One of the ideas that we keep trying to drive home is that the Internet works only because Section 230 has allowed it to work. Mess with Section 230, and you mess with the Internet. FOSTA messed with it statutorily, but it isn't just Congress that can undermine all the speech and services that depend on Section 230's protection for the platforms that enable them. Courts can mess with it too.

While it's bad enough when courts get questions of whether Section 230 applies wrong at the trial court level, the higher the court, the more potentially destructive the decision if the court decides to curtail its protection. On the other hand, the higher the court, the more durable Section 230's protective language becomes when the decision gets it right. This post is about one of those cases where the future utility of Section 230 hangs in the balance, and where we hope that the Wisconsin Supreme Court, the highest court in the state, gets it right and finds it applies to the platform being sued -- and therefore all other platforms that depend on its protection.

We've written before about this case, Daniel v. Armslist. As with a lot of the litigation challenging Section 230 it was one of those "bad facts make bad law" sorts of cases. In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal – in Wisconsin unlicensed dealers apparently do not have to run background checks – nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party's speech – in this case, the speech offering the gun for sale – should have been barred by Section 230.

The trial court actually had gotten this question right and dismissed the case. Unfortunately a state appeals court in Wisconsin opted to ignore twenty-plus years of jurisprudence, as well as the statute's pre-emption provision, which would have directed such a finding, and reversed the trial court's original decision. Armslist then sought review by the Wisconsin Supreme Court, and we filed an amicus brief supporting their petition. One of the main points we made in the brief was how much stood to be affected if the decision was not overturned and Section 230's applicability in Wisconsin was now narrowed in ways Congress hadn't intended. After all, it isn't just Armslist in the crosshairs; it is all platforms everywhere, and all the speech and services they enable, in Wisconsin and beyond, that are threatened if platforms can no longer depend on Section 230's critical protection applying to them as it once had.

Fortunately the Wisconsin Supreme Court agreed to hear the case, and this week we filed yet another amicus brief in support of Armslist on the merits. It is similar to the previous brief, with the added example of how much the Copia Institute itself, and Techdirt in particular, depends on Section 230 remaining robust and effective. It relies on it as a user of other services -- for instance, to have its posts shared through social media -- and as a platform itself. There could not be a comments section on Techdirt -- or all the vibrant and insightful discussion found there -- without Section 230 protecting the site from liability for what commenters say.

It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates. But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake.

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday's negotiations have been called off entirely:

Apparently multiple countries -- including Germany, Italy, the Netherlands and Poland -- made it clear they would not support the latest text put forth by Romania, and therefore would have blocked it from moving forward. Monday's negotiations were supposed to have been the "final" negotiations (after the previous "final" negotiations that didn't accomplish much) around a "compromise" bill that then would have gone out to be voted on by the EU Council, the EU Committee and the EU Parliament in the next few months. However, with the news of all those countries (via the EU Council) deciding to vote against the proposal, it effectively blocks it for now.

MEP Julia Reda now has the full breakdown of the votes, noting that 11 countries voted against the "compromise" text: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. That's... a pretty big list. Reda points out that most of those countries were concerned about the impact on users' rights (Portugal and Croatia appear to be outliers). That's pretty big -- as it means that any new text (if there is one) should move in a better direction, not worse.

As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we've seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They've hit something of a stumbling block here. It won't stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let's hope they fix this mess by dumping Articles 11 and 13.

Years before most of us thought Donald Trump would have a shot at the presidency, the Cato Institute's Julian Sanchez put a name on a problem he saw in American conservative intellectual culture. Sanchez called it "epistemic closure," and he framed the problem this way:

"One of the more striking features of the contemporary conservative movement is the extent to which it has been moving toward epistemic closure. Reality is defined by a multimedia array of interconnected and cross promoting conservative blogs, radio programs, magazines, and of course, Fox News. Whatever conflicts with that reality can be dismissed out of hand because it comes from the liberal media, and is therefore ipso facto not to be trusted. (How do you know they're liberal? Well, they disagree with the conservative media!)  This epistemic closure can be a source of solidarity and energy, but it also renders the conservative media ecosystem fragile."

Sanchez's comments didn't trigger any kind of real schism in conservative or libertarian circles. Sure, there was some heated debate among conservatives, and a few conservative commentators, like David Frum, Bruce Bartlett, and the National Review's Jim Manzi, acknowledged that there might be some merit to Sanchez's critique. But for most people, this argument among conservatives about epistemic closure hardly counted as serious news.

But the publication last fall of Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics by Yochai Benkler, Robert Faris, and Hal Roberts—more than eight years after the original "epistemic closure" debate erupted—ought to make the issue hot again. This long, complex, yet readable study of the American media ecosystem in the run-up to the 2016 election (as well as the year afterwards) demonstrates that the epistemic-closure problem has generated what the authors call an "epistemic crisis" for Americans in general. The book also shows that our efforts to understand current political division and disruptions simplistically—either in terms of negligent and arrogant platforms like Facebook, or in terms of Bond-villain malefactors like Cambridge Analytica or Russia's Internet Research Agency—are missing the forest for the trees. It's not that the social media platforms are wholly innocent, and it's not that the would-be warpers of voter behavior did nothing wrong (or had no effect). But the seeds of the unexpected outcomes in the 2016 U.S. elections, Network Propaganda argues, were planted decades earlier, with the rise of a right-wing media ecosystem that valued loyalty and confirmation of conservative (or "conservative") values and narratives over truth.

Now, if you're a conservative, you may be reading this broad characterization of Network Propaganda as an attack on conservatism itself. Here are four reasons you shouldn't fall into that trap! First, nothing in this book challenges what might be called core conservative values (at least as they have been understood for most of the last 100 years or so). Those values typically have included favoring limited government over expansive government, preferring economic growth and rights to property over promoting equity and equality for their own sake, supporting business flexibility over labor and governmental demands, committing to certain approaches to tax policy, and so forth. Nothing in Network Propaganda is a criticism of substantive conservative values like these, or even of what may increasingly be taken as "conservative" stances in the Trump era (nationalism or protectionism or opposition to immigration, say). The book doesn't take a position on traditional liberal or progressive political stances either.

Second, nothing in the book discounts the indisputable fact that individuals and media entities on the left, and even in the center, have their own sins and excesses to account for. In fact, the more damning media criticisms in the book are aimed squarely at the more traditional journalistic institutions that made themselves more vulnerable to disinformation and distorted narratives in the name of "objectivity." Where right-wing media set out to reinforce conservative identity and narratives—doing, in fact, what they more or less always promised they were going to do—the institutional press of the left and the center frequently let their superficial commitment to objectivity result in the amplification of disinformation and distortions.

Third, there are philosophical currents on the left as well as the right that call the whole notion of objective facts and truth into question—that consider all questions of fact to represent political judgments rather than anything that might be called "factual" or "truthful." As the authors put it, reform of our media ecosystems "will have to overcome not only right-wing propaganda, but also decades of left-wing criticism of objectivity and truth-seeking institutions." Dedication to truth-seeking is, or ought to be, a transpartisan value.

Which leads us to the fourth reason conservatives should pay attention to Network Propaganda, which is the biggest one. The progress of knowledge, and of problem-solving in the real world, requires us, regardless of political preferences and philosophical approaches, to come together in recognizing the value of facts. Consider: if progressives had cocooned themselves in a media ecosystem that had cut itself from the facts—that valued tribal loyalty and shared identity over mere factual accuracy—conservatives and centrists would be justified in pointing out not merely that the left's media were unmoored but also that its insistence on doctrinal purity in the face of factual disproof was positively destructive.

But the massive dataset and analyses offered by Benkler, Faris, and Roberts in Network Propaganda demonstrate persuasively that the converse distortion has happened. Specifically, the authors took about four million online stories regarding the 2016 election or national politics generally and analyzed them through Media Cloud, a joint technological project developed by Harvard's Berkman Klein Center and MIT's Center for Civil Media over the course of the last decade. Media Cloud enabled the authors to study not only where the stories originate but also how they were linked and propagated, and how the various entities in our larger media ecosystem link to one another. The Media Cloud analytical system made it possible to study news sites, including the website versions of newspapers like the New York Times and the Wall Street Journal, along with the more politically focused websites on the left and right, like Daily Kos and Breitbart. The system also enabled the authors to study how the stories were retweeted and shared on Facebook, Twitter, and other social media, as well as how, in particular instances, television coverage supplemented or amplified online stories.

You might expect that any study of such a large dataset would show symmetrical patterns of polarization during the pre-election to post-election period the authors studied (basically, 2015 through 2017). It was, after all, an election period, which is typically a time of increased partisanship. You might also expect, given the increasing presence of social-media platforms like Facebook, Twitter, and Instagram in American public life, that the new platforms themselves, just by their very existence and popularity, shaped public opinion in new ways. And you might expect, given the now-indisputable fact that Russian "active measures" were trying to influence the American electorate in certain ways, to see clear proof either that the Russians succeeded in their disinformation/propaganda efforts (or that they failed).

Yet Network Propaganda, instantly a necessary text for those of us who study media ecologies, shows that the data point to different conclusions. The authors' Media Cloud analyses (frequently represented visually in colorful graphs as well as verbally in tables and in the text of the book itself) point to different conclusions altogether. As Benkler characterizes the team's findings in the Boston Review:

"The data was not what we expected. There were periods during the research when we were just working on identifying—as opposed to assessing—the impact of Russians, and during those times, I thought it might really have been the Russians. But as we analyzed these millions of stories, looking both at producers and consumers, a pattern repeated again and again that had more to do with the traditional media than the Internet."

That traditional media institutions are seriously culpable for the spread of disinformation is counterintuitive. The authors begin Network Propaganda by observing what most of us also observed—the rise of what briefly was called "fake news" before that term was transmuted by President Trump into shorthand for his critics. But Benkler at al. also note that that the latter half of the 20th century, mainstream journalistic institutions, informed by a wave of professionalization that dates back approximately to the founding of the Columbia University journalism school, historically had been able to overcome most of the fact-free calumnies and conspiracy theories through their commitment to objectivity and fact-checking. Yet mainstream journalism failed the culture in 2016, and it's important for the journals and the journalists to come to terms with why. But doing so means investigating how stories from the fringes interacted with the mainstream.

The fringe stories had weird staying power; in the period centering on the 2016 election, a lot of the stories that were just plain crazy—from the absurd narrative that was "Pizzagate" to claims that Jeb Bush had "close Nazi ties" (Alex Jones played a role in both of these narratives)--persistently resurfaced in the way citizens talked about the election. To the Network Propaganda authors, it became clear that in recent years something new has emerged—namely, a variety of disinformation that seems, weedlike, to survive the most assiduous fact-checkers and persist in resurfacing in the public mind.

How did this emergence happen, and should we blame the internet? Certainly this phenomenon didn't manifest in any way predicted by either the more optimistic pundits at the internet's beginnings or the backlash pessimists who followed. The optimists had believed that increased democratic access to mass media might give rise to a wave of citizen journalists who supplemented and ultimately complemented institutional journalism, leading both to more accuracy in reporting and more citizen engagement. The pessimists predicted "information cocoons" (Cass Sunstein's term) and "filter bubbles" (Eli Pariser's term) punctuated to some extent by quarrelsomeness because online media can act as disinhibition to bad behavior.

Yes, to some extent, the optimists and the pessimists both found confirmation of their predictions, but what they didn't expect, and what few if any seem to have predicted, was the marked asymmetry of how the predictions played in the 2015-2017 period with regard to the 2016 election processes and their outcome. As the authors put it, "[t]he consistent pattern that emerges from our data is that, both during the highly divisive election campaign and even more so during the first year of the Trump presidency, there is no left-right division, but rather a division between the right and the rest of the media ecosystem. The right wing of the media ecosystem behaves precisely as the echo-chamber models predict—exhibiting high insularity, susceptibility to information cascades, rumor and conspiracy theory, and drift toward more extreme versions of itself. The rest of the media ecosystem, however, operates as an interconnected network anchored by organizations, both for profit and nonprofit, that adhere to professional journalistic norms."

As a result, this period saw the appearance of disinformation narratives that targeted Trump and his primary opponents as well as Hillary Clinton, but the narratives that got more play, not just in right-wing outlets but ultimately in the traditional journalistic outlets at well, were the ones that centered on Clinton. This happened even when there were fewer available facts supporting the anti-Clinton narratives and (occasionally) more facts supporting the anti-Trump narratives. The explanation for the anti-Clinton narratives' longevity in the news cycle, the data show, is the focus of the right-wing media ecology on the two focal media nodes of Fox News and Breitbart. At times during this period, Breitbart took the lead as an influencer from Fox News, which eventually responded by repositioning itself after Trump's nomination as a solid Trump booster.

In contrast, left-wing media had no single outlet that defined orthodoxy for progressives. Instead, left-of-center outlets worked within the larger sphere of traditional media, and, because they were competing for the rest of the audience that had not committed itself to the Fox/Breitbart ecosystem, were constrained to adhere, mostly, to facts that were confirmable by traditional media institutions associated with the center-left (the New York Times and the Washington Post, say) as well as with the center-right (e.g., the Wall Street Journal). Basically, even if you were an agenda-driven left-oriented publication or online outlet, your dependence on reaching the mainstream for your audience meant that, you couldn't get away with just making stuff up, or with laundering far-left conspiracy theories from more marginal sources.

Network Propaganda's data regarding the right-wing media ecosystem—that it's insular, prefers confirmation of identity and loyalty rather than self-correction, demonizes perceived opponents, and resists disconfirmation of its favored narratives—map well to social-science political-communication theorists Kathleen Hall Jamieson and Joseph Capella's 2008 book, Echo Chamber: Rush Limbaugh And The Rise Of Conservative Media. In that book, Jamieson and Capella outlined how, as they put it, "these conservative media create a self-protective enclave hospitable to conservative beliefs." As a consequence, they write:

"[t]his safe haven reinforces conservative values and dispositions, holds Republican candidates and leaders accountable to conservative ideals, tightens their audience's ties to the Republican Party, and distances listeners, readers, and viewers from 'liberals," in general, and Democrats, in particular. It also enwraps them in a world in which facts supportive of Democratic claims are contested and those consistent with conservative ones championed."

The data analyzed by Benkler et al. in Network Propaganda support Jamieson's and Capella's conclusions from more than a decade ago. Moreover, Benkler et al. argue that the key factors in the promotion of disinformation were not "clickbait fabricators" (who generate eye-grabbing headlines to generate revenue), or Russian "active measures," or the corrosive effects of the (relatively) new social-media platforms Facebook and Twitter. The authors are aware that in making this argument they're swimming against the tide:

"Fake news entrepreneurs, Russians, the Facebook algorithm, and online echo chambers provide normatively unproblematic, nonpartisan explanations to the current epistemic crisis. For all of these actors, the strong emphasis on technology suggests a novel challenge that our normal systems do not know how to handle but that can be addressed in a nonpartisan manner. Moreover, focusing on 'fake news' from foreign sources and on Russian efforts to intervene places the blame onto foreigners with no legitimate stake in our democracy. Both liberal political theory and professional journalism consistently seek neutral justifications for democratic institutions, so visibly nonpartisan explanations such as these have enormous attraction."

Nevertheless, Network Propaganda argues, the nonpartisan explanations are inconsistent with what the data show, which the authors characterize as "a radicalization of roughly a third of the American media system." (It isn't "polarization," since the data don't show any symmetry between left and right "poles.") The authors argue that "[n]o fact emerges more clearly from our analysis of how four million political stories were linked, tweeted, and shared over a three-year period than that there is no symmetry in the architecture and dynamics of communications within the right-wing media ecosystem and outside of it." In addition, they write, "we have observed repeated public humiliation and vicious disinformation campaigns mounted by the leading sites in this sphere against individuals who were the core pillars of Republican identity a mere decade earlier." Those campaigns against Republican stalwarts came from the radicalized right-wing media sources, not from the left.

The authors acknowledge that they "do not expect our findings to persuade anyone who is already committed to the right-wing media ecosystem. [The data] could be interpreted differently. They could be viewed as a media system overwhelmed by liberal bias and opposed only by a tightly-clustered set of right-wing sites courageously telling the truth in the teeth of what Sean Hannity calls the 'corrupt, lying media,' rather than our interpretation of a radicalized right set apart form a media system anchored in century-old norms of professional journalism." But that interpretation of the data flies in the face of Network Propaganda's extensive demonstration that the traditional mainstream media—in what the authors call "the performance of objectivity"—actually had the effect of amplifying right-wing narratives rather than successfully challenging the false or distorted narratives. (The authors explore this paradox in Chapter 6.)

Democrats and progressives won't have any trouble accepting the idea that radicalized right-wing media are the primary cause of what the authors call today's "epistemic crisis." But Benkler and his co-authors want Republicans to recognize what they lost in 2016:

"The critical thing to understand as you read this book is that the epochal change reflected by the 2016 election and the first year of the Trump presidency was not that Republicans beat Democrats [but instead] that in 2016 the party of Ronald Reagan and the two presidents Bush was defeated by the party of Donald Trump, Breitbart, and billionaire Robert Mercer. As our data show, in 2017 Fox News joined the victors in launching sustained attacks on core pillars of the Party of Reagan—free trade and a relatively open immigration policy, and, most directly, the national security establishment and law enforcement when these threatened President Trump himself."

It's possible that many or even most Republicans don't yet want to hear this message—the recent shuttering of The Weekly Standard underscores one of the consequences of radicalization of right-wing media, which is that center-right outlets, more integrated with the mainstream media in terms of journalistic professionalism and factuality, have lost influence in the right-wing media sphere. (It remains to be seen whether The Bulwark helps fill the gap.)

But the larger message from Network Propaganda's analyses is that we're fooling ourselves if we blame our current culture's vulnerability to disinformation on the internet in general or on social media (or search engines, or smartphones) … or even on Russian propaganda campaigns. Blaming the Russians is trendy these days, and even Kathleen Jameson, whose 2008 book on right-wing media, Echo Chamber, informs the authors' work in Network Propaganda, has adopted the thesis that the Russians probably made the difference for Trump in 2016. Her recent book Cyberwar—published a month after Network Propaganda was published—spells out a theory of Russian influence in the 2016 election that also, predictably, raises concerns about social media, as well as focusing on the role of the Wikileaks releases of hacked DNC emails and how the mainstream media responded to those releases.

Popular accounts of Jamieson's book have interpreted Cyberwar as proof that the Russians are the central culprits in any American 2016 electoral dysfunction, even though Jamieson carefully qualifies her reasoning and conclusions in all the ways you would want a responsible social scientist to do. (She doesn't claim to have proved her thesis conclusively.) Taken together with the trend of seeing social media as inherently socially corrosive, the Russians-did-it narrative suggests that if Twitter and Facebook (and Facebook-integrated platforms like Instagram and WhatsApp) clean up their acts and find ways to purge their products of foreign actors as well as homegrown misleading advertising and "fake news," the political divisiveness we've seen in recent years will subside. But Network Propaganda provides strong reason to believe that reforming or regulating or censoring the internet companies won't solve the problems they're being blamed for. True, the book expressly endorses public-policy responses to the disinformation campaigns of malicious foreign actors as well as reforms of how the platforms handle political advertising. But, the authors insist, the problem isn't primarily the Russians, or technology—it's in our political and media cultures.

Possibly Jamieson is right to think that the Russians' "active measures" were efforts that, amplifying pre-existing political divisions through social media, were the final straw that ultimately changed the outcome of the 2016 election. Nevertheless, at its best Jamieson's book has taken a snapshot of how vulnerable our political culture was in 2016. Plus, her theory of Russian influence requires some suspension of disbelief, notably in her theory about how then-FBI-director James Comey's interventions—departures from DOJ/FBI norms—were caused somehow by the fact of the Russian campaign. Even if you accept her account, it's an account of our vulnerability that doesn't explain where the vulnerability came from.

In contrast, Network Propaganda has a fully developed theory of where that vulnerability came from, and traces it—in ways aligned with Jamieson's previous scholarship—to sources that predate the modern internet and social media. In addition, in what may be a surprise given the book's focus on what might be mistakenly taken as a problem unique to American political culture, Network Propaganda expressly places the American problems in the context of the larger currents around the world to blame internet platforms in particular for social ills:

"For those not focused purely on the American public sphere, our study suggests that we should focus on the structural, not the novel; on the long-term dynamic between institutions, culture, and technology, not only the disruptive technological moment; and on the interaction between the different media and technologies that make up a society's media ecosystem, not on a single medium, like the internet, much less a single platform like Facebook or Twitter. The stark differences we observe between the insular right-wing media ecosystem and the majority of the American media environment, and the ways in which open web publications, social media, television, and radio all interacted to produce these differences, suggest that the narrower focus will lead to systematically erroneous predictions and diagnoses. It is critical not to confound what is easy to measure (Twitter) with what is significantly effective in shaping beliefs and politically actionable knowledge in society.... Different countries, with different histories, institutional structures, and cultural practices of collective sense-making need not fear the internet's effects. There is no echo chamber or filter-bubble effect that will inexorably take a society with a well-functioning public sphere and turn it into a shambles simply because the internet comes to town."

Benkler, Faris, and Roberts expressly acknowledge, however, that it's appropriate for governments and companies to consider how they regulate political advertising and targeted messaging going forward—even if this online content can't be shown to have played a significant corrosive role in past elections, there's no guarantee that refined versions won't be more effective in the future. But even more important, they insist, is the need to address larger institutional issues affecting our public sphere. The book's Chapter 13 addresses a full range of possible reforms. These include "reconstructing center-right media" (to address what the authors think Julian Sanchez correctly characterized as an "epistemic closure" problem) as well as insisting that professional journalists recognize that they're operating in a propaganda-rich media culture, which ethically requires them to do something more than "performance of objectivity."

The recommendations also include promoting what they call a "public health approach to the media ecosystem," which essentially means obligating the tech companies and platforms to disclose "under appropriate legal constraints [such as protecting individual privacy]" the kind of data we need to assess media patterns, dysfunctions, and outcomes. They write, correctly, that we "can no more trust Facebook to be the sole source of information about the effects of its platform on our media ecosystem than we could trust a pharmaceutical company to be the sole source of research on the outcome of its drugs, or an oil company to be the sole source of measurements of particles emissions or CO2 in the atmosphere."

The fact is that the problems in our political and media culture can't be delegated to Facebook or Twitter to solve on their own. Any comprehensive, holistic solutions to our epistemic crises require not only transparency and accountability but also fully engaged democracy with full access to the data. Yes, that means you and me. It's time for our epistemic opening.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at R Street Institute.

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Earlier this week, we noted that the film, TV and sports industry associations had come out against Article 13 in the EU Copyright Directive. It was for all the wrong reasons of course -- mainly, that (1) negotiators were exploring very minor safe harbors that would give internet platforms conditions they could follow to avoid liability and (2) they were hoping that a few court cases would break their way and they'd get an even better result in the courts -- but it was still notable. After all, much of Article 13 was pushed for by those same industry reps.

Still, some suggested that while the movie and TV folks wanted out, the record labels didn't, as they had been even more instrumental in crafting Article 13, with their entirely mythical concept of the "value gap" (a thing that does not actually exist) which they incorrectly believed Article 13 would solve. However, on Thursday, even the record labels bailed out on support for Article 13, though it appears for the same awful reasons as the film studios. They don't go quite as far as the film and TV folks (who ask for Article 13 to be put on hold indefinitely), but rather call for major changes:

With the final trilogue only days away, European creatives and rightsholders urgently inform EU policymakers that the 13 January draft text of the proposed Copyright Directive does not meet the original objective of Article 13 and urgently requires significant changes.

They don't really explain why they're so upset, but it's not difficult to see that it's the same reason as the film, TV and sports organizations. Again, Article 13 is a kind of bait and switch. All of the stuff people are complaining about -- the mandatory filters, notice-and-staydown, the insane fines -- all go away if the internet platforms agree to basically cough up all their money to the legacy copyright gatekeepers. The "secret" truth behind Article 13 is that even the folks crafting it know that all of the demands are absolutely ridiculous. It's just that they've included a "way out." And that "way out" is to agree to insane licensing rates from the legacy copyright players. Despite the nonsense you'll hear, this won't create "fair market" rates or "fair" anything. You don't negotiate a fair market rate when you're basically told that if you don't agree to whatever rates the copyright gatekeepers set, you'll get fined billions of dollars.

So any path to avoiding having to agree to a license at the end of a shotgun is seen as a non-starter for the entertainment industry. Though, their latest bit of petulance about not getting everything they want kind of gives away the gameplan. This was never about stopping infringement. It was always about a government-mandated wealth-transfer from the companies who actually innovated to the companies that failed to innovate.

Either way, if they no longer like the deal, the tech companies have never liked the deal and (most importantly) the public hates the deal... then why is the EU still pushing forward with it? Who actually still supports it, beyond the politicians in the EU? It's one thing to say that a true political compromise makes no one happy, but this is a case where everyone is fundamentally against the end result entirely.

So, please, European bureaucrats: let's just leave Article 13 in the trash pile where it belongs.

Just about a month ago the FCC quietly handed the telecom industry another favor by voting to reclassify text messages as an "information service" instead of a "telecommunications service" under the Telecom Act, effectively freeing text messaging practices from government oversight. While the FCC stated the move was essential in order to fight text spam, consumer groups were quick to note the lack of oversight provided cellular carriers a nifty way to hamper third-party SMS services that might just compete with, or cause problems for, their own offerings.

Fast forward to this month, and lo and behold, Verizon's already ruffling some feathers on this front. Remind, a free school texting, chat and messaging service used by teachers, students, school coaches, and parents, this week sent a notice to its customers stating that it may no longer be able to offer the service on the Verizon network thanks to a new "spam" fee Verizon is imposing on a service that's not really spam. From the notice to customers:

"To offer our text messaging service free of charge, Remind has always paid for each text that users receive or send. Now, Verizon is charging Remind an additional fee intended for companies that send spam over its network.

Your Remind messages aren’t spam, but that hasn’t helped resolve the issue with Verizon. The fee will increase our cost of supporting text messaging to at least 11 times our current cost—forcing us to end free Remind text messaging for the more than 7 million students, parents, and educators who have Verizon Wireless as their carrier.

While several Canadian companies charge similar fees, Remind said on Twitter that Verizon was the only US company (for now) to begin charging this fee, which the company estimates could cost it up to several million dollars annually. And because the FCC gutted all regulatory oversight, the agency eroded any meaningful authority over Verizon or any additional company looking to impose such spurious surcharges. When pressed by Ars Technica, Verizon stuck to its claim that the new surcharge is essential to help combat spam:

"Verizon, which touts its commitment to education, defended the new fee. Such fees are "intended to share costs incurred to help protect students, parents, and teachers from spam and dangerous text messages over the Verizon network, while reducing fraud," Verizon said in a statement to Ars.

Verizon said the "very small fee will be charged only to major text-messaging aggregation companies such as Remind and Twilio–and not schools, parents, or students." The fees "pay for the work required to contain spam and fraud associated with this service," Verizon said.

But Remind and the company they use to send the messages and alerts (Twilio) already pay Verizon money to carry the texts, and this new fee will only compound those costs dramatically to Verizon's direct financial benefit. In the midst of the bickering between the two companies, Verizon issued a news release saying it would back away from its original plan, slightly. This being Verizon, it was unable to do so without attempting to shift the blame entirely to Remind:

"As discussed this week with Remind, Verizon will not charge Remind fees as long as they don’t begin charging K-12 schools, educators, parents and students using its free text message service. Despite this offer, made Tuesday, Remind has not changed its position that it will stop sending free texts to Verizon customers who use the service regarding school closures, classroom activities and other critical information."

In short, Verizon's "compromise" is that it will reverse the fee for K-12 users of the free Remind service, but that still means numerous other users of the service (like coaches, preschools, and day care centers) will still face the arbitrary fee. Remind tells Ars Technica they've yet to get that proposal in writing, and there's questions as to how K-12 users would even verify their exemption with Verizon in the first place. A better option remains to simply not engage in the cash grab at all.

This particular fight over text messaging oversight began a little more than a decade ago, when Verizon decided to ban a pro-choice group named NARAL Pro-Choice America from sending text messages to Verizon Wireless customers who had opted in to receiving them. Verizon justified the ban by declaring the text messages "controversial or unsavory." A curious move for an industry that has historically cuddled up to marketing spammers and crammers when it's profitable.

Ever since then consumer groups, worried that cellular carriers would abuse their gatekeeper power on the text messaging front, have been urging the FCC to declare text messages a “telecommunications service," making it illegal for carriers to ban, hinder, or impose arbitrary fees on such select SMS services. Of course the Ajit Pai FCC did the exact opposite, and here we are, with non-profits and schools lighting up Twitter with complaints under the #reversethefee hashtag.

The EU Copyright Directive continues to be a total and complete disaster. It's so bad that neither of the two main groups lobbying around it -- the legacy entertainment industry and the big tech companies (with the vast majority of the lobbying coming from the copyright sector) are both unhappy with the bill (though for opposite reasons). And yet, despite all of this, the EU continues to soldier forward with a new proposal and a new draft that still requires that internet companies do the impossible:

The specific suggestions being pushed in the revised Copyright Directive suggests that whoever is putting this stuff together still has no idea what they're talking about. There's an attempt at fixing Article 11 (the snippet tax) not by actually fixing it, but at least making sure that it doesn't apply to "individual words or very short extracts."

The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication.

What does "very short extracts of a press publication" mean? Well, we'll have to see what courts think of it after extensive litigation, I guess.

More importantly, Article 13 remains an utter mess where they still think that internet companies can just wave a magic wand and suddenly they will stop all infringement without also taking down non-infringing content. The text still pushes for online platforms to have to take out licenses for everything -- and on the question of takedowns of stuff that isn't actually infringing, it just says "don't do that":

The steps taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users.

Users should not be prevented from uploading and making available content that they have produced and that contains existing works or other protected subject matter for specific purposes of illustration or parody when these uses do not create significant harm to rightholders.

First of all... how is that even possible to do these things without running afoul of the other parts of the law? The bureaucrats don't say because they don't understand any of this. Second, this new text basically only says that this applies to "parody" or when the uses "do not create significant harm to rightsholders." But, who determines that? We've seen rightsholders go nuts over all sorts of uses that wouldn't create actual harm (in some cases that would lead to more revenue). All of this is just left up to the idea that internet companies will magically figure out what's okay and what's not.

As the EFF notes in a thorough post, so much of Article 13 is really the EU putting out vague statements about what should be allowed and what should not be allowed, without any notion of how that'll work and then saying you two giant industries figure this mess out. Indeed, as scholar Annemarie Bridy pointed out recently in a wonderful (if terrifying) tweet storm, the entire Article 13 appears to be based on a model of the world that isn't accurate -- one where there are just a few internet companies negotiating with just a few content companies:

The whole thing remains an utter disaster that is moving forward even as no one is left who really seems to support it. The public doesn't want this shit. The big entertainment companies are now asking for Article 13 to be set aside. The big internet companies have always been against it. And yet it rolls ever forward, with a bunch of clueless, technically illiterate bureaucrats basically saying "well, if we just say big companies should do this without allowing any negative consequences to happen, surely they can figure it out..." and tossing it over the fence.

This is not how sane policy is made. This is how you fuck up the internet.

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

You may be surprised to find that a search of our story archives involving fast-food giant McDonald's returns pretty scant posts here at Techdirt. Regardless, the company is known to be quite protective on trademark matters, often times using the trademarks it holds to swat at legitimate competition, pretending at potential public confusion that doesn't really exist. Given the size of the company's legal war chest, these bullying efforts are typically successful.

But not always. One victim of this bullying was Supermacs, an Irish fast-food chain with an appropriately Irish name. Supermacs has for years wanted to expand throughout Europe, but was largely unable to due to McDonald's claiming that its trademark registration for "Big Mac", the name of its famous sandwich, meant that any attempt by Supermacs to expand into Europe would cause public confusion. This is typically where the story would end. Instead, Supermacs went on the offensive and decided to try to get McDonald's "Big Mac" trademark cancelled entirely so that it could no longer be wielded as a bully-stick. And, much to this writer's surprise, Supermacs won.

McDonald's Corp has lost its rights to the trademark "Big Mac" in a landmark European Union (EU) case ruling in favour of Ireland-based fast-food chain Supermac's, according to a decision by European regulators.

The judgment revoked McDonald's registration of the trademark, saying the world's largest fast-food chain had not proven genuine use of it over the five years prior to the case being lodged in 2017.

Whoops. So, how did this happen? Well, in large part it appears that the legal team for McDonald's largely phoned its work in, likely not even considering that it had any chance of losing. When the trademark office requested that McDonald's prove it was using its "Big Mac" trademark actively in commerce, the company's legal team offered up some website printouts and got a few people to write testimonials.

The EUIPO said the affidavits from McDonald's needed to be supported by other types of evidence, and that the websites and other promotional materials did not provide that support. From the website printouts "it could not be concluded whether, or how, a purchase could be made or an order could be placed", the EUIPO said.

"Even if the websites provided such an option, there is no information of a single order being placed."

In many respects, this is all a little crazy. McDonald's does indeed sell Big Macs in Europe. Why it couldn't be bothered to put forth some evidence of this beyond printouts of websites is beyond me.

Given that this again all stems from McDonald's wanting to pretend an Irish chain called Supermacs is confusing because of its Big Mac sandwich would cause confusion, even though Supermacs doesn't sell anything called a "Big Mac", makes it hard to feel all that sorry for McDonald's. Instead, it's easy to see this as a huge company tried to play bully then got lazy when called out on it, and now suddenly doesn't have its most famous trademark on the European continent.

Of course, this ruling is so crazy that at least one publication literally thought it couldn't be real and then had to retract it's report denying that McDonald's had lost the trademark:

Late last year, I wrote about how the GDPR almost ruined Christmas in one German town, where it was determined that the annual tradition of kids putting their wishes on a tree in the center of town (to be fulfilled by local town officials) would violate the GDPR. Some people did figure out a "workaround" involving some pointless bureaucracy in getting parents to first sign "consent" forms to allow the town to do the same thing they've always done for years without a problem.

However, now we have another story of the GDPR ruining another Christmas tradition in a different way. This tradition? Taking back the awful presents people give you that you don't actually want. At least some retailers are telling people that doing so under the GDPR requires them to inform the original purchaser that you really didn't like their gift:

While the pilgrimage to take back garish jumpers and superfluous socks is a new year's tradition as familiar as taking down the Christmas tree, data rules now oblige internet retailers to tell a buyer when an item they have bought is returned - regardless of whether it was a gift.

In some cases, companies are warning customers that they should inform the gift-giver themselves that they are making the return - before the company has to let them know.

In one instant, a father returning a child's coat to Boden was told that the original buyer would be informed 'due to data protection regulations'.

I'm sure some can try to spin this as a way of forcing people to be a bit more honest about not liking the awful sweater their dear old aunt bought them for the holidays, but, really... how exactly is this protecting anyone's "data"? If anything, it seems to be violating more people's privacy in revealing what they do with the crap presents they never wanted in the first place.

The article notes that not all retailers are doing this, but it does appear many believe it's necessary:

Eleven of the 30 retailers approached by The Mail on Sunday said they would have to inform buyers if gifts they had bought were returned.

The article does quote some "data protection" officials saying that retailers don't need to do this, but at the very least it highlights the same thing we keep pointing out about the GDPR and other attempts to regulate the internet. When these grand sweeping regulations are written in ways that are so vague and broad -- with such massive punishment for getting things wrong -- no one should be surprised when the end result is utterly ridiculous.