Just As The Copyright Office Tries To Ignore The Problem Of Bad Takedowns, NBC & Disney Take Down NASA's Public Domain Space Launch

from the copyright-censorship dept

The recent Copyright Office report on Section 512 of the DMCA (the notice and takedown provisions) has been frustrating on many levels, including the fact that it simply ignores that the public is a stakeholder (actually the main stakeholder) in copyright policy. But one of the most frustrating parts of the report is that it ignored a ton of testimony (including some provided by me) about how frequently the 512 notice-and-takedown process is abused (either on purpose or accidentally) to take down non-infringing content. The Copyright Office acts as if this is a fringe issue, when the data suggests it's a massive problem impacting millions.

And just to put a pretty fine point on it, you probably heard about or (hopefully) saw the launch this weekend of the SpaceX Dragon capsule, with the first private manned mission to space, that was done in conjunction with NASA. It was pretty cool, and a ton of people tuned in to watch it live. Of course, many also tuned in the previous Wednesday to try to watch the original planned launch, before it got scrubbed due to weather. NASA had a wonderful live stream going for both (which I watched). And works produced by NASA are in the public domain -- which is why many other broadcasters were easily able to use them as well.

But because the numbskulls at NBC Universal work with the default mindset that everything must be owned, and if everything must be owned, then obviously anything that NBC Universal broadcasts must be owned by NBC Universal, it made bogus copyright claims on a ton of others using NASA's footageincluding NASA itself leading to NASA's own public domain video being blocked on NASA's own YouTube page.

Nice work, copyright!

And, that's not all. Having dealt with a bogus claim on Wednesday, one would hope that people would get their shit together for the actual launch on Saturday and the docking on Sunday. No such luck. Because for Saturday's launch, National Geographic, a property owned by Disney, did the same thing:

The end result is that people going to NASA's own feed to try to watch some of the launch/flight/docking got to see things like this:

Now, to be clear, these appear to have been a ContentID claims, which are sort of the ugly cousin of a DMCA 512 notice-and-takedown, but it's the same basic principle. Copyright is abused constantly, every single day, to censor the speech of people. Sometimes in absurd ways like this, but often in serious and significant ways as well.

That the US Copyright Office doesn't see this or doesn't think it is a problem is a travesty and calls into question the credibility of the entire 512 report.

Filed Under: copyright, public domain, space launch, takedowns
Companies: disney, nasa, national geographic, nbc, nbc universal, youtube

Facebook's Oversight Board Can't Intervene, So Stop Asking

from the find-the-money-card dept

As Facebook employees stage a digital walk-out and make their thoughts known about the social media giant’s choice to not intervene in any way on “political posts”, especially those of President Donald Trump, some have called for the newly-created Oversight Board to step up and force a change in Facebook. While the official answer is that they can’t start (because supposedly they haven’t given out laptops yet), the real and very simple reason why the Facebook Oversight Board won’t get involved is because it can’t. It’s not created to function that way, it’s not staffed for something like this, and ultimately, due to its relationship with Facebook, anything it would say on this matter right now would be taken in an advisory capacity at best. Facebook, understandably not wanting to actually give any of its power away, played confidence games with the idea of external, independent oversight, and it’s clear that they fooled a lot of people. Let me explain. 

In three-card-monte, the huckster keeps shuffling three playing cards until the victim is likely to guess wrong on where the “money card” may be hiding, and proceeds to flop the cards one by one. For Facebook’s prestidigitation on content moderation, last month’s announcement of the initial 20 highly-regarded experts tapped as members for its independent oversight board is the second card flop, and predictably, the money card is not there. 

The ongoing sleight of hand performed by Facebook is subtle but fundamental. The board was set up as truly independent, in every way, from member to case selection and to the board’s internal governance. In terms of its scope and structure, it is guided by previously-released bylaws to primarily handle a small set of content removal cases (which come up to the board after exhausting the regular appeals process), and dictate Facebook to change its decisions in those cases. To a much lesser extent, the Board can, although time and resources are not allocated for this, provide input, or recommendations about Facebook’s content moderation policies, however, Facebook is not obligated in any way to follow those policy recommendations, but to simply respond in 30 days and talk about any action it may take.

In the pages of the San Francisco Chronicle’s Open Forum, and elsewhere, I and others have called attention to this empty action as far back as September 2019, at the first card flop, the public release of the Board’s charter and bylaws. The project continued unabated and unchanged as friendly experts extolled the hard work of the team and preached optimism. Glaring concerns over the Board’s advisory-at best, non-binding overall power, not only weren’t addressed, but actually dismissed by cautioning that board member selection, last month’s flop, would be where the money card is. Can you spot the inconsistency? It doesn’t matter if you have the smartest independent advisors if you’re not giving them the opportunity to actually impact what you do. Of course, the money card wasn’t there.

In early May, the Menlo Park-based company released the list of its Oversight Board membership, with impressive names (former heads of state, Nobel Prize laureates and subject matter experts from around the world). Because the Board is truly independent, Facebook’s role was minimal, beyond coming up with said structure and bylaws with the consultation of experts from around the world (full disclosure: the author was also involved in one round of consultations in mid 2019), it only directly chose the 4 co-chairs who then were heavily involved in the choice of the other 16 members. A lot of chatter around this announcement focused, predictably, on who the people are; is the board diverse; is it experienced enough, etc, while some, have even focused on how independent the board truly is. As the current crisis is showing, none of that matters.

As we witness the Board’s institutionalized, structural and political inability to perform oversight it is becoming entirely clear that Facebook is not, at all, committed to fixing its content moderation problems in any meaningful way, and that political favor is more important than consistently applied policies. There is no best case scenario anymore as the Board can only fail or infect the rest of the industry. And what is a lose-lose for all of us will likely still be a win-win for Facebook.  

The bad case scenario is the likeliest: the Board is destined to fail. While Zuckerberg’s original ideas of transparency and openness were great on paper, the Board quickly turned into just a potential shield against loud government voices (such as Big Tech antagonist Sen. Hawley). Not only is that not working, Sen. Hawley responded to the membership list with even harsher rhetoric, but the importance placed on the optics versus the reality of solving this problem is even more obvious now. Giving the Board few, if any, real leverage mechanisms over the company can at most build a shiny Potemkin village and not an oversight body. If we dispense with all the readily-available evidence to the contrary, and give Facebook the benefit of the doubt that it tried, the alternative reasons for this rickety and impotent construction are not much better. It may be because giving a final say over difficult cases, the Board’s main job, is not something Facebook was comfortable with doing by itself anyway (and who can blame them given the pushback the platform gets with any high-profile decision). Or it may be because of a bizarre allegiance to the flawed constitutional law perspective that Facebook can build itself a Supreme Court, which makes the Board act as an appellate court of sorts, with a vague potential for creating precedent rather than truly providing oversight. 

If the Board’s failure doesn’t tarnish the perspective of a legitimate private governance model for content moderation, there’s a lot to learn on how to avoid unforced errors. First, we can safely say that while corporations may be people, they are definitely not states. Creating a pseudo judiciary without any of the accouterments of a liberal-democratic state, such as a hard-to-change constitution, co-equal branches and some sort of social contract is a recipe for disaster. Second is a fact that theory, literature and practice have long argued: structure fundamentally dictates how this type of private governance institution will run. And with an impotent Board left to mostly bloviate after the fact, without any real means to make changes to the policies themselves, this structure clearly points to a powerless but potentially loud “oversight” mechanism, pushed to the front, as a PR stunt, but unequipped to deal with the real problems of the platform. Finally, we see that even under intense pressure from numerous and transpartisan groups, and a potential openness to fixing a wicked problem, platforms are very unwilling to actually give up, even partly, their role and control in moderating content, but will gladly externalize their worst headaches. If their worst headaches were aligned with the  concerns of their users, that would be great, but creating “case law” for content moderation is an exercise in futility, as the company struggles to reverse-engineer Trump-friendly positions with its long-standing processes. We don’t have lower court judges who get to dutifully decide whether something is inscribed in the board’s previous actions. We have either underworked, underpaid and scarred people making snap decisions every minute, or irony and nuance illiterate algorithms who are poised to interpret these decisions mechanically. And more to the point, we have executives deciding to provide political cover to powerful players rather than enforce their own policies, knowing full well they’re not beholden to any oversight, since even if already up and running, by the time the Board ruled on this particular case, if ever, the situation would have since no longer been of national importance.

As always, there still is a solution. The Oversight Board may be beyond salvaging, but the idea of a private governance institution, where members of the public, civil society, industry and even government officials, can come together and try to reach a common ground for what the issues are and what the solutions might be, should still flourish, and should not be thrown away simply because Facebook’s initial attempt was highly flawed. Through continued vigilance and genuine, honest critiques of its structure and real role in the Facebook ecosystem, the Oversight Board can, at best, register as just one experiment of many, not a defining one, and we can soldier on with more diverse, inclusive, transparent, and flexible, industry-wide dialogues and initiatives.

The worst case scenario is if the Board magically coasts through without any strong challenge to its shaky legitimacy, or its impotent role. The potential for this to happen is there, since there are more important things in the world to worry about than whether Facebook’s independent advisory body has any teeth. In that case Facebook intends to, one way or another, franchise it to the rest of the industry. And that would be the third, and final flop. However, as I hope you figured it out by now, the money card wouldn't be there either. The money card, the card that Facebook never actually intended on giving away or even showing us, the power over content moderation policies, was never embedded in the structure of the board, its membership or any potential industry copycats that could legitimize it. This unexpected event allowed us to take a peek at the cards, the money card is still where it was all along, in Facebook’s back pocket.

David Morar is Associate Researcher at the Big Data Science Lab at the West University of Timisoara, Romania

Filed Under: content moderation, donald trump, facebook oversight board, governance, mediation, oversight board
Companies: facebook

Daily Deal: The Ultimate Learn To Play Piano Bundle

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

The Ultimate Learn To Play Piano Bundle has 10 courses designed to take your music skills from beginner to advanced. You'll learn Music Theory, how to read and write music, how to play chords and chord progressions. You'll also learn about how to compose melodies, how to train your ears to recognize different types of chords and keys, and much more. It's on sale for $35.

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

Filed Under: daily deal

New Study Finds No Evidence Of Anti-Conservative Bias In Facebook Moderation (If Anything, It's The Opposite)

from the there-we-go dept

Over the last few months, it's been weird to watch how any time we point out that there's no actual evidence of anti-conservative bias in the content moderation practices of social media, some in our comments absolutely lose their shit. One commenter, has been on a rampage in just the last week to declare me an evil liar for refusing to admit the "obvious" fact that there's anti-conservative bias in moderation. However when I and others ask these people for that evidence, it never seems to show up.

I imagine they are not going to like this story either. A new study from CrowdTangle, a data analytics firm that is owned by Facebook, and has access to Facebook data, seems to suggest that if there's any bias, it goes the other way:

In fact, according to CrowdTangle, a data-analytics firm owned by Facebook, content from conservative news organizations dominates Facebook and often outperforms content from straightforward news organizations.

Additionally, over the last month on Facebook, Trump has captured 91% of the total interactions on content posted by the US presidential candidates, according to CrowdTangle. Biden has captured only 9%.

And if the moderation efforts are designed to harm conservative media, it doesn't seem to be working:

Over the last month, the top performing news organization in the US was Fox News, a conservative network which largely echoes the Trump White House's messaging.

Fox News captured 13% of all interactions among US news organizations with more than 29 million likes, comments, and shares, according to CrowdTangle.

The second top performing page belonged to Breitbart, a right-wing website that is largely supportive of the President and has close ties to the White House. Its Facebook page accounted for 9% of the total US media interactions over the last month with more than 20 million likes, comments, and shares.

And in just looking at "political pages" the data again shows a lean towards more conservative pages:

Ben Shapiro, the prominent conservative news personality, generated more than 25 million interactions over the past month on his page, accounting for 29% of the total share from US political media on Facebook, according to CrowdTangle.

The second top US political media page belonged to Breitbart, with 23% of total interactions.

Other conservative outlets in the top 10 for US political media over the last month: The Western Journal in fifth with 4% of the total interactions; TheBlaze in seventh with 3% of the total interactions; IJR in eight with 2% of total interactions; and the Washington Examiner in ninth with 2% of interactions.

Now, does this mean that Facebook has an "anti-liberal bias"? No. It's just how these things shake out in the end and how Facebook's algorithms work. Though, this data suggests, at the very least, one of the key reasons why the Trumpist crowd keeps resorting to the false narrative of bias: it's working the refs to make sure that they get these kinds of results.

Filed Under: anti-conservative bias, bias, content moderation
Companies: facebook

AT&T's Streaming Headaches Continue As Contract Feuds Keep New TV Service Off Amazon, Roku

from the meet-the-new-boss dept

So we've noted repeatedly how AT&T's entry into the video space hasn't gone according to plan. First, the company spent so much money on mergers ($150 billion for Time Warner and DirecTV) in recent years, it effectively crippled itself with debt. Second, the company passed that merger debt on to most of its customers in the form of price hikes, which defeated the whole point of "cutting the TV cord." Third, AT&T launched so damn many confusing streaming brands simultaneously, it even confused the company's own employees.

Collectively, this resulted in AT&T losing 3.43 million TV subscribers last year alone, which certainly wasn't the kind of sector domination executives originally envisioned.

And there's every indication that things might get worse.

As noted, AT&T already offers a very confusing array of TV services: HBO Go, HBO Now, AT&T Now, AT&T TV, AT&T WatchTV, AT&T U-verse (IPTV) and DirecTV (satellite). Last week the company launched yet another streaming platform, HBO Max. But there's trouble in paradise: because of contractual standoffs with Amazon and Roku, the service apparently won't be appearing on either platform at launch. Given Roku is the most popular streaming hardware in America by a pretty wide margin (39% market share in 2019), that's kind of a problem for AT&T:

"Because of unresolved contractual agreements, anyone who has subscribed to HBO through Amazon, Roku, Comcast or a few other partners will be missing out on all that new content. And while HBO Now is effectively being phased out this week, the network will have to keep HBO Go up and running as a zombie service to give Comcast customers a way to stream.

All of this is more than just a branding nightmare. It's also a reminder of how hard it is for even a big network like HBO to transition to streaming. Pundits have long focused on the growing competition within the industry, dubbing it the "streaming wars." However, some of the most consequential conflicts in this new age of television aren't between Netflix, HBO and Disney, but between the streaming services and the tech companies that have quickly become the new intermediaries, controlling the platforms and devices that deliver movies and TV shows to our homes.

It's interesting to see the tables turned on AT&T, a company routinely used to being in the driver's seat. With Roku now so dominant, AT&T now has to deal with dominant gatekeepers to get its content and services seen on platforms, and so far it's not going particularly great. AT&T had already been in a stand off with Roku that involved the company's creatively-named AT&T TV Now service going dark on all Roku devices. That standoff has now extended to HBO Max, which was supposed to be AT&T's attempt at turning its subscriber losses around.

And while a Roku deal is supposedly getting closer, AT&T remains in a standoff with Amazon over licensing that seems more intractable, given Amazon currently takes a 30-50% cut of HBO subscribers via its "channel" approach to offering other platforms' content:

"Roku is said to be close to a deal, but WarnerMedia has been unable to come to an agreement with Amazon. The ecommerce giant has been distributing HBO online through Amazon Channels, a dedicated marketplace for subscription video services that is tightly integrated into streaming adapters and smart TVs running Amazon's Fire TV platform. Prime Video subscribers can easily add HBO with a few button taps of their Fire TV remote."

So in many ways, the kind of annoying content licensing and retransmission feuds (and annoying blackouts) we saw with traditional cable TV have only simply evolved in the streaming era. But AT&T now finds itself without the kind of power it enjoyed in telecom, where competition is virtually nonexistent and government routinely protected it from the faintest whiff of failure. Even AT&T's attempt to tilt the playing field in its favor to gain leverage in the streaming wars via the net neutrality repeal (ensuring AT&T's unnecessary broadband caps only apply to a competitor's service) isn't likely to help here.

AT&T can probably still right the ship, consolidate its confusing brands, and strike new deals in time. But it's still frequently entertaining to see broadband giants try to compete and innovate after decades of being government pampered monopolies. More often than not, the end result of that steep learning curve (see Verizon's Go90) isn't particularly pretty. Meanwhile, these kinds of standoffs will only lead to frustration and higher piracy rates, which these companies will then blame on everything but themselves a few years from now.

Filed Under: competition, contracts, streaming, video
Companies: amazon, at&t, roku

Corporate Sovereignty Lawyers Prepare To Sue Governments For Bringing In Measures To Tackle COVID-19 And Save Lives

from the priorities,-priorities dept

Regular readers of Techdirt will be all too familiar with the problem of corporate sovereignty -- the ability of companies to sue entire countries for alleged loss of profits caused by government action. Also known as investor-state dispute settlement (ISDS), there have been indications that some countries are starting to drop ISDS from trade and investment treaties, for various reasons. But a worrying report from Corporate Europe Observatory suggests that we are about to witness a new wave of corporate sovereignty litigation. Hard though it may be to believe, these cases will be claiming that governments around the world should be reimbursing companies for the loss of profits caused by tackling COVID-19:

In the midst of a crisis like no other, the legal industry is preparing the ground for costly ISDS suits against government actions that address the health and economic impacts of the coronavirus pandemic. In written alerts and webinars law firms point their multinational clients to investment agreements' vast protections for foreign investors as a tool to "seek relief and/or compensation for any losses resulting from State measures"

No claims have been filed yet, but experts are so worried about this threat that they have called for an immediate moratorium:

on all arbitration claims by private corporations against governments using international investment treaties, and a PERMANENT RESTRICTION on all arbitration claims related to government measures targeting health, economic, and social dimensions of the pandemic and its effects.

Law firms specializing in corporate sovereignty are already well advanced in their preparations for demanding money from governments because of the "damage" the pandemic response has inflicted on corporate profits. Corporate Europe Observatory links to numerous reports and client alerts from these ISDS firms, which spell out the grounds on which big claims might be filed. These include:

ISDS claims against government action to provide clean water for hand-washing

Challenging relief for overburdened public health systems

Lawsuits against action for affordable drugs, tests and vaccines

Investor attacks on government restrictions for virus-spreading business activities

ISDS suits against rent reductions and suspended energy bills for those in need

Disputes over debt relief for households and businesses

Legal action against financial crises measures

Tax justice on trial

Suing governments for not preventing social unrest

The idea that governments around the world struggling to contain the pandemic and save thousands of lives might also have to fight such ISDS claims in court, and even pay out billions in fines when funds are needed for rebuilding lives and businesses, is bad enough. But the fact that law companies evidently have no qualms about recommending the use of corporate sovereignty in these difficult circumstances is a hint of even worse to come.

If these kinds of ISDS actions succeed, and governments are ordered to make huge payments to companies because of national pandemic responses, it is highly likely that similar cases could and would be brought over action to tackle climate change. That in itself might discourage some countries from adopting urgently needed measures. And for those that do, there is the prospect of big fines at just the time when maximum resources will be needed to deal with the environmental, social and economic effects of a climate catastrophe.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: corporate sovereignty, covid-19, isds, lawsuits, pandemic

Securus Quietly Settles Lawsuit Over Illegally Spying On Inmate Attorney Conversations

from the dainty-little-wrist-slaps dept

We've noted repeatedly how interstate inmate calling service (ICS) companies have a disturbingly cozy relationship with government, striking (technically buying) monopoly deals that let them charge inmate families $14 per minute. Worse, some ICS companies like Securus Technologies have been under fire for helping the government spy on privileged inmate attorney communications, information that was only revealed in 2015 after Securus was hacked. Given the apathy for prison inmates and their families ("Iff'n ya don't like high prices, don't go to prison, son!") reform on this front has been glacial at best.

The 2015 Hacker-obtained data featured 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note were the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about,” said David Fathi, director of the ACLU’s National Prison Project. “A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."

Two former prisoners and a criminal defense attorney sued Securus for the practice, and last week Securus quietly settled that suit (pdf) after spending years insisting that the recording of privileged calls was a system error. While the company promised to improve its lax use of call recording technology, most of the more significant demands were stripped from the final settlement:

"The lawsuit had sought $5,000 for anyone whose conversation was wrongly recorded – resulting in a damages payout as high as $70m – though the class action's lawyers ultimately dropped the demand after the courts repeatedly ruled against them on what they needed to prove to win the case. A US federal judge in San Diego decided the lawyers would have to prove that Securus intended to record the privileged calls. They appealed the decision, and the Ninth Circuit refused to hear the case."

Securus has promised to cover attorney costs of $840,000 and $20,000 to each of the class representatives while denying any wrongdoing.

Granted this is just one small subset of the problem that is Securus' cozy, monopolized relationship with the US law enforcement and prison apparatus, which in addition to aggressively overcharging inmate families for 20 years, has also resulted in scandals relating to the abuse of sensitive location data obtained from mobile carriers. That scandal also resulted in some performative wrist slaps and a few pinky swears as US lawmakers and regulators, with very few exceptions, continue to look the other direction.

Filed Under: attorney client privilege, conversations, inmates, phone records, prisons, surveillance
Companies: securos