It appears another rightsholder is doing something that's a.) well within its rights and b.) counterproductive. It's also another example of how the DMCA is often used to enforce some weird caste system among creators, favoring the incumbents over the upstarts.

A post on Reddit and a short Twitter thread by Twitch streamer Josh Allen confirm IFPI (International Federation of the Phonographic Industry) is targeting Twitch streamers for playing music while recording. DMCA notices sent to Twitch are resulting in account suspensions which could turn into permabans if streamers continue to irritate IFPI.

IFPI can certainly target music from artists it represents. And Twitch's terms of service make it clear it doesn't tolerate copyright infringement. But the end result for streamers is possible account deletion -- and that can lead to an actual loss of income.

For the most part, these notices seem to target music playing in the background of streams. For these streams, the music isn't why people are tuning in. It's, at best, an ancillary addition that exists alongside the gameplay that actually draws viewers. The system Twitch has in place is there to placate copyright holders. It seems a bit overkillish, seeing as it not only boots users from Twitch for 24 hours but deletes/disables anything else they'd previously recorded (VODs [videos on demand]).

The problem with IFPI's actions is it won't result in greater respect for copyright. Instead of working with streamers -- especially the popular ones -- to promote artists Twitch streamers use for background music, it's instead targeted their livelihoods. It's attacking "lost sales" that simply don't exist. This isn't file sharing. Very few people head to Twitch with the intention of listening to music for free. They're there for the content created by Twitch streamers which happen to have music in the background. This isn't one market destroying another. It could be two complementary markets (ContentID but for product placement of inadvertently featured artists) but IFPI has chosen to treat Twitch as just another Pirate Bay.

This gets more problematic considering IFPI's history. IFPI has done things like target Creative Commons-licensed music posted more than a decade prior to the group's bogus DMCA notice. While it loves the ease of use online DMCA submission systems provide, it has no desire to vet its takedown notices, which has allowed people unrelated to IFPI and its artists to engage in secondhand deletion of content IFPI doesn't own. So, there's a good chance some of these notices are bogus, but with almost no avenue for recourse, streamers are just going to have to sit through the suspension and, more likely, ensure nothing plays in the background of livestreams.

There are also some problems on the Twitch side. As is noted in the Reddit thread, some streamers may be taking paid song requests from viewers, which makes this far more problematic than simply doing the internet equivalent of turning the radio on. This may be what's prompted IFPI's recent interest in Twitch streamers (and Twitch's apparently belated enforcement efforts). This might seem more justified, but this appears to be DMCA carpet bombing, not something targeting the worst offenders. Even so, there's no market replacement here, just some unseemly behavior by streamers looking to side hustle as payola DJs.

In the end, what does IFPI actually get for the money it spends policing Twitch? Nothing but a bunch of pissed off streamers who will now avoid IFPI's catalog when playing music. No new fans. No new sales. Just some more "because it's there" DMCA enforcement that engenders more contempt for copyright holders. Nothing about this chain of events results in artists being paid more, and that's supposed to be the reason IFPI does anything.

In some ways the Supreme Court's decision last week in South Dakota v. Wayfair may seem like a small thing: it simply overturned an earlier decision, Quill Corp v. North Dakota, which had concluded that states could not impose requirements to collect sales tax on businesses with no physical presence in the state. But in dispensing with that rule, the decision invited broader effects that may not be so small, thanks to the alarming reasoning the Court used to justify it.

The Court was prompted to reverse its earlier decision – something that the Supreme Court does but rarely, thanks to the principle of stare decisis that ordinarily discourages the Court from messing with an earlier precedent – for a few reasons. In particular it was concerned that Internet businesses without a physical presence in the state had an advantage over those with one [p.12-13], and it accepted South Dakota's claims that it was losing out on millions of dollars in sales tax revenue when South Dakotans bought things from out-of-state Internet businesses who were not collecting the sales taxes that normally would have been owed [p.2].

These assumptions, if true, would raise reasonable policy concerns. But even if they were valid worries, it doesn't follow that the Supreme Court should be the organ of government to address them, especially not when its doing so threatens to create additional policy concerns of its own.

First, South Dakota may be heavily dependent on sales tax to generate revenue, but that's its choice. If consumption taxes turn out to be an inadequate way of filling its coffers, it could choose to impose other forms of taxation, like an income tax, as many other states have. It is not dependent on the United States Supreme Court to help it balance its budget.

Second, like other states, South Dakota requires its residents to independently submit to the state the sales tax that would have been collected, had they bought their goods from an Internet business with a physical presence there. ("If for some reason the sales tax is not remitted by the seller, then instate consumers are separately responsible for paying a use tax at the same rate." [p.2]). The Court may have been correct in observing that enforcing these sorts of payment requirements may be difficult [p.2], but just because it is difficult does not mean that it should fall to the United States Supreme Court to relieve the state of its enforcement burden – especially not an enforcement burden against parties over whom the state already had undisputed jurisdictional reach. This case essentially seems to boil down to South Dakota complaining, "We can't make our residents, who are clearly subject to our laws, pay their taxes, so please make sure that out-of-state residents, who are not clearly subject to our laws, do instead." And the court was amenable to this plea. [p.13]

As for whether the physical presence rule truly gave an advantage to out-of-state businesses, if the state could manage to get its residents to pay the taxes they owe the answer would be no, since any price advantage an out-of-state business could offer would have been negated by the subsequent payment obligation. But the problem with the Supreme Court having now changed the rule is that it's placed its thumb firmly on the other side of the scale and disadvantaged out-of-state businesses in favor of those with a physical presence.

In terms of sales tax collection, in and of itself it's no small task. States rarely have one tax rate applicable to the whole state, or to all types of goods. True, as the Court notes, South Dakota "is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement."

This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability. [p.23]

Such an agreement may certainly aid in minimizing compliance costs. So might the reasonably-priced software that the Court glibly assumes may eventually "make it easier for small businesses to cope with these problems." [p.21]. But in the here and now, compliance is still not so simple. This decision will still reach the other 30 states that have not adopted the Streamlined Sales and Use Tax Agreement, and figuring out how to comply will be more feasible for some businesses than others. Larger companies, for instance, will have more resources to manage complex compliance requirements. Companies large enough, or local enough, to have a presence in these states will also be more familiar with the state and its compliance requirements generally, since they will need to comply with the state's other laws as well.

Which leads to a more significant question raised by this decision, whose holding won't be confined to sales tax collection: what about these other state laws? Per the logic of the decision, can states impose other compliance obligations on Internet businesses, in addition to tax collection ones? As we've seen in recent discussions around Section 230, including in the cases involving Airbnb/Homeaway and Armslist, states love to apply local law to the Internet. In fact, even before the Internet states liked to impose local law whenever they could. The "long-arm" reach of states to impose their regulatory power on out-of-state parties has traditionally been limited by the requirement that the foreign party at least have some minimum contact with the state before they can be exposed to its jurisdiction. Which is why the physical presence rule made sense: being physically there suggested there was a significant enough contact between the party being regulated and the state doing the regulating. It also seemed more fair: in-state companies will also likely have in-state employees able to wield political pressure on the state government if the laws it passes to apply to their employers starts threatening their employment. Whereas out-of-state companies have no such political leverage to wield over the regulators they are nonetheless beholden to.

What the Court seems to be saying now is that lesser contact with a state than physical presence may be sufficient to establish minimum contact. In and of itself, such an assertion may not be controversial, and if the decision's rationale had been focused on those indicia it might not be so disquieting. In terms of the South Dakota taxation law itself, the law does incorporate some limitations so that it won't apply to Internet businesses with only incidental connections to South Dakota.

The Act applies only to sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State."[p.3]

But the Court is not specific as to what sort of lesser contact will be sufficient to subject an Internet business to state jurisdiction for taxation or otherwise, and it is going to be really expensive for out-of-state Internet businesses to find out.

Furthermore, the hostility that the Court showed to these out-of-state businesses is worrying. First, it is unjustifiably dismissive to the utility of the physical presence requirement.

The argument, moreover, that the physical presence rule is clear and easy to apply is unsound. Attempts to apply the physical presence rule to online retail sales are proving unworkable. States are already confronting the complexities of defining physical presence in the Cyber Age. For example, Massachusetts proposed a regulation that would have defined physical presence to include making apps available to be downloaded by in-state residents and placing cookies on in-state residents’ web browsers. Ohio recently adopted a similar standard. Some States have enacted so-called “click through” nexus statutes, which define nexus to include out-of-state sellers that contract with in-state residents who refer customers for compensation. Others still, like Colorado, have imposed notice and reporting requirements on out-of-state retailers that fall just short of actually collecting and remitting the tax. Statutes of this sort are likely to embroil courts in technical and arbitrary disputes about what counts as physical presence. [p. 19-20]

Of course, far from impugning the physical presence rule, these examples demonstrate the wisdom of it, because in all the examples described any dispute that might arise would arise because the states are trying to target businesses that aren't actually physically present in their states.

In fact, in general the Court seems to have an uneasy notion of what constitutes physical presence by an Internet business:

For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or customers may download the company’s app onto their phones. Or a company may lease data storage that is permanently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018). [p.15]

The Court also cannot imagine how limiting a company's physical presence might be of value to it:

But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether a company happens to have a physical presence in a State. For example, a business with one salesperson in each State must collect sales taxes in every jurisdiction in which goods are delivered; but a business with 500 salespersons in one central location and a website accessible in every State need not collect sales taxes on otherwise identical nationwide sales. [p. 12]

Worse, to the extent that the Court can imagine why a 500-person company might choose not to have boots on the ground in every state where it might happen to have an online customer, it is inexplicably hostile:

In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced. [p. 13]

Later it in the decision the Court further describes Quill as allowing out-of-state companies to aid and abet customers in "evad[ing] a lawful tax that unfairly shifts to those consumers who buy from their competitors with a physical presence that satisfies Quill—even one warehouse or one salesperson—an increased share of the taxes." [p. 17]

What is concerning is that in using these pejorative assessments the Court is essentially declaring, "How dare you do something legal to avoid liability." Which is sadly an admonition we've heard the Court make before in trying to substantiate a questionable holding in another case: Aereo.

As the Court continues, the comparison with Aereo becomes even more apt:

"Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable." [p. 13]

In other words, the Court has concluded, "Our jurisdictional rule is deterring investment in the state, so therefore it's a bad rule."

This sort of contorted reasoning is exactly what happened in Aereo, where the Court looked at who was making money, unilaterally decided it was the wrong people, and then tied itself in knots to write new law, indifferent to how much settled precedent it displaced or the full extent of its likely effects, in order to justify reallocating the financial gains.

Then, as now, it was a decision predicated on a series of questionable assumptions. We can only hope that this latest result won't be as seriously catastrophic for online innovation as Aereo has been.

This week, our first place winner on the insightful side is Thad, responding to the tired line from apologists for Trump's immigration atrocities that there would be no problem if immigrants followed the law:

The families the Trump Administration has separated have included asylum-seekers.

Trump's Muslim ban targeted refugees.

Trump scuttled the bipartisan DACA deal partially on the grounds that it didn't do enough to decrease legal immigration. You may remember his statement at the time that he wanted more immigrants from places like Norway, as opposed to "shithole countries" like African nations and Haiti.

Basically, anybody who claims the Trump Administration doesn't have anything against legal immigration is lying, ignorant, or both.

In second place, we've got a response from Anonmylous to the pro-copyright-filter political party in France that got upset about its own content being filtered:

Ostriches are lousy politicians

Maybe.... maybe an allegory will work? Let me try.

*ahem* Dear politicians. Creating laws requiring internet companies to create algorithms that account for fair use is like passing laws requiring the Sun to burn less brightly in order to reduce global warming. It looks great on paper, but to anyone even slightly educated, you appear foolish.

We live in the Digital Age now. Stop clinging to your ignorance as if it were some badge of pride or honor. Learn about these things so you can make laws that actually help your constituents, and the world. Copyright does need reform, but not in the ways that the industry players want. they have a duty to make money for their shareholders, and nothing more. YOU have a duty to your citizens, and no one else. Its about time you remembered that.

For editor's choice on the insightful side, we've got a pair of responses to Ajit Pai's attempts to claim the net neutrality repeal had lots of support. First, it's an anonymous comment commending NPR's handling of his statements:

Props to NPR for calling him out on his bullshit to his face. We need more of this type of behavior.

Next, it's a comment from Toom1275 responding to Pai's claim that "my job is not to put a finger in the wind and decide which way the winds are blowing":

...it's to put a finger on the scales until I get the result I want.

Over on the funny side, our first place winner is an anonymous commenter responding to the (joke) idea that broadcasters should switch to the loot box model:

Spend $1 right now for a 5% chance to skip this commercial.

In second place, it's a response from David to the inclusion of spyware in video games:

Look, this is for serving you better.

All of this paranoia is overblown since this is done in service of the customer.

It's like a plumber who goes to the pain of installing a camera in your bathroom so that he can get a better picture of what may be causing repeated clogged drains and can install the best countermeasures. You don't want every handyman to pester you with details and permissions for doing the best to make things go down the drain smoothly for you in particular.

For editor's choice on the funny side, we've got a pair of comments on our post about the fired FBI official who is now experiencing the other side of the relationship between civilians and government agencies. UniKryn busted out a tiny violin joke:

Tries to build a violin out of Quarks, but those are still too large.

In response (and to be honest this is why I chose these comments — because I'm a huge Star Trek nerd) an anonymous commenter dropped a solid Deep Space Nine reference:

Don't let Odo catch you doing that; as much as he dislikes the bartender, I think he'd frown at the murder that would probably be necessary to reassemble him into a violin.

That's all for this week, folks!

Five Years Ago

This week in 2013, the NSA was seeking blanket immunity for companies that aided its surveillance programs, congressional staffers were being told to pretend leaked documents don't exist, and more than half the Senate skipped a briefing on the NSA's programs. The agency was claiming its surveillance prevented lots of attacks, but these claims tended to fall apart under scrutiny. New leaks revealed how the NSA uses data without a warrant and how the UK was sharing info with the US, and then on Friday the US government brought espionage charges against Edward Snowden.

Ten Years Ago

This week in 2008, the Associated Press stirred up a ridiculous drama following its legal threats against a blogger. First, it proposed that it would create its own rules for quoting AP reporting (as opposed to, y'know, fair use) and then released a price list for quotes based on word length, demanding money for any quote longer than four words. Thus, it was a bit embarrassing when people pointed out that the AP uses substantial quotes from bloggers, often over 100 words in its own reporting. It even did so in its own article about this very issue. Not a good look.

Fifteen Years Ago

This week in 2003, Senator Orrin Hatch worryingly endorsed the use of technology that would destroy the computers of music downloaders, even in a country where most people saw downloading as an infraction on par with jaywalking. Meanwhile, the RIAA was unsurprisingly preparing to use the names of music traders obtained through the Verizon lawsuit to send out cease-and-desist letters. And on another front entirely, the copyright questions surrounding fan fiction were being put in the spotlight by Harry Potter, and J. K. Rowling's approach to such use of her work.

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.

Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.

For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.

The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.

In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.

A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.

And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.

In the meantime, though, this is a great example of advertising as content.

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

[...]

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

I have to admit that until earlier this year, I'd never heard of Jordan Peterson. I first heard about him when he was on Russ Robert's Econtalk podcast, and it was sort of a weird discussion to go into blind, without any knowledge of Peterson. That's because throughout the podcast I found him to be extremely defensive, as if he was constantly under attack and had to parry away an onslaught of criticism. Other than that, I thought he had a few interesting ideas, mixed in with some nutty ideas. Soon after, I suddenly seemed to be hearing about him everywhere. In the last two months, the NY Times did a giant profile on him (in which he does not come off very well). He then played a major role in another bizarre and silly profile of what has been dubbed the "Intellectual Dark Web" -- a network of hilariously self-important people who seem to think they're oppressed for having thoughts out of the mainstream... even though the NY Times article goes on to describe how they all (with Peterson leading the pack) have massive followings, pack stadiums, sell insane numbers of books, and make crazy amounts of money from crowdfunding.

A core piece of that NY Times editor Bari Weiss article was the ill-supported claim that "free speech is under siege" and that these members of the "Intellectual Dark Web" were the renegades being shunned for speaking the truth that no one wanted to hear. To me, it seemed more like they were a bunch of self-important semi-hucksters who lots and lots of people were listening to, but who some people have criticized -- and they take that to mean that free speech is under attack. The more I read and watched about Peterson in particular, the more frustrating everything around him became. He certainly spews a lot of pseudo-intellectual nonsense, but so do many of the people who are angry at him. Many of the critiques of Peterson are, at best, sloppy and inaccurate. And Peterson has perfected playing the obtuse victim.

He's obviously very intelligent and is able to key in on the inaccurate representations of him, and uses that as a wedge to try to discredit those who are criticizing him. But the debates always seem to be more about misunderstanding both sides, and Peterson often appears to embrace the idea that he's a victim in all of this because people do such a poor job attacking his ideas (even if they're nutty and borderline nonsensical). This now famous interview between Peterson and Channel 4's Cathy Newman is a good example of this -- as is the also famous video of Peterson debating some angry students. In both cases, the criticisms that people are making of Peterson's ideology and viewpoints are a caricature -- and Peterson seizes on the misrepresentations, but does so in a fascinating way. Rather than trying to increase understanding and agreement, both sides just dig in and speak entirely at cross purposes. It's entertaining for people who support Peterson, who get to mock the silly misrepresentations of his critics, as well as for those who dislike Peterson, who get to mock his appearance of evading and sidestepping direct questions. It's all theater, and no one comes out of these any wiser. No one is trying to move towards more understanding. They all seem to embrace the misunderstanding as evidence of just how wrong the other side is.

Of course, part of the irony is that as he's perfected playing victim to what he (perhaps reasonably) considers to be unfair criticism, he seems to be adapting the very same stance that he accuses "the radical left" and "snowflakes" of embracing: he becomes quite intolerant of his critics. And now it's reached a new level of ridiculousness (again on all sides) with Peterson suing Wilfrid Laurier University for defamation. It's not often you see people who claim to be free speech warriors suing people for defamation, and especially not just because they said some not nice stuff about him. But, it appears that Peterson is really trying to come out as both a free speech defender... and a victim of free speech at the same time.

And, to be clear, the actions of Wilfrid Laurier University are completely preposterous and deserve to be mocked widely as they have been. It involved a teaching assistant at the school, Lindsay Shepherd, who had showed a clip of Peterson discussing gender pronouns (a topic that Peterson has strong feelings about) in a class. Shepherd does not appear supportive of Peterson's position, but was clearly using the clip to inspire a conversation. That seems laudable. What seems preposterous is what happened next: Shepherd was pulled into a disciplinary hearing and basically told that merely playing video of a public debate of Peterson potentially violated the human rights of students and was the equivalent of playing a clip of Hitler. Shepherd recorded the meeting and it's incredibly stupid. Shepherd, quite reasonably points out what she was trying to do, and the administrators come off as a caricature of the overly politically correct morons that some people (incorrectly) assume run every campus these days. Listening to the whole thing, is painful. Shepherd comes out looking reasonable. The school looks ridiculous. Indeed, the school apologized last fall soon after the audio of her meeting went viral.

Last week Shepherd sued the University herself, with claims of harassment, intentional infliction of nervous shock, negligence and constructive dismissal. It's interesting to note that within the filing, Shepherd's suit directly claims that the professors and administrators in the meeting with her defamed Peterson with their inaccurate portrayals of Peterson. Her own lawsuit, though, does not have any defamation claims.

And, then, this week, Peterson filed his suit -- employing the same lawyer as Shephard. In a statement, Peterson claims that he decided to do so after seeing Shepherd's lawsuit and speaking with her lawyer. Again, irony abounds, as his statement sounds quite a bit like those he was criticizing -- stating that he hopes this makes them think twice before saying mean things about him. He first says he decided to file the lawsuit because he felt that the university "had learned very little from its public embarrassment," and therefore apparently needed the power of the state to fine them for their own speech? That seems... very unlike a "free speech warrior." And then there's this:

I thought that two lawsuits might make the point, better than one. I'm hoping that the combination of two lawsuits might be enough to convince careless university professors and administrators blinded by their own ideology, to be much more circumspect in their actions and their words.

That... does not seem like someone who is a free speech warrior. That... does not seem like someone who believes in open debate. Even as ridiculous and silly as the University's actions were -- and they deserve tremendous mockery for their hysterical and bizarre response to Shepherd's lesson -- responding by suing for defamation is crazy. Canada, unfortunately, has defamation laws that strongly favor the plaintiff making the claims -- unlike in the US where we have a strong First Amendment -- but already experts seem to be suggesting his case is unlikely to succeed. If it were filed in the US, based on what I listened to of the meeting between Shepherd and the professors/administrators at the university, the lawsuit would be laughed out of court, and would be blasted as a censorial attempt to silence someone for protected speech, even if that speech is nonsense. Unfortunately, I have not yet been able to read the full complaint by Peterson as it does not appear to be readily available, so at this point I am only going off of the source material of the recording that Shepherd made, along with the claims that it is the content of that recording that is the basis of Peterson's defamation claims. If there is something more in the actual complaint, I would be happy to revise my opinion of the situation.

The whole thing seems ridiculous, frankly, as with so many of the debates around Peterson. Lots of people are making silly arguments and talking at cross purposes. Almost everyone comes off looking silly. However, just because debates get silly and heated, or just because some professors or teachers make silly claims, the idea of running to the courts and crying defamation, while directly claiming you hope the lawsuit will silence other professors at other universities certainly suggests that Peterson is no friend to free speech.

And this brings us back around to the whole "Intellectual Dark Web" thing. This case suggests the same ridiculous pattern. This is not deep thinkers being oppressed for their heretical great ideas. These are insecure, thin-skinned people with silly ideas, playing victim when other silly people make silly statements about them. Everyone gets to play victim. No one seeks to actually build up more understanding or reasoned debate. Instead, everyone just gets to dig in on their own silly positions. It's not the Intellectual Dark Web. It's the Intellectual Derp Web. And now it's attacking free speech, while pretending to be staunch defenders of free speech. Derp.

The somewhat apocryphal purpose of the early internet was to have a system that could survive a nuclear war, by building it in nodes, such that it couldn't be knocked out easily. That distributed and decentralized concept had many other benefits as well. Somewhat famously, 25 years ago, John Gillmore declared"The Net interprets censorship as damage and routes around it." And there remains some truth to that... in part. But the internet has changed drastically over the decades, and we're now living in the age of the cloud -- which might better be described as the age of the large third party who can be influenced.

Bruce Schneier has written up an interesting article discussing how the rise of the cloud has also enabled much more censorship.

Internet censors have a new strategy in their bid to block applications and websites: pressuring the large cloud providers that host them. These providers have concerns that are much broader than the targets of censorship efforts, so they have the choice of either standing up to the censors or capitulating in order to maximize their business. Today’s internet largely reflects the dominance of a handful of companies behind the cloud services, search engines and mobile platforms that underpin the technology landscape. This new centralization radically tips the balance between those who want to censor parts of the internet and those trying to evade censorship. When the profitable answer is for a software giant to acquiesce to censors' demands, how long can internet freedom last?

It's a good question, and one that I've been thinking a lot about in the past few years. I think it's an overreaction to blame the concept of "the cloud." Indeed, the idea of moving information onto the internet, rather than buried on local machines has some massive benefits, including the ability to access the information and services from any device, as well as being able to (sometimes) connect various services together and accomplish much more.

The real problem to me -- and one I've spoken about going back many years -- is that today's "cloud" is not the "cloud" we should want. It's become a series of silos. Silos owned by large companies. But there's no reason it needs to remain that way. There is simply no reason that we can't build a "cloud" in which end users retain full control over their data. They may allow third party services to access and interact with that data, but it's bizarre how the vision of the "cloud" has turned into a world where it basically just means Google, Microsoft, IBM, Rackspace, whoever else, hosting all your data and retaining all of the control to it, including the control to take it down and make it disappear.

Most of Schneier's piece focuses on Russia's somewhat Quixotic focus on shutting down Telegram, but notes that what happens is almost entirely up to a few large internet companies, and how much they'll push back on pressure from Russia (or other governments):

Tech giants have gotten embroiled in censorship battles for years. Sometimes they fight and sometimes they fold, but until now there have always been options. What this particular fight highlights is that internet freedom is increasingly in the hands of the world's largest internet companies. And while freedom may have its advocates—the American Civil Liberties Union has tweeted its support for those companies, and some 12,000 people in Moscow protested against the Telegram ban—actions such as disallowing domain fronting illustrate that getting the big tech companies to sacrifice their near-term commercial interests will be an uphill battle. Apple has already removed anti-censorship apps from its Chinese app store.

But it's unfortunate that that is the end result. Sometimes it's good that there are large companies who will (sometimes) fight these battles for smaller players, but that shouldn't be the last resort to protect against censorship of the type that Russia and China and other countries seek. For years we've been saying that it's time for us to rethink the internet, and move back towards a more decentralized, distributed world in which this kind of censorship isn't even an issue. It hasn't happened yet, but it feels like we're increasingly moving towards a world in which that's going to be necessary if we want to retain what is best about the internet.

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I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as "The Clenched Fist of Truth" or "The Violence of Lies." It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I'm not linking to the video because I don't need to give it any more attention and if you really want to see it, you know how to use the internet.

Now, let's move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago's Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It's called The Bean. I mean, officially, it's called "Cloud Gate," but no one calls it that. Even Kapoor now now calls it the Bean.

However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There's been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe -- with pretty damn good justification, I'd say -- that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this -- which is unfortunate.

Over the last year, Kapoor has been particularly up in arms over the fact that the NRA's silly video includes a ridiculous brief clip of the Bean. It appears for less than a second in a montage of clips. But it's there:

Kapoor has been unhappy about this for a while, and earlier this year penned an open letter to the NRA decrying its policies. This is good. This is what free speech allows.

However, this week, he took it a step further and filed a really, really dumb copyright lawsuit against the NRA (first noted by ARTnews).

The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA's video, rather than anything related to the actual copyright related rights at issue.

On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I'll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media.

I mean, yeah. But what does that have to do with copyright? Absolutely nothing.

The actual copyright claim is incredibly, laughably weak:

As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial.

Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won't work with him. Also this:

As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits,

Nah. That's not how it works. First of all, if the NRA is profiting from the video, it's not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery.

But the larger point: this is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.

The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with. We can all agree that the NRA is an odious organization with an odious message, but let's not dismantle the First Amendment just because of that group's ridiculous and dishonest methods for defending the Second Amendment. The NRA has every right to use that snippet and all Kapoor's lawsuit is doing is getting the NRA's video that much more attention. The case seems likely to get tossed out quickly. The case was filed in Illinois, which has an okay anti-SLAPP law, which means the end result may actually be that Kapoor ends up paying the NRA's legal fees.

We've talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of "but piracy isn't free speech." That's a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn't allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far.