Funniest/Most Insightful Comments Of The Week At Techdirt

from the say-what dept

This week, our first place winner on the insightful side is Bloof with some thoughts about Rupert Murdoch's antitrust hypocrisy:

Rupert Murdoch is also against socialism, while pushing for laws in Australia so more successful companies are forced by the government to give his media empire free money.

Rupert Murdoch is against socialised medicine, yet bolted to the UK the moment the Covid Vaccine was made available to his agegroup, shot to the head of the line thanks to his political connections, getting the vaccine before the Queen.

Rupert Murdoch is happy to push antivax BS, yet... See above.

Rupert Murdoch has built his fortune on decrying others as sex offenders and criminals while defending criminals and sex offenders if they make him money or agree with him politically and are still of use.

Rupert Murdoch is a hypocrite and a cancer on western civilisation. Decades after his death, we will still be working out the true extent of the damage his malignant influence has done to the world.

In second place, it's another comment about Rupert Murdoch, this time from That One Guy responding to an Australian official's admission that he came up with the link tax idea and yet it somehow wasn't a favor for him:

'... I don't see it'

'Sure it was proposed by him, and will result in a whole bunch of money being funneled to him with no effort on his part, and it's set up so that if his demands aren't met the government will step in and bring the hammer down and force the other side to pay him, but that doesn't mean it's the government favoring him or anything!'

For editor's choice on the insightful side, we've got another comment about the link tax, from an anonymous commenter responding to the oft-floated idea that internet giants should cut Australia off in response:

Facebook tried that and the idiots decried it as Zuckerberg censorship. It's a lose lose situation either fighting it or going with it. Our tech policy debate have been hijacked by idiots.

Next, it's another anonymous commenter translating a description of the FBI's practices as "warrantless acquisition of other people's property":

Better known as theft.

Over on the funny side, our first place winner is Bobvious with another comment about Murdoch:

In other News

Murdoch Horse and Buggy Company sues Tesla, Demands a Man with a Red Flag Walk in front of them.

In second place, it's Rocky answering another commenter's question about whether or not Devin Nunes claims to have a cow:

I'm mostly surprised the judge didn't have one.

For editor's choice on the funny side, we start out with an anonymous comment about the recent big push for new antitrust legislation and its glaring omissions:

I'm surprised there wasn't a "or owns a themepark" exemption in there too.

Finally, it's Bobvious again with a comment about music copyright issues for video game streamers:

Wait a minute

Isn't everyone going to get DMCA'd by the estate of John Cage for having 4'33'' on endless replay during the streams?

That's all for this week, folks!

This Week In Techdirt History: June 13th - 19th

from the the-style-at-the-time dept

Five Years Ago

This week in 2016, we were learning more about the scope of Peter Thiel's attack on Gawker (and the further exploits of his laywer...) while Gawker was exploring a questionable legal counterattack. The issues with corporate sovereignty in trade agreements were getting more mainstream attention while the paperback version of Hillary Clinton's memoir removed text about her support fro the TPP. Europe was getting ready to create a link tax just as its top court was confirming that copyright levies don't work. An appeals court handed a big loss to record labels in their attack on Vimeo over lipdub videos, while Twitter, Facebook and Google were hit with claims of material support for terrorism following the Paris attacks.

Ten Years Ago

This week in 2011, while some websites were playing pranks by pretending their domains had been seized by ICE, several of the sites that were actually targeted were challenging the seizures — and notable target Rojadirecta sued the US government, Homeland Security, and ICE. But ICE was still stalling on FOIA requests seeking more information about the seizures. And at the same time, China was getting in on the website seizure game while using copyright infringement as an excuse. Meanwhile, a judge was threatening sanctions while tossing out a Righthaven lawsuit, and the Denver Post was sued over its considering taken action, leading Righthaven to threaten them with more suits.

Fifteen Years Ago

This week in 2006, we were bracing for the onslaught of political spam, and also for the inevitable freakout about mobile social media, while rolling our eyes at the latest panic about violent video games. We took a look at how the recording industry had Canadian politicians in its pocket, while the RIAA seemed to be reaching the denial stage of its war on piracy (and opening up a new front by sending out cease-and-desist letters to people dancing to music on YouTube). And while we were glad to see Congress starting to recognize the problem of patent trolls, we were not so optimistic about Rep. Lamar Smith's approach to combating them.

Filed Under: history, look back

Cop Who Led Strike Team Into Wrong House During Drug Raid Granted Immunity By Eleventh Circuit

from the no-precedent-set-so-cops-are-free-to-do-this-same-thing-again dept

In February 2018, 24 armed officers from the Flint Circuit Drug Task Force engaged in the raid of a McDonough, Georgia house. Led by Captain David Cody, the officers deployed flash-bang grenades and forced their way through the door of the house at 303 English Road. Inside, they found only Onree Davis, the 78-year-old owner of the house.

Unfortunately for Davis, who was sitting innocently and non-drug-dealerly in his own home watching the news when it was raided, the task force was supposed to be raiding 305 English Road. But officers on the scene felt the house at the correct address (the same one they'd been investigating and surveilling on-and-off for two years) was "uninhabitable" and decided to try their luck at the house up the street.

Even more unfortunately for Davis, the courts have decided every officer involved in the wrong house raid is protected by qualified immunity. The latest blow to common sense and professional decency comes courtesy of the Eleventh Circuit Court of Appeals, which says the last officer whose immunity was still in question (Captain David Cody) is no longer in question. (via Reason)

The lower court granted Cody immunity for leading the raid to the wrong address, despite the houses having different paint colors, different items in their yards, and different numbers of their houses. The Eleventh Circuit affirms [PDF] all of this, even though Capt. Cody admitted he failed to apprise himself of all the pertinent facts before leading a task force on a violent raid.

Capt. Cody testified that he reviewed the search warrant to make sure it was signed, confirmed it authorized no-knock entry, and confirmed the address matched the address used in the PowerPoint presentation, but admitted that he did not read it “all the way through.”

Not that Capt. Cody was especially careless. The footnote attached to this paragraph makes it clear SWAT team participants are generally more concerned about topping off on bullets and grenades than eyeballing the paperwork that grants them permission to temporarily bypass Fourth Amendment protections.

For the first time in Norris’s reply brief, he argues that whether Capt. Cody read the search warrant is a disputed fact based on Agent Hicks’s testimony that he did not recall any other officers asking to look at the search warrant during the briefing.

I guess this lack of preparedness makes it easier for officers to claim they had to "react" to "rapidly-changing situations" after they've violated some rights. After all, if you can't be bothered to appraise yourself of the specifics of the situation you'll soon be facing, you're bound to be surprised or confused and almost certainly "fear for your safety" when you're right in the thick of it.

A N Y W A Y...

Back to the case.

So, the unprepared Capt. Cody led an unprepared task force into the house of the especially unprepared 78-year-old Onree Davis. But the court says this is fine and worthy of immunity because Cody's task force moved fast and broke stuff, making it more difficult to prevent themselves from acting in error.

Capt. Cody and the other officers involved carefully planned a high-risk raid at what was thought to be a dangerous target house but made a mistake when faced with an unexpected circumstance—the residence not matching the description given. The team was especially limited in their ability to respond to this unexpected circumstance because they had “announced” their presence with flash grenades, it was unsafe to communicate via radio, and they were forced to make a split second decision.

The most charitable reading is that the Eleventh Circuit thinks it's unfair to ask cops to think on their feet when conducting raids that could result in injuries or death. Once a raid is underway, the only way out of it is through it, even if "through" means breaking down the door of the wrong house and pointing guns at a person suspected of nothing.

My uncharitable reading is that this encourages officers to immediately make as much noise as they can when conducting raids because once the "presence" is "announced," they're clear to do whatever they want until they feel the scene is "secure." Cause enough chaos and it will be tough to prove an officer knew better than to do whatever unconstitutional thing they did because what reasonable person could think clearly with all of this [gestures at flashes/bangs] going on.

Capt. Cody armed himself with ignorance and explosives and that's enough for the court to give him permission to duck out of this lawsuit.

While the mistaken raid of Norris’s home was no doubt traumatic, given the significant factual differences between Capt. Cody’s actions in the raid and our prior precedent, we agree with the district court that Norris failed to meet his burden to show that Capt. Cody violated clearly established law.

That's how it ends for the man who suffered this violation of his Fourth Amendment right to be free from unreasonable searches and seizures. All twenty-four officers who participated have been granted immunity and are free to go. And with no declaration that this sort of thing violates rights, officers in this circuit are free to make these same mistakes again without worrying about being held accountable.

Filed Under: 11th circuit, cody davis, flint circuit drug task force, georgia, mcdonough, onree davis, qualified immunity, swat teams

Elon Musk's 'Next-Gen' Broadband Service Is Overheating In The Arizona Desert

from the reinventing-the-wheel dept

As we've noted a few times, SpaceX's Starlink service will be a massive improvement for the up to 42 million Americans that lack access to broadband. The ongoing 10,000 user beta is delivering speeds between 50 and 150 Mbps at low latencies, something that's much better than the expensive, slow, high-latency, usage-capped traditional satellite broadband service most people hate.

That said, early reviews have also showcased how the service isn't going to be quite the miracle some Elon Musk fans are expecting. And this week complaints bubbled up among Starlink beta participants that their service dishes have been overheating in the summer sun:

"But according to user complaints on Reddit, the Starlink satellite dish user terminal, affectionately dubbed “Dishy McFlatface” by SpaceX, is experiencing temperature issues for some users. Reddit user SocietyTomorrow stated that his broadband connection shut down at noon in the Arizona Summer sun, only to kick back on again after being sprayed with a hose.

"I did submit a ticket and they only said it will shut down at 122 [degrees],” the user wrote. “Sadly tomorrow will be 122, and Wednesday will be 123. Dishy is already out at 112 so [I’m] gonna be quiet at home while I work out a solution."

To be clear this is the kind of stuff betas are for. It's not clear that this is happening at any scale (SpaceX/Starlink wouldn't comment). I spoke with an engineer that has dissected Dishy, and he suggested that fixing the satellite dish's heat issues, while very likely, could take some time:

"Since they've got a lot of custom silicon in there—likely the limiting factor—the turnaround time on this would be very slow,” he added. “They could resort to some form of active heat removal like fans or thermoelectric cooling, but then they burn a ton of power which would make Dishy even more power hungry than it already is."

“This is a really tricky engineering problem with some insanely tight constraints,” Keiter said. “The good news is that the team is pretty sharp."

But even if engineers resolve the heat problem, Starlink isn't likely to have quite the impact many people think. Wall Street estimates indicate that limited capacity (aka the laws of physics) means the service will likely be able to serve around 300,000 to 800,000 users with its initial fleet of around 12,000 satellites. That's around 1% of the U.S. broadband market. Even on the very optimistic end, with 42,000 low orbit, upgraded satellites feeding 60 Gbit/s each several years from now, 6 million users is the max number of potential customers, and those will mostly be rural, boat, or RV users that can afford it.

And this ignores Starlink's negative impact on night sky research (which US regulators certainly are). And the fact that in a post net neutrality world, the service is likely to eventually impose odd caps and throttling restrictions to manage capacity. And the fact that at $600 for the first month, it's not really going to be a service for the tens of millions of Americans that lack access due to affordability. And some of the quirky line of sight issues indicated in early reviews.

Fiber networks of course don't suffer from any of these restrictions, which is why many in telecom circles argue that if you're going to subsidize broadband, you should be subsidizing future-proof broadband without odd caveats and constraints. It's also why consumer groups have been a bit disgusted at the fact that the FCC recently threw at $886 million at billionaire Elon Musk so he could deliver Starlink broadband to some traffic medians and a few already served airports. Again, Starlink will provide some help to the uncompetitive US broadband market, but a miraculous US broadband market disruptor it's not.

Filed Under: overheating, satellite broadband, starlink
Companies: spacex

15 Universities Have Formed A Company That Looks Remarkably Like A Patent Troll

from the feeding-the-trolls dept

Imagine this: a limited liability company (LLC) is formed, for the sole purpose of acquiring patents, including what are likely to be low-quality patents of suspect validity. Patents in hand, the LLC starts approaching high-tech companies and demanding licensing fees. If they don’t get paid, the company will use contingency-fee lawyers and a litigation finance firm to make sure the licensing campaign doesn’t have much in the way of up-front costs. This helps give them leverage to extract settlements from companies that don’t want to pay to defend the matter in court, even if a court might ultimately invalidate the patent if it reached the issue.

That sounds an awful lot like a patent troll. That’s the kind of entity that EFF criticizes because they use flimsy patents to squeeze money from operating companies, rather than making their own products. Unfortunately, this description also applies to a company that has just been formed by a consortium of 15 large research universities. 

This patent commercialization company has been secretly under discussion since 2018. In September 2020, it quietly went public, when the University of California Regents authorized making UC Berkeley and UCLA two of its founding members. In January, the DOJ said it wouldn’t challenge the program on antitrust grounds. 

It’s good news when universities share technology with the private sector, and when startup companies get formed based on university research. That’s part of why so much university research is publicly funded. But there’s not much evidence that university patenting helps technology reach the public, and there’s a growing body of evidence that patents hinder it. Patents in this context are legal tools that allow someone to monopolize publicly-funded research and capture its promise for a private end.

While larger tech companies can absorb the cost of either litigating or paying off the patent assertion entity, smaller innovators will face a much larger burden, proportionately. That means that that the existence of this licensing entity could harm innovation and competition. When taxpayers fund research, the fruits of the research should be available for all. 

With 15 universities now forming a consortium to license electronics and software patents, it’s going to be a mess for innovators and lead to worse, more expensive products.

Low-Quality Patents By The Bundle 

Despite the explosion in university patenting and the growth of technology transfer offices (essentially university patent offices), the great majority of universities lose money on their patents. A 2013 Brookings Institute study showed that 84% of universities didn’t make enough money from their patents to cover the related legal costs and the staffing of their tech transfer office. Just a tiny slice of universities earn the majority of patent-licensing revenue, often from a few blockbuster pharmaceutical or biotech inventions. As many as 95% of university patents do not get licensed at all.  

This new university patent licensing company won’t be getting any of the small number of impressive revenue-producing patents. The proposal sent to the UC Board of Regents explains that the LLC’s goal will be to get payment for patents that “have not been successfully licensed via a bilateral ‘one patent, one license’ transaction.” The universities’ proposal is to start by licensing in three areas: autonomous vehicles, “Internet of Things,” and Big Data. 

In other words, they’ll be demanding licensing fees over lots and lots of software patents. By and large, software patents are the lowest quality patents, and their rise has coincided with the rise of large-scale patent trolling.  

The university LLC won’t engage in the type of patent licensing that most actual university spinoffs would want, which are typically exclusive licenses over patents that give it a product or service no one else has. Rather, “the LLC will focus on non-exclusive sublicenses.” In other words, they’ll use the threat of litigation to attempt to get all competitors in a particular industry to pay for the same patents. 

This is the same model pursued by the notorious Intellectual Ventures, a large patent troll company that convinced 61 different universities to contribute at least 470 different patents to its patent pool in an attempt to earn money from patents. 

What about the Public Interest? 

The lawyers and bureaucrats promoting the UC patent licensing scheme know how bad this looks. Their plan is to use patents as weapons, not tools for innovation—exactly the method used by patent trolls. In the “Pros and Cons” section of the memo sent to the UC Regents, the biggest “Con” is that the University of California “may incur negative publicity, e.g., allegations may arise that the LLC’s activities are tantamount to a patent troll.” That’s why the memo seeks to reassure the Regents that “it is... the expectation that no enforcement action will be undertaken against startups or small business firms.” This apparently nonbinding “expectation” is small comfort. 

The goal of the patent-based LLC doesn’t seem to be to share knowledge. If the universities wanted to do that, they could do it right now. They could do it for free, or do it for a contracted payment—no patents required. 

The real goal seems to be finding alleged infringers, accusing them, and raising money. The targets will know that they’re not being offered an opportunity—they’ll be under attack. That’s why the lawyers working with UC have promised the Regents that when it comes time to launch lawsuits against one of the “pre-determined targets,” they will steer clear of small businesses. 

The university LLC isn’t going to license their best patents. Rather, the UC Regents memo admits that they’re planning to license the worst of them—technologies that have not been successfully licensed via a “one patent, one license” transaction by either UCLA or UC Berkeley. 

To be clear, universities aren’t patent trolls. Universities are centers for teaching, research, and community. But that broader social mission is exactly why universities shouldn’t go off and form a patent-holding company that is designed to operate similarly to a patent troll. 

Patents aren’t needed to share knowledge, and dealing with them has been a net loss for U.S. universities. Universities need to re-think their tech transfer offices more broadly. In the meantime, the UC Regents should withdraw from this licensing deal as soon as possible. Other universities should consider doing the same. The people who will benefit the most from this aren’t the public or even the universities, but the lawyers. For the public interest and innovation, having the nation’s best universities supply a patent-trolling operation is a disaster in the making. 

The fifteen members of the University Technology Licensing Program are expected to be: 

• Brown University
• California Institute of Technology (Caltech)
• Columbia University
• Cornell University
• Harvard University
• Northwestern University
• Princeton University
• State University of New York at Binghamton
• University of California, Berkeley
• University of California, Los Angeles 
• University of Illinois
• University of Michigan
• University of Pennsylvania
• University of Southern California
• Yale University

Filed Under: patent trolling, patents, public interest, shakedowns, tech transfer, universities
Companies: uc berkeley, ucla

Devin Nunes' Family's Bizarrely Stupid Defamation Lawsuit Goes Off The Rails

from the wow dept

As you may recall, Rep. Devin Nunes has been involved in a bunch of totally frivolous SLAPP suits that seem designed to try to intimidate journalists from writing stories criticizing Devin Nunes. A key one that seems to have gotten deeply under Nunes' skin is an Esquire piece from a few years ago entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret written by reporter Ryan Lizza. In the fall of 2019 he sued over that article, and a few months later his family sued over it as well.

To say it hasn't gone well for Nunes would be an understatement.

As a reminder, the article claims that the "politically explosive secret" is just the fact that, despite Nunes repeatedly pitching himself as a California farmer, his family packed up the farm and moved it to Iowa a while back. Much of the article is about how they appear to have worked over time to try to hide that:

So here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa. Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007. Devin’s uncle Gerald still owns a dairy back in Tulare, which is presumably where The Wall Street Journal’s reporter talked to Devin, and Devin is an investor in a Napa Valley winery, Alpha Omega, but his immediate family’s farm—as well as his family—is long gone.

The article also discusses a bunch of other oddities about the Nunes' farm in Iowa, and while it never comes out and directly claims that the farm hires undocumented workers, it does note that most other farms in the area do. This point has become somewhat important in the case.

Devin Nunes' own part in the case is effectively over as the judge dismissed it last summer, pointing out absolutely nothing Nunes claimed was defamatory actually was defamatory (Nunes is appealing, because of course he is, but it's hard to see much of a chance of the case being reinstated). And while the judge had made it clear that the lawsuit by Nunes' family was on shaky ground, the Nunes' family and their lawyer, the infamous Steven Biss, decided to keep the case going.

The only claim that has survived in the case is the one where Nunes' family says it is defamatory due to the implication that the farm has employed undocumented workers. So, as would be expected, one of the things that Esquire's publisher, Hearst, wished to do was to depose the workers on the farm to establish their documentation. Last month, it became clear that something nutty was going on after Hearst filed quite a document with the court, about its efforts to depose the workers from NuStar farms. Much of the filing is redacted, but you can still get a sense of the frustration:

This Motion comes in the wake of an unusual and troubling series of events in this case, which were previewed for the Court during last week’s telephone conferences with Judge Roberts....

Reading through the details (and especially the declaration of one of Esquire's lawyers) strongly suggests (though the redactions make it a little tricky to parse out) that Biss has played games to try to keep NuStar's employees from giving depositions. This includes questions about whether or not Biss would accept service on behalf of those employees and also whether or not he would represent those employees.

Reading those links suggests the case was already turning into something of a clusterfuck, and apparently on Thursday it all blew up as the magistrate judge on the case benchslapped Biss and told him to stop playing games (first reported by the Fresno Bee, whose parent company was also sued by Nunes, and which has done some great reporting on these cases).

The order from the magistrate judge details what happened when Hearst's lawyers were finally able to depose the NuStar employees and... um... wow.

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

There are so many "wow" elements in there, and also plenty of things on the "these are things you should not do during a deposition" list. Just the fact that a judge would recount that in an order is kind of incredible, and suggests that the court is already both aware of and sick of Biss's antics.

The judge orders the employees from NuStar to actually comply with the subpoenas, and seems to suggest that Biss failed to inform the employees of their obligations under the subpoena until the morning of the deposition (another wow moment):

Although the subpoenas had been timely served and no objection was raised, apparently F.S.D. first learned of the deposition on the morning it was scheduled, he had not been shown the subpoena, and he did not appear with the requested documents.

So the court doesn't just order that the employees comply with the request to produce documents, but tells Biss to make sure that the employees are properly informed of them:

To avoid a repetition of this problem at upcoming depositions, Mr. Biss and any attorney retained for the employees will inform the employees of their obligation to search for the requested documents and bring the documents to the deposition, if they still possess them. Mr. Biss and any attorney retained for the employees will also advise the employees that the Court has ordered this production and employees may be asked about their efforts to comply at the deposition.

And then the magistrate judge addresses Biss's behavior. And you can tell he's not happy.

Defendants complain about Mr. Biss’s behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and “intended to call out the Defendants’ overt harassment of the NuStar employee.” (Doc. 107 at 10.) Mr. Biss’s further explanation on this issue is puzzling and troubling:

No effort was made to “signal to the witness how to answer questions” or to “coach[] the witness to testify in a certain way.” Counsel for the Defendants got answers to all his questions, including those about [F.S.D.’s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff’s counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs’ counsel.

(Id. (brackets in original).) During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. (Doc. 103-8 at 19 (Dep. pp. 66-67).) Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The judge notes that he can appoint a lawyer for the employees, but since Biss insists that "Jennifer" has been retained, for now he will resist the temptation to appoint them counsel. However, "if concerns arise about the exercise of independent judgment by the attorney replacing Mr. Allen, I may reconsider the necessity of appointing counsel."

It also concludes with this oddity:

Plaintiffs raised a related concern. Plaintiffs explained that they had not identified new counsel previously out of concern Defendants’ attorneys will contact the new lawyer to intimidate him or her or threaten ethics violations. (Doc. 107 at 8 n.5.) At the hearing, I expressed my belief that, if I were in the new lawyer’s shoes, I would welcome communications from counsel familiar with the case and the underlying documents as I prepared to independently evaluate my clients’ potential legal jeopardy.

So, once again, Biss's actions don't seem to be doing him any favors, yet haven't reached the point at which he gets sanctioned for his behavior either. Sometimes it truly is stunning how much leeway a court will give certain lawyers. Still, none of this is good for the Nunes family and their case.

Filed Under: california, deposition, devin nunes, esquire, iowa, nunes family, pleading the 5th, ryan lizza, steven biss
Companies: hearst, nustar farms

Daily Deal: Polar Unlimited Cloud Backup Storage

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

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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

No, 'Big Tech' Should Not Give 'Big Telecom' Billions Of Dollars For No Reason

from the we've-already-been-over-this dept

A few weeks back we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying for bandwidth, tech giants should pay him a troll toll. You know, just because.

The claim that technology giants (or anybody, really) gets a "free ride" when it comes to US telecom is farcical. Companies like Amazon, Google, and Netflix all pay billions of dollars in total for undersea cable runs, massive cloud storage, transit routes, and content delivery networks. Hell, Google is even a residential ISP. That's on top of the money consumers, businesses, and Silicon Valley giants pay for their own bandwidth, which in the US is often some of the highest in the developed world thanks to regional monopolization and captured regulators (precisely like Carr).

Carr's right about one thing: we need to reform the USF broadband subsidy system, heavily reliant on income from dying landline phones. But he's not actually coming at the issue in good faith. He's using that need for reform to help shovel yet more unearned cash at AT&T, a company that already gleaned billions in utterly pointless tax breaks, subsidies, and regulatory favors under Carr and Donald Trump's watch.

I've covered the telecom beat for twenty years of an adult life, and know what a captured regulator looks like when I see one. But despite the fact AT&T's argument is coming out of Carr's mouth, the press somehow keeps taking Carr's point earnestly. CNET recently took him at face value last week. This week it was Bloomberg's turn to promote Carr's idea that Google, Netflix, and Amazon should throw money at companies like AT&T for no damn reason:

"The pandemic has spotlighted the need for fast internet connections for schooling, work and health care and has emerged as an area of agreement as President Joe Biden and lawmakers of both parties grope for ways to support more broadband. Carr, in an interview, said one way to do that is by getting companies such as Amazon, Google and Netflix Inc. to pay. He cited “businesses that are benefiting from the modern network and paying virtually nothing."

Bloomberg oddly doesn't even challenge this argument that Google and friends "pay virtually nothing" for bandwidth, despite the billions upon billions they pay for...bandwidth. You literally can't stumble five feet without seeing some report about a major Netflix, Google, or Amazon investment in cloud storage, transit, undersea cables, or content delivery networks. Like CNET, Bloomberg also implies that Carr is having an original thought that AT&T just happens to agree with, when the underlying argument is actually AT&T's:

"AT&T Inc., the largest U.S. phone company by revenue, perked up when Carr laid out his plan in Newsweek.

“Hard to imagine successful reform that does not include some version of this proposal,” Hank Hultquist, vice president of federal regulatory for AT&T, said in a tweet. The company has advocated for appropriations from Congress -- an idea opposed by others who fear the subsidy may fall prey to annual funding fights.

Amazing. AT&T planted a dated, dumb argument in a Newsweek article with the help of a captured regulator, then continues to get major outlets to amplify it as if they are just some objective third party. Worse, Bloomberg somehow manages to get interim FCC boss Jessica Rosenworcel to give her tacit approval to socking tech giants with arbitrary troll tolls:

"Carr in a Newsweek editorial suggested lawmakers and regulators could set fees for web companies such as Google, Facebook, Apple Inc. and even Microsoft Corp. for Xbox gaming.

The call from Carr, a Republican, has drawn interest. “It’s an intriguing idea. And we’re going to need ideas,” FCC Acting Chairwoman Jessica Rosenworcel, a Democrat, told Bloomberg TV on June 11.

I know Rosenworcel is just being polite, but we just had a fifteen year fight (dubbed net neutrality) over applying arbitrary fees on websites and services, then throwing that money at telecom giants for no reason. Yes, the USF and broadband subsidy process needs reform. But that starts with fixing a broken FCC subsidy process that throws billions of dollars annually at politically powerful telecom companies that game the system. You'll notice this idea never quite crosses Carr's lips, in large part because such slush funds have historically been of immense benefit to AT&T and friends, his only real constituents.

Carr and AT&T's argument is popping up now because AT&T, Comcast, Verizon and friends want to pre-empt the Biden broadband plan (which promises to heavily fund local competitors and community broadband efforts) with their own alternative: have "big tech" throw billions at AT&T. AT&T strategy and policy folks want to exploit the justified political and public anger at big tech to seed an idea they've been pushing for literally twenty years now. That "big tech" is a bunch of mean freeloaders who should be funding telecom giants' perpetually unfinished network builds.

In reality you fix/fund US broadband infrastructure like you fund most of the rest of our neglected infrastructure: by actually taxing corporations and billionaires. You then fix the very broken (intentionally) broadband mapping and subsidy process, using that money to fund competitors that meaningfully challenge entrenched local monopolies. Said entrenched local monopolies don't want that sort of real reform, so instead we get this theater. Theater the unskeptical press then regurgitates because it apparently doesn't know how this game is played.

Filed Under: big tech, brendan carr, competition, fcc, jessica rosenworcel, subsidies, universal service fund

Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism

from the bad-ideas dept

In the wake of Australia getting its ridiculous, anti-open internet link tax passed into law, the push to create similar such laws everywhere else has gone into overdrive. In the US, the main driver of this effort (which has been pushed by legacy newspaper giants) has been an antitrust exemption that would allow the newspapers to collude, in order to put up (what they think is) a joint effort to demand that Google and Facebook pay them for links. The supposed "antitrust" wing of the Democratic party, David Cicilline in the House and Amy Klobuchar in the Senate, have decided that this is a good idea and introduced the Journalism Competition and Preservation Act (JCPA) (here's the House version). Leaving aside the oddity of thinking that the best way to deal with what you believe are dominant firms is to allow other firms to collude and avoid antitrust laws, the entire proposal is silly, and potentially destructive to the open internet.

Public Knowledge has put together a letter to Congress explaining why (our think tank, the Copia Institute, has signed onto the letter). In a separate blog post, Public Knowledge notes that while it as an organization has been largely supportive of Cicilline and Klobuchar's antitrust efforts around the tech companies (something we at Techdirt are somewhat less convinced by), this bill is a complete disaster.

The key part is exactly what we highlighted was wrong with the Australian law. The idea that this is a competition issue and that newspapers need to be able to band together to have enough clout to negotiate a price for linking to their stories has a totally false underlying assumption, that there's some underlying right to be paid for links. The whole nature of the open internet is that you don't need permission or a license to link to someone else. But this bill seems to think that's not true. And that's a problem.

The JCPA would create an antitrust law exception to allow certain publishers the ability to jointly negotiate business terms with major online platforms. Notably, it does not otherwise alter substantive law. However, no individual news publication currently has any legal right (via copyright, or any other statute) to prohibit third parties from linking to their content. Nor does banding together to collectively negotiate give such a right. In other words, a cartel of news sites is exactly as powerless to prevent Facebook or Google from linking to its members’ content as a small site would be negotiating on its own.

And that could lead some -- perhaps even courts -- to think that this bill actually alters copyright law to mean that you do need a license to link, and that would be horrific for the open internet.

This central disconnect means that the structure of the bill does not achieve its stated legislative aims. As such, we are concerned that this bill could be interpreted by courts to implicitly change the scope of copyright, expanding the exclusive rights that news publications enjoy in their material beyond what any copyright owner has ever enjoyed. To the extent that this creates a new substantive right to demand that material not be linked to, this is unwise; to the extent that it interferes with fair use rights, particularly of the rights of users of platforms, it is unconstitutional and violative of our international obligations.

The ability of one website to connect (“link”) to other websites, without needing to negotiate to do so, is a foundational component of modern internet infrastructure. Linking is not, and has never been, an act within the scope of copyright. It is not within the statutory or common-law ambit of copyright law, as merely linking to a piece of external content is not a reproduction, display, performance, or distribution of that content. As such rightsholders do not--and should not--have the ability under copyright law to prevent third parties from linking to their publicly available content. (Notably, the vast majority of rightsholders do not want such a right, and those that do already have technical methods which allow them to do so.)

Once again, what we're seeing with Klobuchar and Cicilline is that they're so deeply infatuated with the idea that "big tech is bad" that they fail to bother to look at the details of their own proposals and what they would mean for the open internet.

Filed Under: amy klobuchar, antitrust, cmpetition, collusion, copyright, david cicilline, jcpa, link tax, links, negotiations, newspapers