Funniest/Most Insightful Comments Of The Week At Techdirt

from the speak-softly dept

This week, our first place winner on the insightful side is an anonymous response to Denuvo's claim that its DRM has no performance impact on users' machines whatsoever:

It takes up 500MB, which will use drive I/O when it loads. That's a performance impact. It uses CPU cycles when it runs. That's a performance impact.

If they wanted to argue that there was a negligible, unnoticeable performance impact, that's one thing. But to deny any impact at all? That's a flat-out lie.

In second place, it's Samuel Abram with a note on our post about the "map of the internet" visualization:

Of course, the credit should be given to Randall Munroe who–in his sublime XKCD webcomic–created the idea of web sites' traffic as literal land masses.

I'm glad someone else took the mantle from him.

For editor's choice on the insightful side, we've got a pair of comments about Ohio's bizarre lawsuit against Google. First, it's ladyattis with a summary:

It's all about control

Seriously, my subject line says it all. They're not about their principles or their ideology, it's all about control. If they can't "trust the market" to protect their peculiar set of values then they'll burn the whole thing down out of spite. It borders on abusive behavior that you see in some dysfunctional relationships (particularly from the abuser in the relationship). I don't think legal analyses will help here, I think these folks need a shrink to work over their neuroses.

Next, it's sorrykb picking up on a comparison we made in the post, noting how it would be nonsense to claim encouraging people to eat more vegetables means you want to put everyone on an all-plant diet all the time:

Of course it’s nonsense. It’s also exactly what the GOP did earlier this year.

Nonsense is their brand.

Over on the funny side, our first place winner is Bobvious with an update to a classic quote:

"it is difficult for an influencer to understand something when their raison d'etre depends upon not understanding it" - Upton Sinclair (Millennial Edition)

In second place, it's Yakko Warner responding to the copyright lawsuit against Roblox with an old and fairly timeless lyric:

"It doesn't matter if you're a grandma or a seven-year-old girl,
They'll treat you like the evil hard-bitten criminal scum you are."

--Weird Al Yankovic, Don't Download This Song

For editor's choice on the funny side, we start out with one more comment from that post, in which an anonymous commenter made another reference to an even earlier era of anti-piracy:

Still waiting for home taping to kill music already.

Finally, it's That One Guy, who reacted to a study suggesting misinformation takedowns can lead more people to believe false stories by hatching a plan:

Only one thing to do...

Time to make a series of videos pointing out how vaccines absolutely work and are a great way to cut down on avoidable death and suffering, eating healthy is a good thing along with exercise and you should always strive to verify what someone's telling you and maintain a healthy sense of skepticism. After this I'll find some way to get the videos taken down(slipping in a few seconds of copyrighted music or video should do the trick nicely) and I'll then use the fact that the videos were removed as evidence that what's in them is true.

That's all for this week, folks!

This Week In Techdirt History: June 6th - 12th

from the and-then-and-then-and-then dept

Five Years Ago

This week in 2016, there were lots of stories about questionable actions by the FBI, and amidst all that, the agency turned down our FOIA request to find out how much money they spent getting into Syed Farook's iPhone. A worrying appeals court ruling chipped away at privacy while Senator Jeff Sessions was seeking to blast a giant hole in the Fourth Amendment. We learned more about the NSA's handling of Ed Snowden's concerns prior to his leak, and took a look at how despite all the supposed damage, the agency was doing great. This was also the week that Gawker filed for bankruptcy.

Ten Years Ago

This week in 2011, the RIAA was arguing that changing copyright terms is unconstitutional, though only if they get shorter, while the Supreme Court agreed to hear the Golan case examining the opposite. YouTube added Creative Commons licensing options for videos while Russia's president proposed baking similar options right into copyright law. ICE declared victory in its domain seizure campaign while Homeland Security appeared to be stalling on related FOIA requests. Meanwhile, the ridiculous prosecution of whistleblower Thomas Drake was falling apart and by the end of the week, Drake took a plea bargain deal.

Fifteen Years Ago

This week in 2006, long before ICE's domain seizures, we wondered why the US government was getting involved in takedowns of foreign music sites. We also took a look at the negative impact of the DMCA on innovation, and the way that the music industry's efforts to shut down sites often served as free advertising via the Streisand Effect — and the same was true with the movie industry, as was soon demonstrated by the MPAA going after Isohunt. Meanwhile, the copyright industries were trying to sneak through a huge and insane change to the law around "incidental copies". Blizzard relented on its attempts to block third-party World Of Warcraft game guides, the story of how Canada's "Captain Copyright" propaganda mascot might himself be a copy continued to develop, and we were surprised when some British politicians appeared to have reasonable views on copyright.

Filed Under: history, look back

Oatly Sues PureOaty For Trademark And Trade Dress Infringement

from the milking-it dept

Maybe it's something about being in a beverage industry that makes people treat trademark law as though it were something it most definitely is not. For years, we've discussed the trademark problem that the exploding craft beer industry has faced. Oatly, the Swedish company that produces that well known non-dairy milk product, is most certainly not in the alcohol business, but they appear to be aping the most aggressive members of that unrelated industry in a recent lawsuit filed overseas against a very small competitor, which makes a product called PureOaty.

Oatly, the Swedish oat milk maker with a market value of $15bn, has taken legal action for trademark infringement against a Cambridgeshire-based family farm over its PureOaty drink. The Malmo-based group accuses Glebe Farm Foods, which specialises in gluten-free oats, of infringing trademarks including the Oatly brand name and pack design, and of “passing off” the beverage as Oatly, according to documents submitted to the court.

Now, most of Glebe Farm Foods' business has nothing to do with selling oat-based milk substitutes. Instead, the company makes most of its money selling gluten-free oat-stuffs to food producers. But it does sell PureOaty as a side product, rebranded under its current name in early 2020. Notably, the oat-based milk industry is expanding quickly, with plenty of startups getting into the business. In other words, this very much looks like an early-stage version of the craft beer industry.

With that in mind:

Lawyers for Oatly and its UK business claim that when Glebe Farm rebranded its Oat Drink product as PureOaty in 2020, “Glebe Farm’s intention was to bring Oatly’s products to mind and thereby to benefit from the huge power of attraction and reputation of Oatly’s branding”.

Oatly’s lawyers claim that the name PureOaty calls to mind Oatly, while the product’s blue packaging and image of a teacup also recall the Swedish brand.

Okay, let's take these two claims, the basis for the lawsuit, in order. The claim that PureOaty calls to mind Oatly is odd. Sure, both brand names include the word "oat", but that's descriptive of what the milk product is made of. The "Pure" is, frankly, doing a lot of work in differentiating the two brands. All that's really left is the "y" at the end of each brand name and if that's where the confusion claim rests, well, that isn't very convincing at all.

As for the argument that the trade dress is going to be confusing, well:

If those two products confuse you, you need help. The color scheme is different, as is the placement of the branding and all the verbiage on the packaging. The only real commonality is, as Oatly called out, the inclusion of a tea or coffee cup. And the fact is that both of these products are used as creamers. Including a tea or coffee cup isn't particularly distinctive for these oat-milk products.

But, as is always the case when it comes to trademark bullying, this is likely happening at least in part because Glebe Farm Foods is tiny compared with Oatly. That's why trademark bullying works. Whether it does in this case I suppose will come down to how hard and long Glebe Farm Foods wants to fight back.

Filed Under: oat milk, oatly, pureoaty, trademark
Companies: glebe farm foods, oatly

Will Congress' Big New Push On Antitrust Actually Solve Any Competition Issues?

from the probably-not dept

On Friday, as has been widely expected for a while, a bunch of House lawmakers led by David Cicilline introduced five new antitrust bills that would, if they become law, completely reshape how antitrust works in the US. At least for tech companies. Somewhat notably, many of the bills seem written specifically to target just one industry and to avoid having to deal with other industries. The text of the bills has been floating around all week as the Democrats who are pushing them hoped to find some Republican co-sponsors. And, based on Friday's press release, it appears they found at least one Republican to sponsor each bill (though only four Republicans in total, as they got Lance Gooden to agree to sponsor two of the bills).

Now, most of the bills strike me as extremely problematic -- and even me just saying so will lead people to claim I'm somehow in the tank for these companies. Nothing is further from the truth. I'm all for creative ideas on how to end the dominance of the largest companies and to increase competition. But I fear poorly thought out proposals will have massive unintended consequences that go way beyond punishing Facebook, Google and Amazon.

Each bill does something different, and there are some occasionally creative and interesting ideas in them, but it really seems like these bills are more designed to destroy the thriving tech industry out of spite, rather than to actually encourage competition. As noted above, I'm in agreement that it would be good if we got more competition in the tech industry, but these bills take a very backwards-looking view on how to do that, basically by punishing companies for building successful products, rather than looking for ways to enable more actual competition. I've written before on ways to actually break up the dominance of big tech players, mainly by getting rid of many of the existing rules that have allowed the big players to block and limit competition. But these bills don't do that. They take a much more punitive approach to successful companies, rather than an approach that enables more competition through innovation. That's disappointing.

To me, the one that seemed most interesting at a first glance was the ACCESS Act ("Augmenting Compatibility and Competition by Enabling Service Switching Act") by Rep. Mary Gay Scanlon. It basically requires "covered platforms" to maintain open APIs for interoperability and data portability. And, at a first pass, that is a good thing, and obviously quite consistent with my belief that we need to build a future that is based more on open protocols rather than silo platforms. Portability and interoperability are certainly a step in the right direction for that.

However, the way the bill actually is written suggests a real lack of futuristic technical thinking. It would lock in certain ideas that don't necessarily make any sense. Basically, all this bill would actually do is make sure that you could transfer your data out of an existing internet giant. The big internet companies already do this... and because of the way it's been implemented, it's almost entirely useless and doesn't help anyone. This bill wouldn't change that, unfortunately.

On top of that, this bill fails to deal with the very real and very tricky challenges regarding data portability and interoperability as it pertains to privacy. Instead, the bill just handwaves it away, basically saying "don't do bad stuff regarding privacy" with this data. That's... not going to work, and is more or less an admission that the drafters of the bill don't want to deal with the very significant challenges of crafting a data portability/interoperability setup that is also congruent with protecting privacy.

The real way to do this would be to separate out the data layer so that it's not controlled by the centralized companies at all, but in the hands of the end-users or their agents. But while that could happen as an accident of this bill, it's clearly not the intent. Thus it seems like this bill would not help very much, and that's a real missed opportunity. It's nice that it recognizes portability and interoperability as issues, but it doesn't do the hard work necessary to make that actually meaningful.

Finally, perhaps the most problematic (by far) part of this bill is that if a "covered company" wants to change its APIs, it would need to get FTC approval -- and that seems like a terrible idea. Imagine having to get approval from the government every time you change your API? What? No. Bad.

A covered platform may make a change that may affect its interoperability interface by petitioning the Commission to approve a proposed change. The Commission shall allow the change if, after consulting the relevant technical committee the Commission concludes that the change is not being made with the purpose or effect of unreasonably denying access or undermining interoperability for competing businesses or potential competing businesses.

I mean, yikes. That's going from permissionless innovation -- the very core of our innovation engine -- to having the FTC act as the approver of any slight change to an API. That's really, really bad.

The bill that may get the most attention is Cicilline's own bill that basically says successful internet companies could no longer promote their own ancillary services over those of competitors. Basically, Google couldn't insert its own local results, or its own maps, over a third party's. Think of this as the Yelp Finally Forces Google To Use Yelp's Listings Act, because that's the main driver behind this bill. Basically, some companies that do more specialized search and content don't want Google to be able to compete with them, and more or less want traffic they might not have earned. I can see a slight argument for how the practice of actual monopolies favoring their own services and excluding others could be anticompetitive, but this bill would make it defacto anti-competitive -- and that seems likely to create massive unintended consequences that won't be very good for the internet.

There are, after all, lots of cases where it makes quite a lot of sense for companies to link their ancillary products. Yet, here, doing so will almost definitively lead to a costly antitrust fight, meaning that it will be quite difficult for many companies to build useful complementary services. I don't see how that benefits the public. Again, it seems that a much better solution would be to remove the barriers that currently limit the ability for third party competitors to step in and build tools that interoperate with the bigger players, but that's not the goal here. The goal seems to be to restrict the big internet companies to much more limited offerings, rather than providing a wider suite of services.

Another major change comes from Rep. Hakeem Jeffries, and would effectively make it much, much harder for internet giants to buy companies. A key part of the bill is that the acquiring company would have to affirmatively show that the merger is legit, rather than the government having to show that the merger is problematic. Shifting the burden of proof would basically mean that most such mergers would be presumed unlawful, rather than the opposite. This could have huge and problematic implications for how our economy operates today.

On the good side, the bill would give the FTC and DOJ more resources to review acquisitions. However, as we've discussed before, in trying to block out anti-competitive acquisitions (which are a legitimate concern!) a bill this broad will almost certainly knock out other kinds of important and useful acquisitions (such as ones that keep failing or flailing services alive). More importantly it may take investment capital away from competitive entrepreneurial ventures.

No good investors invest in a company with a plan to just sell it off to a big tech company (indeed, most investors will ask startups how they would deal with such a competitive threat), but having the big guys act as a buyer is an alternative out -- not as successful as succeeding on your own, but still better than losing all of the investment entirely -- makes it easier for the investors to make these kinds of bets. Now that possibility of return will become much more difficult, meaning that investment capital is less likely to go to entrepreneurs trying to create competitive solutions. And that's not good!

A separate bill from Rep. Neguse basically just raises the cost of mergers and acquisitions and... um... sure? Fine. I don't see that as problematic really. I mean, at the margins, making it more costly to do an acquisition might be a nuisance, but the changes and increases don't seem particularly significant here -- and certainly not enough to stop a major acquisition (though, arguably it might drive down the amount that the owners of the acquired company get, effectively transferring it to the government). Consider it kind of a slight tax on selling your business. The bill would also increase funding to the FTC and DOJ to work on antitrust issues, and that seems reasonable as well.

Finally, there's Rep. Jayapal's bill that is pretty clearly designed to just stop Amazon from selling its own goods on Amazon. I know this is an issue lots of people complain about, but it remains unclear to me how much of an actual problem it is. Lots of retailers sell house branded products and compete against others without much of a problem. Costco has its house Kirkland brand, which it sells alongside other companies' competing products. Is that so problematic?

As some are pointing out already, these bills could kill off (or severely limit) a bunch of services that people actually like, mostly as punishment that the innovations have been so successful. And that's a problem.

It's fine to admit that there's a delicate balance here. How do you stop companies from becoming too powerful such that they alone squeeze out or stifle competition, while at the same time not putting in place stringent rules that, by themselves, stifle useful innovations? There really are two major themes of approaches: (1) punish or limit the ability of companies to act or (2) figure out better ways to create incentives for competitors to succeed. Unfortunately, regulators tend to jump to (1) and avoid even trying (2). That seems to be the case here.

Filed Under: acquisitions, antitrust, competition, data portability, doj, ftc, interoperability, mergers
Companies: amazon, apple, facebook, google

DOJ Says It's Time To Add Ransomware Attacks To The Ever Expanding 'War On Terror'

from the not-everything-needs-to-be-terrorism dept

High-profile ransomware attacks -- some the FBI have tentatively attributed to Russian hackers -- have provoked the kind of response none of us should be in any hurry to welcome. But it's been coming to this point for years.

Malicious hacking efforts -- some of them targeting government agencies -- have been normal for as long as we've had computers and networks. And it's something our own surveillance agencies engage in, whether to search for terrorists or to simply cripple foreign governments. Throughout it all, there's been a steady call by some legislators and officials to turn cyber wars into actual wars. Or, at the very least, allow US government agencies to engage in more offensive hacking efforts, rather than simply play defense.

War -- or anything a government can call a "war" -- is the one simple trick governments use to obtain more power for themselves at the expense of the rights of those they serve. That's why the War on Drugs and the War on Terror are more known for mass imprisonment and mass surveillance than any solid victories over the concepts and products the US has declared war against.

Ransomware is the next thing in line for the "war on" treatment. A DOJ internal memo first referenced by Reuters and shared (by the DOJ!) with Gizmodo is equating ransomware attacks with terrorism.

The U.S. Department of Justice plans to take a much harsher approach when pursuing cybercriminals involved in ransomware attacks—and will investigate them using strategies similar to those currently employed against foreign and domestic terrorists.

The new internal guidelines, previously reported by Reuters, were passed down to U.S. attorney’s offices throughout the country on Thursday, outlining a more coordinated approach to investigating attacks. The new guidance includes a stipulation that such investigations be “centrally coordinated” with the newly created task force on ransomware run by the Justice Department in Washington, DC.

This equation of ransomware with terrorism was made explicit by the acting deputy attorney general, who told Reuters this "model" has been used to handle terrorism investigations but not for malicious cyberattacks.

What this means is information will be shared with other agencies as well as oversight and legislators whenever investigators, analysts, and private sector requests for assistance involve ransomware or other online threats, like botnets and forums selling hacking tools and stolen credentials.

What this will mean in practice remains to be seen. The War on Terror hasn't exactly boosted anyone's confidence in the federal government's ability to respond effectively or appropriately to this omnipresent threat. It has saddled us with the TSA and dozens of useless "Fusion Centers." It has created an FBI cottage industry that allows informants to radicalize random citizens into 20-year prison sentences using tactics that often appear to cross the line into entrapment. It has expanded the buying power of the military and allowed local law enforcement to wield its hand-me-downs against American citizens. It has expanded the reach and grasp of multiple intelligence agencies -- some of which have had their own hacking tools leaked/purloined and wielded by the same state-sponsored hackers and cybercriminals these agencies were supposed to be taking down.

Without a doubt, ransomware is a threat to Americans. It has crippled major industry players, resulting in panic buying and price spikes following production dips and logistics nightmares. And it's only a matter of time before critical systems and agencies are held hostage at virtual gunpoint until ransoms are paid. But considering the underlying infrastructure that allows ransomware attacks to take place is also something millions of non-criminals around the world use regularly, allowing the government to treat the greatest communication tool ever invented as Terrorist HQ isn't likely to make it better or safer for anyone using it.

Filed Under: criminals, doj, fbi, ransomware, war on terror

Former FCC Boss Wheeler Says Trump FCC Napped On Cybersecurity

from the asleep-at-the-wheel dept

As we've made clear by now, the FCC under Trump spent four straight years kissing monopoly ass. From eliminating decades-old rules protecting consumers and competitors from the harms of media consolidation to gutting the FCC's consumer protection authority simply because AT&T and Comcast wanted it done, the agency under Pai was a textbook example of regulatory capture. There were a few high points (like the creation of a national suicide hotline), but by and large the FCC under Pai was just a mindless rubber stamp for the industry's wealthiest players.

While the Pai FCC was busy doing whatever AT&T and Comcast wanted, a lot of stuff those companies didn't care about fell off the table. Like any real rules governing the massive light pollution caused by low orbit satellites. Or any support for policies that would competitively challenge entrenched incumbents. And according to former FCC boss Tom Wheeler, a little thing called cybersecurity (more specifically, funds directed at smaller competitors to help them secure their networks):

"We are currently failing to use efficient regulatory mechanisms to oversee the security of these networks. The Department of Homeland Security has the expertise but lacks the regulatory authority of an agency such as the Federal Communications Commission. Yet, for the past four years, the Trump FCC was asleep at the switch, gutting cyber programs and refusing to exercise its authority."

The FCC has largely been a no show on the security and privacy issues plaguing the internet of broken things. And as Congress prepares to throw another $100 billion at America's broadband problem, Wheeler's worried that the funds won't come with any aid to shore up network cybersecurity. While a company like Comcast may not want or need that help, Wheeler argues that smaller broadband providers are going to need aid ensuring they're protected from the growing threat of cyberattacks like the one that just rocked Cox Media Group:

"It is precisely these factors that make such small rural companies prime targets for cyber hackers. The companies typically have fewer than 100 employees — some fewer than 10 — and often cannot afford dedicated cybersecurity personnel or cutting-edge defensive technology."

Of course lobbyists for incumbent giants like Comcast and AT&T are busy shaping what the final broadband bill looks like. That already means not only less money overall, but more subsidies sent to giant players, and less money sent to smaller companies -- especially if they're going to be providing any competitive challenge to incumbents. But throwing yet more money at broadband providers (an approach that already historically hasn't worked out that well for taxpayers) without providing funds to secure them could spell trouble as ransomware and other attacks increasingly target the most ill-prepared.

Filed Under: ajit pai, cybersecurity, fcc, tom wheeler

Senator Wicker Introduces Bill To Guarantee The Internet Sucks

from the you-did-what-now? dept

Why does Senator Roger Wicker from Mississippi hate the internet? Wicker, who has a close relationship with big telcos, who have long made it their mission to destroy the open internet, was already a co-sponsor of an awful "Section 230 reform" bill last session, and is back now with what he's ridiculously calling the "PRO-SPEECH" Act. It stands for "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard Act." But, in reality, it is a blatant (and unconstitutional) attack on free speech.

The bill more or less bans any website from doing any moderation. The key part:

An internet platform may not engage in a practice that does any of the following:

(1) Blocks or otherwise prevents a user or entity from accessing any lawful content, application, service, or device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

(2) Degrades or impairs the access of a user or entity to lawful internet traffic on the basis of content, application, service, or use of a device that does not interfere with the internet platform's functionality or pose a data privacy or data security risk to a user.

Consider it the all porn and all spam allowed act! Kind of ironic for a Senator who once pushed an unconstitutional ban on selling video games to children. Under this bill, sites couldn't even stop kids from accessing or playing violent or pornographic video games.

There are two exceptions, both of which are silly. One is for "small internet platforms." And the other is... wait for it... if you declare yourself a "publisher" then it no longer applies. Yes, that's right. Senator Wicker is trying to make the ridiculous and nonsensical "publisher/platform" distinction an actual thing, despite the fact that this is blatantly unconstitutional.

Let's just remind everyone how this works: the 1st Amendment includes both the right for any website hosting content to make editorial decisions about what it will and won't include, as well as a right of association to say "I don't want to be associated with that stuff." In this setup, where a site has to declare itself a platform or a publisher, that effectively means taking away the 1st Amendment rights of a platform and turning into a garbage dump of spam and porn. Or... it has to declare itself a "publisher" at which point it faces liability for everything that shows up.

The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumps of spam/abuse/porn/harassment where no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers.

It also throws in this tidbit to make it clear Wicker doesn't want social media sites to kick Nazis off their platforms any more:

An internet platform may not take any action against a user or entity based on racial, sexual, religious, political affiliation, or ethnic grounds.

Thing is, discrimination on racial, sexual, religious, and ethnic grounds is already covered under civil rights laws -- and they're protected classes because they're mostly things inherent to someone, and not choices they make. Your political views and affiliation are different. And, the fact is, there are almost no sites out there (despite what ignorant people are screaming) that do any moderation based on political affiliation. Or, if they do, it's to literally ban the American Nazi Party. But under Wicker's bill, you couldn't ban the American Nazi Party or its members any more.

I wonder why he wants that?

Then there's the "I'm protecting Parler" part of the bill. It says this would be a presumed method of "unfair competition."

Any action taken by a larger internet platform that wholly blocks or prohibits an internet platform that competes with the large internet platform (or any affiliate of the large internet platform) from making use of the large internet platform.

So, this would mean that a platform like Parler could violate every policy it wants of companies like Amazon, Google, and Apple, and they would not be allowed to kick it off for any of those policy violations.

There are also onerous transparency requirements based on the false idea that there is a clear set of rules that every platform uses, rather than an ever-changing and evolving set of policies that is constantly dealing with edge cases.

The whole thing is a stupid wishlist of whiny fake conservatives who want to play the victim and claim they're oppressed for the culture war they're waging. But the end result would be wiping out all the important and useful parts of the internet, and dividing into two piles: all garbage all the time, or the Disney-fied, locked down part. No one should want that.

Which makes you wonder why Wicker does.

Filed Under: 1st amendment, content moderation, moderator's dilemma, platform, pro-speech act, publisher, roger wicker, section 230

Daily Deal: The 2021 Complete Angular Developer Bundle

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

The 2021 Complete Angular Developer Bundle has 10 courses to help you learn about web development. Courses cover Angular, Advanced RxJS, Nx Monorepos, and more. You'll configure an Angular app and deploy it to production, learn about accessibility issues, learn how to build Micro Apps, as well as other useful skills. The bundle is on sale for $40.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

DOJ Leak Investigation Targeted Rep. Adam Schiff And His Family Members

from the how-do-you-like-those-expanded-powers-now,-Adam? dept

Former president Trump made plenty of noise about the Deep State being out to get him. But he apparently didn't see anything wrong with sending the Deep State after his enemies.

One of his main enemies was the press -- something he pointed out frequently when he still had viable social media accounts. Everyone who published anything that didn't glorify him and his actions deserved nothing more than disdain. They also, apparently, deserved DOJ investigations. The Trump White House was notoriously leaky and Trump allowed successive AGs to attempt to obtain journalists' communication records in hopes of discovering the source of multiple leaks.

One of his other nemeses was the (so-called) "Democrat" Party. Members of the opposition were also apparently targets of DOJ leak investigations. Somewhat ironically, one target was a strong supporter of unchecked surveillance and FBI abuse of NSA collections. Adam Schiff -- who inserted a loophole to allow the FBI to continue its backdoor searches of NSA collections while renewing Patriot Act powers -- was apparently singled out for the Deep State experience, according to this article by the New York Times.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry.

This investigation centered on leaks surrounding the investigation of Trump's ties to Russia and that country's interference in the 2016 election. It began under Jeff Sessions but apparently hit a dead end. Investigators discussed shutting this investigation down, but it was revived by Trump's new DOJ lap dog, Bill Barr, when he succeeded Sessions.

Apple was hit with a gag order that prevented it from notifying Schiff and other targets about the DOJ's interest in their records. That order finally expired in 2021, nearly four years after it was issued.

Adam Schiff isn't too happy about this particular use of the DOJ's power.

Mr. Schiff called the subpoenas for data on committee members and staff another example of Mr. Trump using the Justice Department as a “cudgel against his political opponents and members of the media.”

We'll see if Schiff being on the receiving end of these powers will force him to rethink his position supporting the DOJ's use of this "cudgel" against everyday Americans who aren't on his team or work for media outlets that routinely criticize him.

And he's yet another person asking for the Inspector General to investigate the DOJ's willingness to violate trust and Constitutional amendments when conducting leak investigations. It will likely be months, if not years, before we see the end result of any investigations, but the growing chorus of voices demanding a closer look by the DOJ's oversight should make it more difficult to ignore.

The DOJ needs to answer for the abuses it has perpetrated in service to presidential administrations more interested in sealing leaks than respecting rights. And it needs to take solid, substantial steps to prevent this unfortunate history from repeating in the future, no matter who's running the country.

Filed Under: adam schiff, doj, donald trump, fbi, leaks, surveillance, vendetta, william barr
Companies: apple

Music Publishers Sue Roblox In Full Frontal Assault On The DMCA

from the here's-a-big-one dept

A huge and potentially important copyright lawsuit was filed this week by basically all of the big music publishers against the immensely popular kids' gaming platform Roblox. Although the publishers trade association, the NMPA, put out a press release claiming the lawsuit, it doesn't appear that NMPA is actually a party. The lawsuit is, in many ways, yet another full frontal assault on the DMCA's safe harbors by the legacy music industry. There's a lot in this lawsuit and no single article is going to cover it all, but we'll hit on a few high points.

First, this may seem like a minor point, but I do wonder if it will become important: buried in the massive filing, the publishers mention that Roblox did not have a registered DMCA agent. That seems absolutely shocking, and potentially an astoundingly stupid oversight by Roblox. And there's at least some evidence that it's true. Looking now, Roblox does have a registration, but it looks like it was made on... June 9, the day the lawsuit was filed.

Wow. Now, that may seem embarrassing, but it might actually be more embarrassing for the Copyright Office and raise a significant and important legal question. Because it appears that Roblox did at one time have a DMCA agent registration but, as you may recall, back in 2016, the Copyright Office unilaterally decided to throw out all of those registrations and force everyone to renew (and then to renew again every three years through a convoluted and broken process).

There's an argument to be made that the Copyright Office can't actually do this. The law itself just says you need to provide the Copyright Office with the information, not that it needs to be renewed. The Copyright Office just made up that part. Perhaps we finally have a test case on our hands to see whether or not the Copyright Office fucked up in dumping everyone's registration.

Still, that's a minor point in the larger lawsuit. The publishers throw a lot of theories against the wall, hoping some will stick. It seems like most should be rejected under the DMCA's safe harbors, because it truly is user generated content, even if the lawsuit tries a variety of approaches to get around that. Part of the lawsuit argues contributory and vicarious copyright infringement, more or less pulling the "inducement" theory from the Grokster ruling, which basically says that if you as a company encourage your users to infringe, you could still be liable (this is, notably, nowhere in the actual law -- it's just what the Supreme Court decided).

But to get there, the lawyers for the music publishers seem to want to take a Roblox executive's comments completely out of context, in a somewhat astounding manner. The "proof" that Roblox is encouraging people to infringe is here:

Roblox is well aware that its platform is built and thrives on the availability of copyrighted music. As Jon Vlassopulos, Roblox’s global head of music, publicly stated just last year: “We want developers to have great music to build games. We want the music to be, not production music, but really great [commercial] music.” (Alteration in original). To that end, Roblox actively encourages its users to upload audio files containing copyrighted music and incorporate them into game content on the Roblox platform. Roblox advertises the importance of music in games and makes it easy for users to upload, share, and stream full-length songs.

But... if you read the article that they're using for that Vlassopulos quote, it's not directed at developers and users of their platform. It's targeted at musicians and the music industry. The whole point of the quote is to let musicians and the industry know that Roblox is open to licensing deals. It's pretty obnoxious to try to spin that as encouraging people to infringe when, in context, it sure looks like the exact opposite. I mean, literally the next sentence (which doesn't make it into the lawsuit) is about how they're "testing the waters" by making a deal with a small indie label to make all of its music available on Roblox.

So it seems to be Roblox saying the exact opposite of what the publishers are claiming. That's... kinda fucked up.

The lawsuit also tries to spin the impossible task of trying to moderate as proof that any failures in moderation are deliberate.

There is no question that Roblox has the right and ability to stop or limit the infringement on its platform. But Roblox refuses to do so, so that it can continue to reap huge profits from the availability of unlicensed music. While Roblox touts itself as a platform for “user-generated” content, in reality, it is Roblox—not users—that consciously selects what content appears on its platform. Roblox is highly selective about what content it publishes, employing over a thousand human moderators to extensively pre-screen and review each and every audio file uploaded. Roblox’s intimate review process includes review of every piece of copyrighted music, generally identified by title and artist—to ensure that it meets Roblox’s stringent and detailed content guidelines and community rules. This process ensures that Roblox plays an integral role in monitoring and regulating the online behavior of its young users.

Roblox thus unquestionably exercises substantial influence over its users and the content on its platform, ostensibly in the name of “safety.” Yet Roblox allows a prodigious level of infringing material through its gates, purposely turning a blind eye for the sake of profits. Rather than take responsibility, Roblox absurdly attempts to pass the obligation to its users—many of whom are young children—to represent to Roblox that they own the copyrights to the works they have uploaded.

Coincidentally, just last week we published our content moderation case study on Roblox, focused on how it tries to stop "adult" content on the platform. We noted that the company is very aggressive and hands-on with its moderation efforts but (importantly) it still makes mistakes, because every content moderation system at scale will make mistakes.

So just because Roblox is aggressive in its moderation, and even if it says it reviews everything, that doesn't mean that it "refuses" to stop infringement. It just means it doesn't catch it all. Indeed, the company has said in the past that it uses an automated third party monitoring tool to try to catch unauthorized songs (though, notably, this lawsuit is about the publishing rights, not the recording rights, so arguably a monitoring tool might catch some sound recordings while missing other songs that implicate songwriters/publishers -- but that's getting super deep in the weeds).

Indeed, the impossibility of catching everything -- while still encouraging websites to try -- is why we want things like Section 512 of the DMCA or Section 230 of the CDA. If you suddenly make websites liable for any mistakes they let through, then you create a huge problem. And claiming that their aggressive moderation implicates them even more only encourages sites to do less moderation in the long run.

But, the publishers don't care about that. Their end goal is clear: as in the EU, they want to force every website to have to buy a blanket license for music. They basically want to do away with the DMCA altogether, then just sit back and collect payments. They want to change the internet almost entirely from a tool for end users to a cash register for music publishers.

There are some other oddities in the lawsuit. It repeatedly tries to claim that Roblox is liable for direct infringement itself, but that theory seems like a stretch. Even the filings admit that the music is all uploaded by users:

Despite Roblox’s written policies, users regularly upload files containing copyrighted music. The act of “uploading” a file to Roblox involves the user making a copy of the file and distributing it to Roblox, where it is then hosted on Roblox’s servers.

To upload an audio file, a user simply opens the Roblox Studio and clicks on a tab marked “Audio,” which then prompts the user to choose a file on their local hard drive, in either .mp3 or .ogg format to be copied and distributed to Roblox’s servers.

It tries to build out the inducement theory by saying that because Roblox encourages developers to use music in their games, and this is the same as encouraging infringement, but that's nonsense. Nothing in what Roblox says encourages infringement. They're just saying that sound and music can enhance a game. Which is clearly true.

Roblox makes the process of uploading infringing music extremely easy for users. Roblox even published an article designed to encourage developers to add music to their games, which explains: “While building a game, it’s easy to overlook the importance of sounds and music.” (Emphasis added).4 That page gives users step-by-step instructions on how to copy and distribute their music files to the Roblox platform.

So what? That's not telling users to infringe. If anything, it's saying "find some music you're able to add to this legally." You'd think that publishers would be happy about that, as it opens up a new line of business where they could license their music, which is what the Roblox exec was talking about at the beginning. But leave it to the greedy publishers to not want to do the hard work here, and instead try to force a big company into a big payment.

Roblox has already put out a statement saying (not surprisingly) that it's "surprised and disappointed" by the lawsuit. It seems likely that it will mount an aggressive defense, and it could be yet another important case in seeing whether or not the legacy music industry is able to chip away at another important aspect of the DMCA, and to force all websites that host third party content to buy blanket licenses.

“As a platform powered by a community of creators, we are passionate about protecting intellectual property rights – from independent artists and songwriters, to music labels and publishers – and require all Roblox community members to abide by our Community Rules,” said the statement.

“We do not tolerate copyright infringement, which is why we use industry-leading, advanced filtering technology to detect and prohibit unauthorised recordings. We expeditiously respond to any valid Digital Millennium Copyright Act (DMCA) request by removing any infringing content and, in accordance with our stringent repeat infringer policy, taking action against anyone violating our rules.”

“We are surprised and disappointed by this lawsuit which represents a fundamental misunderstanding of how the Roblox platform operates, and will defend Roblox vigorously as we work to achieve a fair resolution,” continued Roblox’s statement.

Of course, this is par for the course for the legacy industry -- especially the publishers as lead by the NMPA's David Israelite. They wait for various internet services to get popular, and then rather than figuring out how that helps them, they sue. It's how they constantly kill the golden goose. They've done it with various internet music services, music games, and more. They're currently trying to do it with Twitch and now Roblox as well. They overvalue the music component, and choke off the long term business prospects for these platforms, many of which have music as an ancillary add-on.

It's silly, short-sighted, and anti-culture. In other words, it's the legacy music industry's usual playbook.

Filed Under: copyright, copyright office, dmca, dmca agent, inducement, publishers, registration, safe harbors
Companies: nmpa, roblox