business, just like TV stations are, newspapers are, magazine publishers are, etc. Like these other businesses, it is in the business of delivering expression to audiences. True, it is primarily in the business of delivering others users’ expression rather than its own, and it is more likely to have the ability to deliver editorially-tailored expression on an individual level, but then again, increasingly so can traditional media. In any case, there is nothing about the First Amendment that keys it only to the characteristics of traditional media businesses producing media for the masses. After all, they themselves often choose which demographic to target with their own media. Conde Nast, for instance, publishes both GQ and Vogue, as well as TeenVogue, and it is surely using demographics of the targeted audience to decide what expression to provide them in each publication.

But the upshot of the appeals court decision, finding Unruh Act liability when a media business uses demographic information to target an audience with certain content (including advertising content), is that either no media business will be able to make any sort of editorial decision based on the demographic characteristics of their intended audience – and as a result, there goes the American advertising model that has sustained American media businesses for generations – or, even if those businesses somehow are left beyond the Unruh Act, it will introduce an artificial exception to the First Amendment to carve out a business like Facebook because… well, just because. There really is no sound rationale for treating a company like Meta differently than any other media business, but if they could be uniquely targeted by the Unruh Act, unlike their more traditional media brethren, it would still gravely impact every Internet business, especially those that monetize the expression they provide with ads.

Which would be particularly troubling because not only are businesses like Facebook supposed to be protected by the First Amendment but they are supposed to be EVEN MORE PROTECTED by Section 230, which insulates them from liability arising from the expression others provide, as well as the moderation decisions the platforms like Facebook make to choose what expression to serve audiences. The court of appeals decision impinges upon both these forms of protection, and in contravention of Section 230’s pre-emption provision, which prevents states from messing with this basic statutory scheme with its own laws, of which the Unruh Act is one. After all, if there was anything actually wrong with the ad, it was the advertiser who produced it who imbued it with its wrongful quality, not Facebook. And the decision to serve it or not is an editorially-protected moderation decision, which Facebook also should have been entitled to make without liability, per Section 230.

In sum, this California appeals court decision stands to make an enormous mess of at least online businesses, if not every media business, and not even just those who take advertising, because simply weakening Section 230 and the First Amendment itself will lead to its own dire consequences. And so the Copia Institute filed this amicus letter supporting Facebook’s petition for further review by the California Supreme Court in order to clean up this looming mess.

Filed Under: ad targeting, advertising, discrimination, liability, samantha liapes, section 230, unruh act
Companies: facebook

California Court: Passwords Are Communications, Protected By The Stored Communications Act

Legal Issues

from the only-so-far-you-can-take-a-subpoena dept

The Stored Communications Act — enacted in 1986 — is not only outdated, it’s also pretty weird. An amendment to the ECPA (Electronic Communications Privacy Act), the SCA added and subtracted privacy from communications.

It’s the subtractions that are bothersome. Law enforcement wasn’t too happy a lot of electronic communications were now subject to warrant requirements. They much preferred the abundant use/misuse of subpoenas to force third-parties into handing over stuff they didn’t have the probable cause to demand directly from criminal suspects.

Private parties — especially those engaged in civil litigation — also preferred to see fewer communications protected by the ECPA. So, this law — which declared every unopened email more than 180 days old free game — was welcomed by plenty of people who didn’t have the general public’s best interests in mind.

The government tends to make the most use of the ECPA and SCA’s privacy protection limitations, using the law and legal interpretations to access communications most people logically assumed the government would need warrants to obtain.

But the SCA also factors into civil litigation. In some cases, the arguments revolve around who exactly is protected by the law when it comes to unexpected intrusion by private parties. In this case — one highlighted by FourthAmendment.com (even as the site owner notes it’s not really a Fourth Amendment case) — it involves international litigation involving US service providers. The case directly deals with the Stored Communications Act and what it does or does not protect.

This lawsuit was brought by Path, an Arizona corporation, and its subsidiary, Tempest. Central to the litigation is Canadian citizen Curtis Gervais, who apparently was hired as an independent contractor by Tempest, which promoted him to the position of CEO in February 2022. A few months later, Gervais allegedly hacked into a competitor’s (Game Server Kings [“GSK”]) computers, leading to Tempest demoting (lol) Gervais to COO (Chief Operating Officer).

This demotion apparently didn’t sit well with Gervais, who allegedly began sharing confidential Tempest information with GSK, utilizing communications platform Discord to hand over this information to GSK employees.

So, it’s three American companies and one Canadian individual wrapped up in a dispute over ex parte demands to disclose information to the plaintiffs (Path/Tempest). Discord challenged the subpoenas, which asked for — among other things — any passwords used by Gervais to log into its services.

That’s where it gets interesting. Very few courts have considered what’s explicitly covered by the SCA and/or what can be obtained with subpoenas issued under this authority.

As is implied by both laws in play here (Electronic Communications Protection Act, Stored Communications Act), the protections (or lack thereof) apply to communications. Path argued that its subpoenas did not exceed the grasp of these laws, despite demanding Discord hand over Gervais’ passwords. According to the plaintiffs, passwords aren’t communications.

But that’s a very reductive view of passwords, something Discord pointed out in its challenge of the subpoenas:

Applicants argue passwords are not afforded protection under the SCA because passwords should not be considered “content.” Discord argues passwords are implicitly included within the SCA’s prohibitions because passwords implicate communications. In other words, Discord argues that passwords are “content “ under the SCA because they are “information concerning the substance, purport, or meaning” of a communication.

The court [PDF] says Discord is correct. But only after a lot of discussion because, as the court notes, this is an issue of “first impression.” It has never been asked to make this determination prior to this unique set of circumstances. But, despite the lack of precedent, the court still delivers a ruling that sets a baseline for future cases involving SCA subpoenas.

It begins by saying that even if the language of the SCA doesn’t specifically include passwords in its definition of “content,” it’s clear Congress meant to add protections to electronic communications with this amendment, rather than lower barriers for access.

The legislative history agrees with a broad interpretation of “content.” Congress explained that the purpose of enacting the SCA was to protect individuals on the shortcomings of the Fourth Amendment. Specifically, Congress enacted the SCA due to the “tremendous advances in telecommunications and computer technologies” with the “comparable technological advances in surveillance devices and techniques.” The SCA was further meant to help “Americans [who] have lost the ability to lock away a great deal of personal and business information.”

With this analysis of the scope of the term “content” under the SCA in mind, the Court now turns to determine if passwords are afforded protection under the SCA under that understanding of the definition of the term “content.” Passwords are undoubtedly a form of “information.” And passwords broadly “relate to” (or are “concerning”) the “substance, purport, or meaning of [a]
communication” even if passwords are not themselves the content of a communication. Passwords further relate to a person’s intended message to another; while a password is not the content of the intended message, a password controls a user’s access to the content or services that require the user to prove their identity. As a matter of technological access to an electronic message, a password thus “relates to” the intended message because without a password, the author cannot access their account to draft and send the message (and the user cannot access their account to receive and read the message).

When a person uses a password to access their account to draft and send a message, that author inherently communicates to the recipient at least one piece of information that is essential to complete the communication process: namely, that the author has completed the process of authentication. The password is information or knowledge which is intended to convey a person’s claim of identity not just to the messaging system but also implicitly to the recipient. As such, within the context of electronic communication systems, passwords are a critical element because they convey an “essential part” of the communication with respect to access and security protocols.

The dispute at issue here demonstrates the inherency of communicating about passwords when using a messaging platform such as Discord: when the user of the “Archetype” sent messages demanding ransom for the stolen source code, those messages conveyed to the recipients that the author is or was an authentic or authorized user of the “Archetype” account who used and had access to the password for that account. That password for that account thus is information concerning that communication, even if the password is not itself written out in the content directly.

In addition to all of that, there’s the undeniable fact that if you’re able to obtain login info (including passwords) with a subpoena, it doesn’t matter if courts limit the reach of demands for communications. If you have the keys to the accounts, you have full access to any stored communications, whether or not this access has been explicitly approved by a court.

With this password in hand, a litigant (or their ediscovery consultants) would have unfettered access to all communications within the account holder’s electronic storage, without regard to relevance, privilege, or other appropriate bounds of permissible discovery. In other words, litigants could circumvent the very purpose of the SCA by simply requesting that a service provider disclose the password for a user account, ultimately vitiating the protections of the SCA.

No court would allow the government to claim this is acceptable under the SCA and/or the Constitution. And no court should allow it just because it’s litigation involving only private parties. This particular demand cannot be honored without violating the law. And the companies behind the subpoenas know this because they obviously have zero interest in obtaining nothing more than Gervais’ login info.

The only conceivable use for the passwords here is for Applicants to access the requested accounts (such as “Archetype”) and view the contents of all electronically stored communications in those requested accounts.

That’s clearly the litigants’ intent. And it doesn’t mesh with the legislative intent, which was to create a few new protections for then-newfangled electronic communications. This particular demand is rejected. The subpoenas are still alive, but they’re no longer intact. If the suing entities want access to the defendant’s communications, they’ll have to do it the old-fashioned way: by making discovery requests that remain on the right side of the law.

Filed Under: california, communications, curtis gervais, ecpa, passwords, sca, stored communications act
Companies: discord, path, tempest

Elon Says Copyright/AI Lawsuits Don’t Matter Because ‘Digital God’ Will Arrive Before They’re Decided

Copyright

from the that's-not-how-any-of-this-works dept

So, we already wrote about the biggest headline grabbing moment from Elon Musk’s Dealbook interview with Andrew Ross Sorkin yesterday, but there was another crazy, Techdirt-relevant one involving copyright and AI. As we’ve explained over and over again, copyright is the wrong tool to use to regulate AI, and using it will lead to bad outcomes.

But, absolutely nothing in this bit of the interview made any sense at all (from either side):

It starts out with a drop dead ignorantly wrong question from Aaron Ross Sorkin, who seems wholly unprepared for this:

ARS: So, one of the things about training on data, has been this idea that you’re not going to train on… or these things are not being trained on people’s copyrighted information. Historically. That’s been the concept.

Elon: Yeah that’s a huge lie.

ARS: Say that again.

Elon: These AIs are all trained on copyrighted data. Obviously.

ARS: So you think it’s a lie when OpenAI says that… none of these guy say that they’re training on copyrighted data.

Elon: Yeah, that’s a lie.

ARS: It’s a lie. Straight up?

Elon: Straight up lie.

So… there’s a lie in there, but it’s Andrew Ross Sorkin saying that any AI company claims that it doesn’t train on copyright-covered data. Everyone admits that. They say that doing so is fair use (because it is). So the entire premise of this discussion is wrong. Here’s OpenAI admitting in court that, of course, it trains on copyright covered material. It’s just that it believes fair use allows that (because it does).

So, in one sense here, Elon is right to push back on Sorkin’s claim. But Musk is misleading, because he appears to buy into the false premise of Sorkin’s question that AI companies say they’re not training on copyright-protected data. If Musk had any idea what he was doing he would have told Sorkin his premise was wrong, and that no companies deny training on such material.

From there, Sorkin goes on an even more confused discussion, claiming that while snippets of articles on ExTwitter are fair use, because, combined, people might post a full article, it might not be any more… but that’s… not how any of this works anyway. Someone give him a Copyright 101 lesson, because this is embarrassing.

Either way, Musk then made the whole thing… um… fucking weird. Because as Sorkin kept trying to press Musk on the copyright lawsuits, Musk did this:

Musk: I don’t know, except to say that by the time these lawsuits are decided we’ll have Digital God. So, you can ask Digital God at that point. Um. These lawsuits won’t be decided on a timeframe that’s relevant.

If someone you knew started saying stuff like that, you’d have them checked out.

Whether or not you believe that AGI (Artificial General Intelligence) is on the way or not, or that it might create “Digital God,” the idea that this is coming before these lawsuits are decided is… um… not realistic. But, even if we do somehow reach AGI within the next few years as these lawsuits play out, the idea that such an AGI would obsolete the courts and/or copyright law is similarly wishful thinking.

Hell, we’ve argued for years that the internet itself has already obsoleted copyright laws, but they’re still sticking around and getting dumber all the time. I’d love for it to be true that technology further obsoletes copyright law and moves things to a better overall system… but it’s not going to happen because “Digital God.”

Of course, perhaps if Elon truly thinks Digital God is coming in the next few years, it explains why he doesn’t care about advertisers on ExTwitter any more.

Filed Under: andrew ross sorkin, copyright, digital god, elon musk, fair use
Companies: openai, twitter, x, xai

Daily Deal: The Complete Photoshop Master Class Bundle

Deals

from the good-deals-on-cool-stuff dept

The Complete Photoshop Master Class Bundle has 6 courses designed to help you become a Photoshop expert. You’ll start with and introductory course and move on to learning about light effects then on to building 7 different web sites. It’s on sale for $30.

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.

Filed Under: daily deal

Elon, After Personally Driving Away Advertisers, Tells Them To Go Fuck Themselves (Repeatedly), And Says ‘Earth’ Will ‘Judge’ Them For Killing ExTwitter

Say That Again

from the that's-not-how-any-of-this-works dept

I’m not sure Elon quite understands the concept of “damage control.” Advertisers are bailing, and the rate increases every time he says something stupid or endorses this or that conspiracy theory. It’s costing the company tons of money, but he still can’t admit that he’s the problem. So, instead, he’s blaming everyone else. And sometimes suing organizations for daring to point out what a mess he’s made.

So I guess it should be no surprise that when Elon appeared at the Dealbook conference, he struck his usual defiant tone, which doesn’t seem likely to help Linda Yaccarino win back any advertisers.

“If somebody’s gonna try to blackmail me with advertising? Blackmail me with money? Go f—yourself.” He added, “Don’t advertise.”

He also implied that fans of his, and of X, would boycott those advertisers in kind. He specifically took aim at Disney.

“The whole world will know that those advertisers killed the company and we will document it in great detail,” Musk threatened.

The full video of the moment is way more damning.

It starts off with host Andrew Ross Sorkin talking about how it looks like Elon is doing an apology tour, and mentioning that he spoke with Disney boss Bob Iger earlier in the day, and Elon, looking unwell, says:

Elon: I hope they stop.

ARS: [pauses… confused…] You… hope…?

Elon: Don’t advertise.

ARS: [more confused] You don’t want them to advertise?

Elon: No!

ARS: What do you mean?

Elon: If somebody’s gonna try to blackmail me with advertising? Blackmail me with money? Go fuck yourself.

ARS: [perplexed] But…

Elon: Go. Fuck. Yourself. Is that clear? [Smug asshole look that isn’t nearly as smug as he thinks it is]. I hope it is. [Waves] Hey Bob, if you’re in the audience.

ARS: Well, let me ask you then…

Elon: That’s how I feel.

ARS: [Mouth open]

Elon: Don’t advertise.

ARS: [trying to bring the conversation around]: How do you think then about the economics of X, if part of the underlying model is… and maybe it needs to shift, maybe it needs to shift away from advertising… if you believe that this is the one part of your business where you will be beholden… to… uh… have this view?

Elon: G. F. Y. [Nods the confident nod of someone deeply wrong about something]

ARS: I understand that, but there’s a reality too, right? I mean Linda Yaccarino’s right here and she’s gotta sell advertising.

Elon: Yes, no, no, right. Yes. No. Absolutely so. No, no, totally. So, no, no, so. Actually what this advertising boycott is going to do, it’s going to kill the company.

ARS: [realizing that Elon seems to be encouraging a boycott that will, as he just said, kill the company] And you think that the…

Elon: But, the whole world will know that the advertisers killed the company. And we will document it in great detail.

ARS: But those advertisers are going to say “we didn’t kill the company…”

Elon: Oh yeah? Tell that to Earth!

ARS: [momentarily stunned] But… they’re going to say, Elon, that YOU killed the company, because you said these things and they were inappropriate things, and they didn’t feel comfortable on the platform. That’s what they’re going to say.

Elon: And let’s see how Earth responds to that. [Smug asshole look again]

ARS: So, let me… okay… this goes back to…

Elon: We’ll both make our cases, and we’ll see what the outcome is.

ARS: What are the economics of that for you. I mean, you have enormous resources, so you can keep this company going for a very long time. Would you keep it going for a long time if there was no advertising?

Elon: I mean, if the company fails, because of an advertising boycott, it will fail because of an advertising boycott, and that’s what will have bankrupted the company, and that’s what everyone on earth will know.

ARS: But you recognize, that some of those people are going to say that they didn’t feel comfortable on the platform. And I just wonder and ask you to think about that for a second…

Elon: Tell it to the judge.

ARS: But the judge is gonna be…

Elon: The judge is the public.

So much nonsense in so little time.

First off, advertisers choosing not to advertise on your platforms is not “blackmail.” It’s actually their free speech right of association not to associate with you and your nonsense.

Second, the advertisers your CEO is desperately pleading with to come back (and maybe spend more than $10) aren’t going to find you telling them to “go fuck yourself,” an enticing deal.

Third, if you really are so cavalier about it, why are you suing Media Matters for its report that you claim convinced many advertisers to leave?

Fourth, are you actually admitting that ExTwitter is being “killed” by advertisers leaving the platform? Because for months now, you and Yaccarino have claimed you’re on the verge of profitability. But now you seem to be saying that the company has been “killed” because advertisers exercising their own free speech rights want nothing to do with you.

Fifth, what kind of entitled, out-of-touch brat thinks that advertisers choosing not to give you money is some sort of statement on their culpability? No advertiser owes you money, you entitled billionaire. This is how lots of businesses fail. They don’t make enough revenue. Actively driving away the source of nearly all of your revenue is a choice that you, Elon, made, not something we blame on the advertisers. When newspapers go under because they couldn’t get enough ad sales, do we blame the advertisers? This all seems like evidence of someone who has never faced an ounce of hardship in his life and the first time he does insists it must be everyone else’s fault rather than his own failings.

Sixth, I’m sure that threatening to send your mob of drooling, sheep-like fanboys after advertisers is going to convince them to come back. Masterful gambit.

Seventh, how fucking high on your own supply must you be to think that “earth” will “judge” advertisers for “killing exTwitter” when the only reason they’re leaving is because of stupid, fucked up shit that you, yourself are doing?

Anyway, it would be nice if Elon could stop doing stupid shit for just like one day. It would let me move on to some of the many other stories I’m trying to write about.

Filed Under: advertisers, blackmail, dealbook, elon musk
Companies: disney, twitter, x

The Wall Street Journal Is Very Upset By Efforts To Stop Racism In Broadband Deployment

Broadband

from the well-coordinated,-artificial-outrage dept

The 2021 infrastructure bill set aside an historic $42.5 billion for broadband deployment. It also tasked the FCC with creating rules aimed at ending decades of race and class based-discrimination in broadband deployment, which have been well documented by The Markup, the National Digital Inclusion Alliance (NDIA), and others. The goal was to try and keep history from repeating itself.

Before the Thanksgiving holiday the FCC finally released its rules. They’re a mixed bag. It’s historic that the FCC acknowledges decades of discrimination in broadband (regardless of overt, provable intent). But the rules do absolutely nothing about ISPs (like AT&T) with a documented history of discrimination, the complaint process isn’t public and transparent, and consistent enforcement remains an open question.

But of course as with any effort to hold telecom giants accountable for anything, it wasn’t long before the telecom lobby had loyal right wing news outlets chirping in coordinated unison about how the FCC’s plan was some kind of dystopian government cabal.

With the help of FCC Commissioner Brendan Carr, Fox News immediately published false stories claiming the plan was a dastardly, illegal plot by the Biden administration to take over the Internet (despite the fact the rules were mandated by a bipartisan majority of Congress).

This coordination between telecom giants and right wing “news” outlets to spread misinformation is any everyday affair (see the industry smear campaign against Gigi Sohn’s FCC nomination). If there’s some policy decision Comcast and AT&T are fighting in DC, it takes no time at all for their anti-consumer, anti-reform policy positions to be parroted in careful coordination across the entirety of right wing media, including Breitbart, Fox News, Sinclair broadcasting, Newsmax, OANN, The Daily Caller, etc.

For example The Wall Street Journal editorial department also published an op-ed claiming that the FCC’s acknowledgement of discrimination was extremist, and would force “broadband providers to prioritize identity politics.” The story contains no limit of theoretically terrible (and false) scenarios, including claims that the FCC will soon start punishing ISPs if their marketing pamphlets aren’t inclusive enough:

“The rule would give the FCC power to micromanage the industry. Marketing materials that feature too many white people could be ruled discriminatory. Companies could be forced to scrap credit checks that cause more minorities to be rejected for smartphone leasing plans.”

Again, these claims are… absolute bullshit. The rules are the government’s way of simply acknowledging what the data has clearly shown for a long time: that ISPs routinely fail to invest in poor and minority communities despite billions of subsidies, tax breaks and regulatory favors designed to fund exactly that.

The FCC’s new rules create a new complaint process and basically acknowledge that discrimination played a role in broadband deployment (much as it did for highway and electricity deployment). It’s not really a debate, no matter how much industry and its marionettes would like to pretend otherwise.

That said, I’ll be genuinely surprised if the FCC ever (and I genuinely mean ever) takes any meaningful action against big broadband companies that discriminate. The agency simply has absolutely no track record of the kind of “overreach” the GOP and telecoms routinely whine about. In fact, for the better part of several decades they’ve been somewhat useless on consumer protection of any substance.

This manufactured, coordinated right wing media hysteria is the status quo every single time anybody proposes any rules (however feckless) for the telecom industry to follow. It happened with very basic privacy rules. It happened with net neutrality. And it’s happening again here.

ANY effort to hold regional telecom monopolies accountable for anti-competitive or otherwise shitty (or racist) behavior is “government overreach.” And the underlying implication is ALWAYS that if government is removed from the equation, the heavily monopolized, uncompetitive broadband industry will somehow miraculously thrive, driving no limit of amazing new innovation and consumer savings to market.

We’ve lobotomized our telecom regulators for the better part of a generation, yet that miraculous outcome somehow never arrives. And it never arrives because U.S. telecom isn’t a “free market,” it’s a bunch of regional monopolies (tied to our domestic surveillance systems) that have lobbied the majority of Congress and the FCC into apathy on consumer protection, antitrust reform, and competition policy.

But when you’ve got a sizeable chunk of the U.S. press basically parroting whatever Comcast and AT&T policy guys tell them to, it has a corrosive impact not only on the discourse, but any effort to do even the bare minimum when it comes to corporate oversight. This corporate propaganda masquerading as news and independent thought is, as they say, one of the major reasons why we can’t have nice things.

Filed Under: broadband deployment, digital discrimination, digital divide, fcc, high speed internet, minority communities, racism, telecom
Companies: wsj

Unity Becomes Marketing Punching Bag For Other Game Engine

Say That Again

from the shade dept

Unity has had a tough time of it recently. After the company decided to put in place a major pricing scheme shift for users of its game engine back in September, the company has since experienced all kinds of fallout over the changes, ousted its CEO, and has generally been vilified for not bothering to listen to its customers. Through it all, some developers previously using Unity have pledged to leave the platform in the present or future, leaving an opening for other game engines to ply their wares to these gamemakers.

Now, to be clear, a 2D game engine like GameMaker is probably not a full competitor to Unity, though 2D games are made using Unity as well. To that end, it’s notable that GameMaker is marketing its own pricing scheme to developers with some thinly veiled shade tossed at Unity. First, the pricing methodology, which stands in stark contrast to Unity’s.

If you’re making a game with GameMaker for release on consoles, you have to pay for an ongoing $80-per-month Enterprise package. If you’re trying to sell a game on other platforms (PC, mobile, browser), there’s a one-time $100 fee. If you’re just messing about or making something that’s not for sale, it’s free. And GameMaker’s asset bundles are free now, too. And some existing subscribers might now get a free commercial license. There is, notably, no mention of “run-time” or per-install fees.

That all reads as fairly reasonable from my perch. The big difference is the one at the end: the lack of per-user or per-install ongoing fees. The challenge with those in Unity’s plan was that it essentially punished publishers for having a successful game, particularly for games that had either very small dollar purchase prices or, worse, those that were provided for free with in-game purchases. Those could actually make a game being successful a money-losing proposition.

And the way GameMaker is marketing all of this vaguely calls this all out.

YoYo Games, creator of GameMaker, describes the moves as a way to “Say ‘Thank you,'” as well as a response to “other platforms making awkward moves with their pricing and terms.” Game Developer notes that this is the second pricing switch since Opera acquired the studio, after an initial move to make tinkering with the engine free, up until you publish.

For a long time, Unity was a darling in the games industry due to its previous pricing structure and the power of the engine itself. But I guess that if a hero lives long enough, they end up becoming a villain one way or the other.

Filed Under: video game engines, video games
Companies: gamemaker, unity

Court To Officers: You Can’t Charge Someone With Resisting Arrest When You Broke The Law With A Warrantless Entry

Legal Issues

from the is-that-my-petard?-put-me-up-on-it! dept

There are few things I enjoy more than watching cocksure cops trip over their own hubris.

And it happens so often. Cops believe that since they are (affirmatively) law enforcement officers and the people they target are (only allegedly) criminals, they are firmly in the right, no matter what they do or what rights they violate. For some reason, they tend to believe their powers are divinely granted, rather than subject to consent of the policed.

So, they fuck up. A lot. But only rarely do they get called out for it. It always takes a lawsuit or a challenge raised by the person accused of crimes. In a majority of cases, they simply get away with it. Not here. Not in this case, brought to us (but without a link to the opinion, what even the fuck John Wesley Hall) by FourthAmendment.com. In this case, a bog standard charge for lack of immediate compliance (resisting arrest) gets tossed out because the cops broke the law first.

It’s a short decision [PDF], but it’s more than enough to make it clear that when the cops do the lawbreaking first, they’re not allowed to arrest someone for resisting an unlawful seizure. Here’s how things went en route to Daniel Peacock being charged with resisting arrest, as recounted by the North Carolina Court of Appeals.

Deputy Jake Staggs testified that on 29 January 2020, his sergeant directed him to assist with executing a search warrant for stolen property at a home in Henderson County. Staggs and a group of six-to-eight officers arrived at the home around midday, knocked on the door and announced their presence, heard no response, and entered. The officers then forced entry into a locked bedroom where Defendant was lying in bed with a sheet over his head and body.

Defendant did not comply with orders to roll onto his stomach and place his hands behind his back and instead remained in place on the bed with his hands covering his face. Staggs pulled Defendant onto the floor and commanded him to get on his stomach. Defendant remained tense and failed to comply with instructions, then reached under the bed. Staggs struck Defendant in the head to “cause him pain compliance,” and was able to get Defendant’s hands behind his back. Staggs placed Defendant in handcuffs and cited him at 1:14 pm for resisting a public officer.

Pay attention to the time stamp in that last sentence. It’s important.

Also, take note of some other things that aren’t ultimately dispositive, but are worth pointing out. First, there’s the fact that the testifying deputy had no idea how many officers were actually involved in this search. That seems like the sort of thing that should have been noted in the post-raid paperwork.

Second, there’s this ridiculous phrase, which mangles English in a way only cops are capable of doing: “cause him pain compliance.” The strike was meant to “cause pain.” The pain may have been useful in securing compliance. But you cannot “cause pain compliance.” That’s pure copspeak, and it shouldn’t go unnoted.

Moving on. Here’s where the charge of resisting arrest becomes a problem. For someone to resist arrest, they must be subject to a lawful arrest. At the point this all happened, Peacock was doing nothing more than hiding under the covers while surrounded by trespassers, not law enforcement officers.

Staggs testified that he did not have a search warrant when the officers entered the home, and that he never saw a search warrant for the home.

Whoops. That’s a huge, unforced error. Sure, Deputy Staggs claimed his supervisor “directed” him to assist in warrant service, but if there’s no warrant then there’s no warrant service. Apparently, Deputy Staggs saw the warrant for the first time while testifying in criminal court. And that didn’t go well for the deputy.

[DEFENDANT:] And this was the search warrant that you were referring to that you were executing?
[STAGGS:] Correct
. . .
[DEFENDANT:] And what is the date and time on that?
[STAGGS:] 1/29 of 2020 at 2:15 p.m. by Susan Hoots (phonetic).
[DEFENDANT:] That’s more than one hour after you gave Mr. Peacock his citation; isn’t that right?
[STAGGS:] That’s correct according to that.

Yeah, that’s a problem. If officers are in a house without a warrant — and without a plausible law enforcement excuse to be there (exigent circumstances, community caretaking, etc.) — then they’re not really law enforcement officers. They’re just people trespassing on someone else’s property. And, in that capacity, they’re legally incapable of performing law enforcement duties.

So, when Peacock resisted, he wasn’t resisting a lawful order or even the commands of a law enforcement officer with the law on his side. He was simply ignoring someone who had illegally entered his home.

Here, the evidence viewed in the light most favorable to the State shows the following: Officers arrived at the home around midday on 29 January 2020 without a warrant. At that time, no exigent circumstances justified their entry. The officers knocked on the door, announced their presence, and heard no response. The officers nevertheless entered the home, where they encountered Defendant. When Defendant did not comply with orders, the officers placed him in handcuffs and issued a citation for resisting a public officer at 1:14 pm. A search warrant authorizing the officers’ presence inside the home was not issued until 2:15 pm, one hour after the officers encountered Defendant.

You can’t resist an arrest that isn’t legally an arrest. The trial court blew this one when it decided otherwise. The state Appeals Court rights that wrong.

[T]he State failed to prove that the officers whom Defendant resisted were discharging or attempting to discharge an official duty at the time they encountered Defendant…

That’s a legal requirement when bringing resisting arrest charges. Without this, officers have nothing. And, at the end of this decision, that’s exactly what they’re left with: a dismissal of charges and a vacated sentence.

The Constitution only asks officers to do the job right. Haste makes waste. And assuming you’ll just get away with it is an assumption too far, at least in this case. The court isn’t telling law enforcement officers things they don’t already know. It’s just making sure they aren’t able to benefit from breaking the rules.

Filed Under: 4th amendment, jake staggs, north carolina, north carolina court of appeals, resisting arrest, warrantless entry

Let’s Not Flip Sides On IP Maximalism Because Of AI

Copyright

from the copyright-is-the-wrong-tool dept

Copyright policy is a sticky tricky thing, and there are battles that have been fought for decades among public and corporate interests. Typically, it’s the corporate interests that win — especially the content industry. We’ve seen power, and copyrights, collect among a small group of content companies because of this. But there is one significant win that the public interest has been able to defend all these years: Fair Use.

Fair use’s importance has only grown over the years. Put simply, fair use allows people limited use of copyrighted material without permission. Fair use’s foundations are in commentary, criticism, and parody. However, fair use has arguably filled in important gaps to allow us to basically exist on social media. That’s because there are open questions on what is and isn’t copyright infringement, and things as simple as retweeting or linking could theoretically get us in trouble. Fair use also allows a lot of art to exist, because a lot of art critiques or comments on older art. On the flip side, when fair use was ruled to not cover music sampling it basically killed a lot of creative sampling in hip hop music. Now popular sample-based music is relatively tame and tends to use the same library of samples.

Fair use (probably) also protects the creator industry. Many people make a living streaming video games or making content around playing video games. All of that could violate copyright laws. We don’t know the extent of risk here, because it hasn’t been fully tested, but we do know that videogame makers have claimed videogame streaming content as copyrighted material. We also know that in Japan, which doesn’t have fair use, that a streamer got two years in jail for posting Let’s Play videos. A lot of creators also make “react” content, which also relies on fair use protection.

Blowing up Fair Use

Considering the importance of fair use, and the historically bad behavior of the content industry towards ordinary people, it’s surprising that a lot of public interest advocates want to blow it up to hurt AI companies. This is unfortunate, but not particularly surprising. Content industry lobbying has inflated copyright protections into a pretty big sledgehammer, and when you really want to smash something you often look for a sledgehammer. For example, copyright and right of publicity (a somewhat related state-level IP regime) were the first tools people turned to to protect victims when revenge porn first became a big problem.

Similarly, some public interest advocates are turning to copyright to stop AI from being trained on content without permission. However, that use is almost certainly a fair use (if it’s copyright infringement at all) and that’s a good thing. The ability of people to use computers to analyze content without permission is extremely useful, and it would be bad to weaken or destroy fair use just to stop companies from doing that in a socially problematic way. The best way to stop bad things is with policy purposefully made to address the whole problem. And these uses of copyright law often plays into the hands of powerful interests — the copyright industry would love the chance to turn the public interest advocacy community against itself in order to kill fair use.

I’m not saying that there aren’t issues with AI that need to be addressed, especially worker exploitation. AI art generators can be especially infuriating for artists: they use a lot while giving back little. In fact, these generators are arguably being built to replace artists rather than to provide artists with new tools. It can be attractive to throw anything in the way to slow it down. But copyright, especially copyright maximalism, has done a terrible job of preventing artist exploitation.

Porting “on a computer” to copyright

One of the biggest public interest fights in patent law has been against “on a computer” software patents that clogged up the system and led to a number of patent infringement suits against small businesses for silly claimed inventions. The basics of the problem is this: it was initially allowed to claim an invention in doing something that was already known, but on a computer. These on a computer patents have been greatly restricted through Supreme Court rulings (which special interests would like to overturn). However, the bad effects of software patents still exist today, as do patent trolls seeking to exploit them.

This current fight over copyright in training data reminds of this same problem. For example, if a writer wanted to study romance novels to find out what is popular it would be perfectly acceptable under copyright policy for them to read and analyze a lot of popular romance novels and to use that analysis to take the most successful parts of those novels to create a new novel. It is also perfectly acceptable under copyright law for an artist to study a particular artist and replicate that artists style in their own works. But using an AI to do that analysis, doing it “on a computer,” is now suspect.

This is short sighted for a number of reasons, but one I’d like to highlight is how this shrinking of fair use is difficult to contain. We are talking about an area in which the question of whether loading files into RAM is “copying” under copyright law (and therefore needs permission or is a violation) is an actual policy debate that public interest advocates have to fight. If using content as training data becomes a copyright violation, what’s the limiting principle? What kinds of computer analysis would no longer be protected under fair use?

I should also point out that IP maximalization is the easiest way to build oligopolies. Big companies will be able to figure out how to navigate the maze of rights necessary to build a model, and existing models will likely be grandfathered in (with a few lawsuits to get through). However, it will be impossible for any new company or new open source model to be created. Dealing with rights at scale is a problem so significant that even the rightsholder industry has trouble tracking them. And information about rights has been withheld to leverage better deals due to the risk (and high costs) of accidentally infringing someone’s rights.

Matthew Lane is a public interest advocate in DC focusing on tech and IP policy. This post was originally published to his Substack.

Filed Under: ai, copyright, copyright maximalism, fair use

Musk’s Faulty Vision Of ‘Free Speech’ Is Driving Speech Off ExTwitter

Failures

from the that's-not-how-free-speech-works dept

I mean, it’s not like we didn’t warn Elon Musk. Free speech is not about creating a single private space where everyone gets to speak, because that doesn’t support free speech. It enables the worst of society to browbeat, harass, and abuse anyone they dislike, creating a total garbage dump that drives people away and silences them.

That’s not free speech. It limits free speech.

In my mind, there are two key aspects to free speech: underlying protocols that are not privately controlled that allow people to speak (but which enable others to build curation/moderation tools on top of them) and a near total limit on the government’s ability to suppress speech.

ExTwitter had a chance to be a leader in this, back when Jack Dorsey endorsed the protocol approach and helped get the Bluesky project off the ground. But Elon killed that also. And now his confusion over all of this is driving speech off of ExTwitter, rather than enabling more of it.

We’ve already talked about how advertisers are bailing on ExTwitter, and this accelerates every time Elon says something hateful, bigoted, or ignorant. Yesterday he added to this by not just tweeting (and later deleting) a Pizzagate meme (that also misunderstands the fact that Michael Scott of The Office is the joke), but one based on an outright fabricated NY Post headline that never existed, falsely claiming that the person who debunked Pizzagate (which was actually debunked by many, many people because it was a delusional nonsense conspiracy theory) was just sentenced to jail for child sexual abuse material. Except, none of that was true.

And people wonder why advertisers are bailing.

But it’s not just the advertisers. We’ve highlighted in the past how traffic appears to be significantly down as well, and now it’s being reported that many of the companies that have pulled their advertisements have just stopped using the platform altogether.

… people familiar with the social media strategies of Paramount and WBD confirmed under the condition of anonymity that it’s no coincidence: the companies have made the active decision to stop posting under certain handles on X due to concerns, including brand safety.

The blackout on X extends beyond these companies’ corporate accounts, in some cases. For instance, the most high profile accounts affiliated with Disney have gone dark on X, such as @StarWars, @Pixar, and @MarvelStudios, which were previously posting multiple times a day on the platform to their millions of followers. Instead, these brands have switched over to the Meta-owned rival Threads, where they have started actively posting.

For instance, when“The Late Show With Stephen Colbert” on Monday shared the news that host Stephen Colbert would be off the air this week due to appendicitis, the program did so on Threads. Prior to Musk’s backing of an antisemitic post, Colbert’s show, however, was primarily active on X, regularly posting videos and other content. Now, the inverse is true.

The article lists many other companies that aren’t just pulling ads but stopping tweeting altogether. And that’s not getting into the many individuals, including some big names, who have gone silent as well.

What kind of “free speech” is it when you drive everyone away?

Filed Under: advertisers, bigotry, conspiracy theories, elon musk, free speech, pizzagate, tweeting
Companies: disney, twitter, warner bros. discovery, x