Section 230 of the CDA gave us the internet we know today. It has allowed hundreds of tech companies and dozens of social media networks to flourish. To some people, however, Section 230 immunity is the internet's villain, not its hero. Recent legislation has created some damaging holes in this essential protection, but it's still insular enough to fend off most legal action in which plaintiffs choose to sue service providers rather than the end user who did/said whatever the plaintiff finds tortiously offensive.

Similar to what has been argued in multiple piracy-related lawsuits, the plaintiff in this lawsuit filed against Snapchat alleged one of the company's photo filters encouraged users to break the law. This lawbreaking had particularly tragic consequences.

Christal McGee allegedly drove recklessly (over 100 mph) to capture her accomplishment in Snapchat’s speed filter. McGee’s car hit Maynard’s car and caused permanent brain damage to someone in the car.

This is where Snapchat comes in. It wasn't that the driver was just using the service when the accident occurred. It's that the driver was using a certain filter when she hit the other vehicle.

The Maynards sued Snapchat, alleging “Snapchat knew that its users could ‘use its service in a manner that might distract them from obeying traffic or safety laws.’ Further, the Maynards allege that Snapchat’s Speed Filter ‘encourages’ dangerous speeding and that the Speed Filter ‘facilitated McGee’s excessive speeding[,]’ which resulted in the crash.”

As Eric Goldman points out, the lawsuit doesn't allege McGee posted a photo using the Speed Filter. It's simply enough the filter existed, according to their arguments. The lower court rejected this argument, granting Snapchat's Section 230 motion to dismiss.

The state appeals court, however, has more sympathy for the Maynards' argument. The plaintiffs aren't trying to hold Snapchat liable for any photo McGee was trying to create at the time of the crash. (Testimony from McGee's passenger says McGee was "trying to get the car to 100 m.p.h." and had the app open on her phone, which was aimed at her speedometer.) Instead, the Maynards want Snapchat to be legally liable simply for creating a filter that might encourage users to take photos of themselves speeding.

The appeals court decides [PDF] that this isn't actually a Section 230 case since the Maynards aren't attempting to hold Snapchat accountable for user-generated content. Instead, it points out Section 230 does not immunize service providers from being held liable for software features they themselves create. Snapchat argued that if it's not a Section 230 case, it should still be dismissed because the Maynards' complaint fails for other reasons. The appeals court disagrees:

Although Snapchat contends that this Court should affirm the trial court’s grant of its motion to dismiss under the right for any reason rationale, because the Maynards allegedly did not properly state negligence claims against Snapchat and that the court lacked personal jurisdiction over Snapchat, these issues were not decided by the trial court below.

Back to the trial court it goes to hear arguments about the points Snapchat raised, but did not fully address in its Section 230-based motion to dismiss. Eric Goldman disagrees with the appeals court's assessment of the Section 230 issue.

First, even if she hadn’t completed the publication, McGee allegedly was preparing the speed filter-motivated content for publication. If she had been generating the speed filter only for her personal bemusement, without any plan or ability to share the content with her audience, then I can see why the claim wouldn’t treat Snapchat as the publisher/speaker of her content. But here, McGee’s creation of the speed filter video only makes sense as a preparatory step towards sharing the video with third parties, and I would extend Section 230’s coverage to preparatory steps in addition to the actual publication of content.

Second, as a practical matter, the complaint will probably fail on prima facie grounds–similar to how the promissory estoppel and failure-to-warn workarounds to Section 230 are not very significant because the plaintiffs usually can’t win those claims on the merits. Though the accident was a terrible tragedy, the odds are good that Snapchat’s role in the accident isn’t covered by the applicable torts. So now the case will consume more litigation cycles only to end up in the same place. One of Section 230’s strengths is moving such cases out of the court system early when they relate to publishing third party content.

The second part may seem cold-hearted but there's not much to like about racking up legal fees just to lose on other issues rather than Section 230 immunity. While the plaintiffs may have a point that Snapchat's Speed Filter (which has since been removed) possibly encouraged lawless and dangerous actions, the app had no power to actually force users to drive recklessly while using the app. It's a bit disingenuous to place all the blame on the end users. It was a very stupid addition by Snapchat. But the driver who caused the accident is at fault, not the filter Snapchat created.

It's been a long tradition here on Techdirt to show examples of politicians and political parties pushing for stricter, more draconian, copyright laws are often found violating those same laws. But the French Rassemblemant National (National Rally Point) party is taking this to new levels -- whining about the enforcement of internet filters, just as it's about to vote in favor of making such filters mandatory. Leaving aside that Rassemblemant National, which is the party headed by Marine Le Pen, is highly controversial, and was formerly known as Front National, it is still an extremely popular political party in France. And, boy, is it ever pissed off that YouTube took down its YouTube channel over automatically generated copyright strikes. Le Pen is particularly angry that YouTube's automatic filters were unable to recognize that they were just quoting other works:

Marine Le Pen was quoted as saying, “This measure is completely false; we can easily assert a right of quotation [to illustrate why the material was well within the law to broadcast]”.

Yes, but that's the nature of automated filters. They cannot tell what is "fair use" or what kinds of use are acceptable for commentary or criticism. They can just tell "was this work used?" and if so "take it down."

Given all that, and the fact that Le Pen complained that this was "arbitrary, political and unilateral," you have to think that her party is against the EU Copyright Directive proposal, which includes Article 13, which would make such algorithmic filters mandatory. Except... no. Within the EU Parliament, Rassemblemant National is in a coalition with a bunch of other anti-EU parties known as Europe of Nations and Freedoms or ENF. And how does ENF feel about Article 13? MEP Julia Reda has a handy dandy chart showing that ENF is very much in favor of Article 13 (and the Article 11 link tax).

So... we have a major political party in the EU, whose own YouTube channel has been shut down thanks to automated copyright filters in the form of YouTube's ContentID. And that party is complaining that ContentID, which is the most expensive and the most sophisticated of all the copyright filters out there, was unable to recognize that they were legally "quoting" another work... and their response is to order every other internet platform to install their own filters. Really?

Stanford's Daphne Keller is one of the world's foremost experts on intermediary liability protections and someone we've mentioned on the website many times in the past (and have had her on the podcast a few times as well). She's just published a fantastic paper presenting lessons from making internet platforms liable for the speech of its users. As she makes clear, she is not arguing that platforms should do no moderation at all. That's a silly idea that no one who has any understanding of these issues thinks is a reasonable idea. The concern is that as many people (including regulators) keep pushing to pin liability on internet companies for the activities of their users, it creates some pretty damaging side effects. Specifically, the paper details how it harms speech, makes us less safe, and harms the innovation economy. It's actually kind of hard to see what the benefit side is on this particular cost-benefit equation.

As the paper notes, it's quite notable how the demands from people about what platforms should do keeps changing. People keep demanding that certain content gets removed, while others freak out that too much content is being removed. And sometimes it's the same people (they want the "bad" stuff -- i.e., stuff they don't like -- removed, but get really angry when the stuff they do like is removed). Perhaps even more importantly, the issues for why certain content may get taken down are the same issues that often involve long and complex court cases, with lots of nuance and detailed arguments going back and forth. And yet, many people seem to think that private companies are somehow equipped to credibly replicate that entire judicial process, without the time, knowledge or resources to do so:

As a society, we are far from consensus about legal or social speech rules. There are still enough novel and disputed questions surrounding even long-standing legal doctrines, like copyright and defamation, to keep law firms in business. If democratic processes and court rulings leave us with such unclear guidance, we cannot reasonably expect private platforms to do much better. However they interpret the law, and whatever other ethical rules they set, the outcome will be wrong by many people’s standards.

Keller then looked at a variety of examples involving intermediary liability to see what the evidence says would happen if we legally delegate private internet platforms into the role of speech police. It doesn't look good. Free speech will suffer greatly:

The first cost of strict platform removal obligations is to internet users’ free expression rights. We should expect over-removal to be increasingly common under laws that ratchet up platforms’ incentives to err on the side of taking things down. Germany’s new NetzDG law, for example, threatens platforms with fines of up to &euro'50 million for failure to remove “obviously” unlawful content within twenty-four hours’ notice. This has already led to embarrassing mistakes. Twitter suspended a German satirical magazine for mocking a politician, and Facebook took down a photo of a bikini top artfully draped over a double speed bump sign.11 We cannot know what other unnecessary deletions have passed unnoticed.

From there, the paper explores the issue of security. Attempts to stifle terrorists' use of online services by pressuring platforms to remove terrorist content may seem like a good idea (assuming we agree that terrorism is bad), but the actual impact goes way beyond just having certain content removed. And the paper looks at what the real world impact of these programs have been in the realm of trying to "counter violent extremism."

The second cost I will discuss is to security. Online content removal is only one of many tools experts have identified for fighting terrorism. Singular focus on the internet, and overreliance on content purges as tools against real-world violence, may miss out on or even undermine other interventions and policing efforts.

The cost-benefit analysis behind CVE campaigns holds that we must accept certain downsides because the upside—preventing terrorist attacks—is so crucial. I will argue that the upsides of these campaigns are unclear at best, and their downsides are significant. Over-removal drives extremists into echo chambers in darker corners of the internet, chills important public conversations, and may silence moderate voices. It also builds mistrust and anger among entire communities. Platforms straining to go “faster and further” in taking down Islamist extremist content in particular will systematically and unfairly burden innocent internet users who happened to be speaking Arabic, discussing Middle Eastern politics, or talking about Islam. Such policies add fuel to existing frustrations with governments that enforce these policies, or platforms that appear to act as state proxies. Lawmakers engaged in serious calculations about ways to counter real-world violence—not just online speech—need to factor in these unintended consequences if they are to set wise policies.

Finally, the paper looks at the impact on innovation and the economy and, again, notes that putting liability on platforms for user speech can have profound negative impacts.

The third cost is to the economy. There is a reason why the technology-driven economic boom of recent decades happened in the United States. As publications with titles like “How Law Made Silicon Valley” point out, our platform liability laws had a lot to do with it. These laws also affect the economic health of ordinary businesses that find customers through internet platforms—which, in the age of Yelp, Grubhub, and eBay, could be almost any business. Small commercial operations are especially vulnerable when intermediary liability laws encourage over-removal, because unscrupulous rivals routinely misuse notice and takedown to target their competitors.

The entire paper weighs in at a neat 44 pages and it's chock full of useful information and analysis on this very important question. It should be required reading for anyone who thinks that there are easy answers to the question of what to do about "bad" content online, and it highlights that we actually have a lot of data and evidence to answer the questions that many legislators seem to be regulating based on how they "think" the world would work, rather than how the world actually works.

Current attitudes toward intermediary liability, particularly in Europe, verge on “regulate first, ask questions later.” I have suggested here that some of the most important questions that should inform policy in this area already have answers. We have twenty years of experience to tell us how intermediary liability laws affect, not just platforms themselves, but the general public that relies on them. We also have valuable analysis and sources of law from pre-internet sources, like the Supreme Court bookstore cases. The internet raises new issues in many areas—from competition to privacy to free expression—but none are as novel as we are sometimes told. Lawmakers and courts are not drafting on a blank slate for any of them.

Demands for platforms to get rid of all content in a particular category, such as “extremism,” do not translate to meaningful policy making—unless the policy is a shotgun approach to online speech, taking down the good with the bad. To “go further and faster” in eliminating prohibited material, platforms can only adopt actual standards (more or less clear, and more or less speech-protective) about the content they will allow, and establish procedures (more or less fair to users, and more or less cumbersome for companies) for enforcing them.

On internet speech platforms, just like anywhere else, only implementable things happen. To make sound policy, we must take account of what real-world implementation will look like. This includes being realistic about the capabilities of technical filters and about the motivations and likely choices of platforms that review user content under threat of liability.

This is an important contribution to the discussion, and highly recommended. Go check it out.

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FBI Deputy Director Andrew McCabe's career came to a sudden end earlier this year. Following in his predecessor James Comey's footsteps, McCabe swiftly found himself on the front sidewalk with a Sessions footprint on his ass. An Inspector General's report followed soon after, detailing many reasons McCabe might have been fired -- lying to investigators, leaking stuff to the press, evading concerns about his investigative neutrality in light of his wife's acceptance of donations from a Clinton-linked PAC... We don't know if any of these are why Trump fired McCabe, but pretty much any one of these things makes a firing justifiable.

Lying to the FBI is serious business, even when it's just its oversight. Ask anyone who's been charged with nothing but lying when the FBI fails to build a better case. For McCabe, though, it was just a little "administrative misconduct." Something that could be addressed with a writeup or, in this case, a firing. That the trigger was pulled hours away from McCabe's retirement sucks for McCabe, but I find it very difficult to sympathize with career government employees who feel they're still owed a lifetime of retirement benefits after they've been fired for cause.

McCabe is still trying to get what he thinks taxpayers owe him. He claims the firing was "politically motivated." Given the general nature of Trump's personnel decisions, he's probably not wrong. But the IG report shows him engaged in behavior that could result in termination. McCabe doesn't believe that's the case and he's demanding the DOJ hand over documents and manuals related to internal policies and firing practices. And he's doing this like an actual civilian: by filing FOIA requests.

Unsurprisingly, that's not working. McCabe's lawyers are asking the DC court to force the DOJ to hand over all policies and manuals. As is argued in this quasi-FOIA lawsuit [PDF], the DOJ has been shirking its obligations to the public for decades.

Defendants have been required for over 50 years to proactively disclose the kinds of documents at issue here, and there is no just reason for either their failure to do so now or for any further delay. Defendants’ breach of their disclosure obligations have prejudiced Mr. McCabe and Plaintiff in fundamental ways, all of which flow from one of FOIA’s core concerns: No citizen should “los[e] a controversy with an agency because of some obscure and hidden [administrative material] which the agency knows about but which has been unavailable to the citizen simply because he had no way in which to discover it.”

His FOIA request was only a few days old at the time of the filing, so this lawsuit isn't really about non-responsiveness. It's about the DOJ deliberately playing keep-away with documents McCabe needs to determine whether or not his firing was done in accordance with DOJ policy.

This cannot possibly come as a surprise to McCabe. A career fed would know federal agencies don't turn over documents without a fight, even when their legal obligations are clear. The FBI is barely responsive to its own oversight, so there's no reason to believe the DOJ is going to proactively post documents for public consumption. And when it's facing a potential lawsuit over a firing, it's definitely going to amp up the stonewalling and denials. McCabe probably wouldn't have minded Joe Citizen being dicked around this way, but it irritates him when he's on the receiving end of treatment like this:

FOIA mandates that Defendants proactively disclose the applicable policies and procedures in an electronic format without waiting for an affirmative request. Defendants have failed to do so. When Plaintiff requested the pertinent documents, Defendants variously refused to comply and failed to properly, timely, or sufficiently respond. They even barred Plaintiff from accessing Defendants’ physical library, which contains some (or perhaps all) of the documents at issue here.

When you're forced out of government service, you suddenly become keenly aware of the injustices -- large and small -- perpetrated daily by federal agencies. For someone who used to be near the top of the fed food chain, this pettiness and opacity must be almost unbearable. When you're on the inside, it just looks like a measured response to stupid members of the public who won't mind their own business. But once you're on the outside looking in, you realize how much effort you must make just to force government agencies to comply with federal law and their own internal policies.

So you might recall that part of the Telecommunications Act of 1996 was the concept of line sharing, or local loop unbundling. Simply, the rules set forth by that law required that incumbent telcos needed to share their networks with smaller competitors, providing wholesale access to bandwidth. It was an effort to foster something vaguely resembling competition in the broadband space by letting smaller companies piggyback on existing network infrastructure. The thought was that because the barriers to market entry were so high, this could help smaller competitors gain footholds that would otherwise be impossible.

Unsurprisingly incumbent telcos utterly loathed this idea, and quickly got to work dismantling it. First by ensuring that the coordination between incumbent telcos (ILECs) and smaller competitors (CLECs) was as clunky, cumbersome and annoying as possible (something you probably noticed if you ever waited for installs from one of these smaller ISPs in the late 90s or early aughts), then by lobbying to have the rules dismantled. Incumbent telcos then used the resulting failure as evidence that the idea was doomed from the start, despite the fact we never truly gave it a chance.

The idea of opening incumbent networks to competitors is pretty common in some parts of the world. France for example managed to take the same concept and made it work quite successfully in cities like Paris, where to this day users can get TV, phone, and 100-500 Mbps broadband connections for a tiny fraction of what American consumers pay ($40 to $50 or so). A variation on this theme is open access, where multiple ISPs come in and compete over a core (sometimes government co-run) network; an idea that works well here and abroad, but also sees fierce incumbent ISP opposition for obvious reasons.

It's a battle incumbent telcos won handily thanks to lobbying power, but there remains a few lingering rules they're now trying to eliminate. As such, they've been petitioning the Ajit Pai FCC to eliminate the remainder of these rules. In a blog post by telco lobbying organization US Telecom, telcos argue that the rules are no longer necessary, and (much like their attacks on net neutrality) argue that eliminating them will drive "innovation and investment":

"This month, USTelecom is petitioning the FCC for nationwide forbearance from rules created in 1996 that no longer make sense in today’s marketplace. Specifically, the petition focuses on unbundling obligations, which require some ILECs (incumbent local exchange carriers, a.k.a. local telephone companies) to sell access to parts of their networks to certain competitors at extremely low rates set by regulators.

These outdated rules distort competition and investment decisions. When outdated and overly restrictive regulations are rolled back, innovation and investment thrives. And for over two decades, the broadband industry has transformed how the world communicates under a light-touch regulatory structure that spurred over one and a half trillion dollars in private investment."

Unsurprisingly the smaller companies that are still using those lines don't see the rules in the same light. Independent California ISP Sonic, for example, is one of the last surviving independent ISPs from that era. Sonic argues that they still need access to these networks as they slowly work to build out a fiber network of their own, and gutting the remaining rules is simply an attempt to further constrain what passes for competition in American broadband markets:

"Sonic is fully engaged in the process of building fiber to customers in a number of markets around Northern California, but this represents a serious impediment to our ability to deploy fiber," says Sonic CEO Dane Jasper of the group's petition.

"The 1996 Telecommunications Act created competition in the telephone and broadband marketplace by requiring incumbents to unbundle essential last mile facilities, primarily copper wires that go to premises," Jasper says. "Serving customers on these facilities is an essential step toward fiber deployment, which Sonic is actively engaged in."

"However, we cannot lose access to copper in the meantime," Jasper said. "The cut-off of unbundled network elements as contemplated by US Telecom is an audacious attempt at limiting new fiber deployment by competitive carriers including Sonic, and it would directly harm hundreds of thousands of California consumers and businesses who we currently provide high-speed services using UNE copper facilities and backhaul."

The EFF also has a good blog post explaining why these rules are still important:

"While copper wire infrastructure may strike people as the infrastructure of yesterday, its existence and the legal rights to access it remain essential for competitive entry into the high-speed broadband market. This is because it is one of the only remaining ways a new company can gain customers to then leverage to finance fiber optic deployment. Should the FCC grant the petition, the growing monopolization of high-speed broadband above 25 Mbps where more than half of Americans have only one choice will likely become worse."

And while this isn't a story that's going to get much (any) real attention in the midst of so many other pressing issues, it's important all the same. Especially for a broadband market that's actually getting less competitive than ever thanks to these same telcos routinely refusing to upgrade their own networks, providing giant cable companies like Comcast a growing monopoly over an already uncompetitive broadband sector.

What's up Europe? We've been talking a lot about insanity around the new copyright directive, but the EU already has some pretty messed up copyright/related rights laws on the books that are creating absurd situations. The following is one of them. One area where US and EU laws differ is on the concept of the "database right." The US does not grant a separate copyright on a collection of facts. The EU does. Studies have shown how this is horrible idea, and if you compare certain database-driven industries in the US and the EU, you discover how much damage database rights do to innovation, competition and the public. But, alas, they still exist. And they continue to be used in positively insane ways.

Enter Hakon Wium Lie. You might know him as basically the father of Cascading Style Sheets (CSS). Or the former CTO of the Opera browser. Or maybe even as the founder of the Pirate Party in Norway. Either way, he's been around a while in this space, and knows what he's talking about. Via Boing Boing we learn that: (1) Wium Lie has been sued for a completely absurd reason of (2) helping a site publish public domain court rulings that (3) are not even protected by a database right and (4) the judge ruled in favor of the plaintiff (5) in 24 hours (6) before Lie could respond and (7) ordered him to pay the legal fees of the other side.

I've numbered these because I had to break out each absurd part separately just to start to try to comprehend just how ridiculous the whole thing is. And now, let's go through how each part is absurd in turn:

1. Wium Lie is being sued as an accomplice to the site rettspraksis.no by an operation called Lovdata. Wium Lie tells the entire history in his post, but way back in the early days of the web, while he was helping to create CSS, Wium Lie also helped put Norway's (public domain) laws online. At the time, that same company, Lovdata, was charging people $1-per-minute to access the laws. Really. Eventually, Lovdata dropped the fees and is the official free publishers of the laws in Norway. Of course, statutory law is just one part of "the law." Case law is also quite important and (thankfully) court orders (that make up the bulk of case law) are also in the public domain in Norway. However, Lovdata charges an absurd $1,500 per year to access those decisions. And, it claims a database right* on the collection it makes available online.

2. And yet, Wium Lie is still being sued. Why? When he saw that the website rettspraksis.no was trying to collect and publish these decisions, he borrowed Lovdata CD-ROMs from the National Library in Oslo. He borrowed the 2002 version of the CD-ROM. This date is important, because the EU's database rights last for... 15 years. 2002 databases (and, yes, Wium Lie points out that it's odd to call a stack of documents a database...) are no longer protected by the database rights.

3. So, yeah, the data is clearly in the public domain, and Wium Lie didn't violate anyone's copyright or database rights. Wium Lie notes that Lovdata didn't even try to contact him or rettspraksis.no before suing, but just told the court that they must be scraping the expensive online database:

I'm very surprised that Lovdata didn't contact us to ask us where we had copied the court decisions from. In the lawsuit, they speculate that we have siphoned their servers by using automated «crawlers». And, since their surveillance systems for detecting siphoning were not triggered, our crawlers must have been running for a very long time, in breach of the database directive. The correct answer is that we copied the court decisions from the old discs I found in the National Library. We would have told them this immediately if they had simply asked.

4. This is the most perplexing to me in all of this. I can't read the Norwegian verdict (which, for Lovdata's lawyers, I did not get from scraping your site!), and don't know enough about Norwegian law, but this seems positively bizarre to me. It seems to go against fundamental concepts of basic due process, but how could a judge come out with a verdict like this?

5. ?!?>#$@!%#!%!@!%!#%!!

6. Again: is this how due process works in Norway? In the US, of course, there are things like preliminary injunctions that might be granted pretty quickly, but even then -- especially when it comes to gagging speech, there is supposed to be at least some element of due process. Here there appears to have been something close to none. Furthermore, in the US, this kind of thing would only be allowed if one side could show irreversible harm from leaving the site up. It is difficult to see how anyone could legitimately argue irreversible harm for publishing the country's own (public domain) court rulings.

I find it shocking that the judge ordered the take down of our website, rettspraksis.no, within 24 hours of the lawsuit being filed and WITHOUT HEARING ARGUMENTS FROM US. (Sorry for switching to CAPS, but this is really important.) We were ready and available to bring forth our arguments but were never given the chance. Furthermore, upon learning of the lawsuit, we, as a precaution, had voluntarily removed our site. If the judge had bothered to check he would have seen that what he was ordering was already done. There should be a much higher threshold for judges to close websites that just the request of some organization.

7. And, even if this was the equivalent of an injunction, to also tell Wium Lie and rettspraksis.no that they need to pay Lovdata's legal fees is just perplexing.

the two of us, the volunteers, were slapped with a $12,000 fee to cover the fees of Lovdata's own lawyer, Jon Wessel-Aas. So, the judge actually ordered that we had to pay the lawyer from the opposite side, WITHOUT HAVING BEEN GIVEN A CHANCE TO ARGUE OUR CASE.

This whole situation is infuriating. Being sued is a horrible experience in the first place. But the details here pile absurd upon preposterous upon infuriating. The whole database rights concept is already a troublesome thing, but this application of it is positively monstrous. Wium Lie now has some good lawyers working for him, and hopefully this whole travesty will get overturned, but what a clusterfuck.

* A separate tangent that I'll just note here rather than cluttering up all of the above. I was a bit confused to read references to the EU's database directive/database rights, because Norway is not part of the EU. However, since it is a part of the European Economic Area (yes -- this can all get confusing), it has apparently agreed to enact legislation that complies with certain EU Directives, including the Copyright and Database Directives.

This week, our first place winner on the insightful side is Damien with a simple summary of the lack of logic behind link taxes:

You know, I have yet to see a single source explain how a snippet tax is anything more than trying to charge people for talking about a news story and directing others who are interested to the original source. Apparently "on the internet" really does change everything.

In second place, we've got a response from That Anonymous Coward to the FCC's aggressive demands for personal info from someone who made a pseudonymous FOIA request for information about Ajit Pai's Reese's Pieces mug:

"In order to proceed with your request, please provide us with your name, your personal mailing address, and a phone number where you can be reached...."

Aren't these the same assholes who had no problem with letters of support submitted in the name of the dead, people who submitted nothing, people who knew nothing about net neutrality, and people who opposed what the FCC was doing but someone used their names to give glowing copypasta support?

Also can someone cite the part of the FOIA law that demands all of this information be turned over on demand?? Or is the FCC still making shit up as they go...

For editor's choice on the insightful side, we've got ArkieGuy with a take on the link tax's cousin — the snippet tax — inspired by German publishers comparing quoting to stealing a pound of butter:

The snippet tax is like wanting to charge cookbook publishers for recipes that call for butter. If you start charging people to recommend butter in their recipes, you won't sell as much butter.

Next, we've got a comment from any moose cow word about the absurdity of the EU Copyright Directive's upload filtering requirements:

There's no centralized database of copyright licensees, only copyright holders have access to those records. Yet, not even the largest copyright holders are able to verify which users were granted permission with the accuracy they demand be enshrined in law. How do they expect anyone else to do something only they have the capacity to do, and even they are incapable of doing?

Over on the funny side, our first place winner is Ehud Gavron responding to the FCC's FOIA resistance with a bit of a low-blow that is hard not to giggle at:

Yes, Ajit Pai has a stupid mug.

He also has a funny coffee cup :)

E

In second place, we've got an anonymous response to a commenter who tried to portray our criticism of Google's recent patent attempts as further proof that we are Google shills:

Mike: "Google should be shot in the head."

You: "Look at Masnick wanting us to donate bullets to Google as if they don't have enough. Shill!"

Also you: "Corporations are bad...unless they're intellectual property maximalists who have cheated actual artists and creators out of the fruits of their labors since the time of Queen Anne."

For editor's choice on the funny side, we start out with a comment from tanj about a South Carolina drug task force serving regular warrants like no-knock warrants:

They did knock. Once, with a battering ram.

They did announced their presence, quite loudly.

Finally, we've got a comment from Ninja confessing to an appropriate misreading of something in our post about the FCC's fake DDoS attack:

"There's likely several more layers to this story"

At first I read LAWYERS instead of layers. Which would be pretty accurate as well.

That's all for this week, folks!

Five Years Ago

This week, instead of going through the usual look at what was happening five, ten and fifteen years ago, we're going to put all the focus on the events of this week in 2013. Why? Because it's the week that the revelations of NSA spying, which dropped last week, truly hit the fan. There was a whole lot of news about it, almost completely dominating Techdirt, and it's worth a closer look.

As the leaks kept coming, it was revealed that the source was Edward Snowden, who described his ability to wiretap anyone from his desk. As politicians scrambled to defend the program, the DOJ was trying to cover up the secret court ruling about it, and we realized the big scandal wasn't that the NSA did something illegal, but that it probably didn't.

Some defenders of the PRISM program tried to claim it helped stop an NYC subway bombing, but the evidence was lacking and even the Associated Press soon called bullshit. James Clapper was simultaneously claiming that the leaks were a danger to us all, and also no big deal, while the author of the Patriot Act stepped up to say NSA surveillance must end, and that the law was supposed to prevent data mining. It started becoming clear that the metadata story was the biggest one.

Some politicians began speaking out, with Senator Rand Paul calling for a class-action lawsuit against the NSA, and Senator Ron Wyden calling for congressional hearings, before a group of Senators got together to introduce a bill to end the secrecy of the FISA courts. One Senator had previously predicted a lot of this, but unfortunately he got voted out of office in 2010.

Meanwhile, a former NSA boss said the leaks show America can't keep secrets, even though they really showed the opposite. The public was divided in its opinion on the program, depending heavily on how the question was asked. And we pointed out that the leaks show the importance of Wikileaks and similar operations.

The backlash grew, with Derek Khanna calling for James Clapper to be impeached for lying, a team of 86 companies and other groups called on Congress to end the spying, and the ACLU suing the government for 4th amendment violations. Various former NSA whistleblowers spoke up in defense of Snowden and against the agency's practices. Of course, there was also some pathetic backlash in the other direction, with Rep. Peter King calling for the prosecution of journalists who report on the leaks, and Congress moving to improve secrecy instead of fixing the problem.

Then things began getting even worse, with the possibility emerging that the PRISM program enabled espionage against allies. A new leak at the end of the week revealed the NSA's talking points for defending itself, and sales of George Orwell's 1984 began to skyrocket, and... well, let's just say there's plenty more on the way in the coming weeks.

Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game.

In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise.

The long-awaited sequel to a 2003 Ubisoft game that was critically loved but flopped at retail, Beyond Good and Evil 2 will take place in an open universe full of strange creatures and cultures. During its E3 press conference, Ubisoft said that fans will be able to help populate that universe with their own music and artwork through a partnership with a company called HitRECord, with that company’s founder, actor-turned-entrepreneur Joseph Gordon-Levitt, appearing on stage.

The HitRECord-powered Space Monkey Program allows fans to submit ideas and works into a series of musical and visual categories like “devotional music,” “anti-hybrid propaganda,” and “anti-establishment art.” Other fans can then comment on and remix those works, which will ultimately be evaluated by HitRECord and—if they fit the game well enough—sent along to Ubisoft. Everybody who’s contributed at all to an accepted work will be paid.

If you're anything like me, your reaction to this was purely positive. Fans of Ubisoft titles and Beyond Good & Evil get to contribute to the game in a way they will recognize and be paid some amount of money for? How cool is that? Collaboration with fans on the creation of art is squarely in the realm of our CwF+RtB formula. To add some compensation to that makes this all the better. And, in my opinion, if this were anyone but Ubisoft doing this kind of thing, nobody would be pushing back on it at all. But because of Ubisoft's sketchy reputation, many are viewing this through purely cynical glasses and seeing nothing other than a company trying to avoid paying the full rate for the creation of its game.

Almost immediately after Ubisoft’s conference, critics and developers started asking questions: Why not just pay full-time, salaried developers to do this work? What happens if fans’ work doesn’t get accepted? Do they not get paid? Did they do it all for nothing?

Scott Benson, the co-creator of the indie game Night in the Woods and a vocal advocate for workers’ rights, pointed out that HitRECord’s business model seems to rely on what’s known as “spec work,” short for “speculation.” This is a common but nonetheless ethically muddy practice in creative and design fields. When you do work “on spec,” you’re producing something that a buyer might decide to pick up and then pay you for.

Great, except this isn't being done in the "creative industry" at all, but rather directly with fans of the game franchise. Were Ubisoft trying to strong-arm artists for content it would otherwise pay for up front, then, yeah, this would suck. That's not what it's doing at all, though. Instead, the company is going directly to fans and asking them, rather than coercing them, to get involved in the project in a way those fans will find meaningful. Does this have the happy coincidence of being somewhat less costly? Sure. There's no denying that. But so what? If fans of a game are able to compete with the art created by the creative industry and want to do that type of thing under this platform, where exactly is the ethical dilemma? Were Benson to have his way, fans should be denied this opportunity because... why? Because someone else might not get paid? Where is the sense in that?

There's also something to be said for HitRECord's meta-crowdsourcing experiment here and how interesting it will be to see if it can be pulled off.

“At HR, people build on each other’s ideas, and our website (and community) keeps track of how projects evolve—and how ideas influence one another,” HitRECord executive producer Jared Geller said in an email, noting that the company has paid out a total of nearly $3 million since it was founded in 2010. “So any contribution that is included in any of the songs or visuals (guitar parts, vocal stems, etc) delivered to the Beyond Good and Evil 2 dev team will get credited and paid. If your contribution isn’t used, you don’t get paid.”

So it's not just milking a fanbase for cheap labor, but allowing that fanbase to them play off of one another and build a community product, which will then be injected into the game and for which they will be paid. I mean, come on, if everyone could take their labor union hats off for just a second, they'd have to admit how cool an experiment this is. And, while HitRECord will have the ultimate decision-making authority on how compensation is divvied up between creators, it even takes feedback from multiple creators into account when making those decisions.

The one area where there might be real concern is copyright infringement.

There are other possible complications, as well, said a representative of NoSpec, an organization that advocates against the practice of spec work.

“When people who participate in spec work know that the chance of payment is slim-to-none, it invites the fastest possible turnaround, and we’ve found that spec websites (those that sell design contest listings) are rife with plagiarism,” wrote the rep in an email.

There is truth to this and Ubisoft and HitRECord have better have their shit in order if they don't want to turn this into some hellscape of accusations about plagiarism and copyright infringement. But if they can pull this off, the end result is going to be the injection of the voice of the fan directly into its game, which is about all we could hope for coming from a content producer.

I'll end this with a thought experiment. Imagine for a moment if I had written this same post, except I did a find/replace for "Ubisoft" and replaced it with "Sole game creator." Does anyone really think the same level of outrage would exist? If not, then this isn't a moral question at all, but a monetary one. And if that's the case, it should go without saying that Ubisoft's reputation shouldn't prevent it from being able to try something good and cool with its fans.