This Week In Techdirt History: July 25th - 31st

from the plus-a-different-week dept

Five Years Ago

This week in 2016, the hack of DNC emails was sweeping the news, revealing things that were important regardless of who conducted the hack (and some things that were just plain embarrassing) while we warned against any disastrous overreactions in response. We also highlighted Trump's worrying response as well as a ridiculous tidbit in the backlash from the DNC itself. IsoHunt settled the last of its lawsuits, an MPAA front group was attacking CloudFlare for not censoring the internet, and the TPP was meeting more resistance around the world. This was also the week that Verizon bought Yahoo, and of course it featured a continuation of the Monkey Selfie saga.

Ten Years Ago

This week in 2011, governments were engaging in a propaganda war against hacktivist groups, Ron Wyden was pressing intelligence officials about their "secret" interpretation of the Patriot Act while other senators were trying to shift attention elsewhere, and Homeland Security was finally 'fessing up to the latest round of domain seizures. We saw worrying copyright rulings and laws in several countries including Sweden, Sierra Leone, and the UK (which offered up a double) — but perhaps the most concerning was in the US, where a judge put another nail in the coffin of the idea/expression dichotomy by allowing a photographer's lawsuit against Rihanna to move forward. But even more problematic than that was the CAFC ruling in the Myriad case that said individual genes can be patented.

Fifteen Years Ago

Well, this is an unusual one — as I was looking through posts for this section, I got a sense of deja vu, and had a realization: last month, I accidentally messed up the dates somehow and featured posts from this week in the flashback roundup for the final week of June. So you can go check out that link to see what happened this week in 2006, and today I've rounded up a few things that should have appeared in that post:

There were trends of gimmicky WiFi offerings and people blaming Google for their own failures; people were still working to figure out what Nathan Myhrvold was up to with Intellectual Ventures while the Supreme Court agreed to look into the question of patent obviousness; the Sony Rootkit fiasco reared its head again as the makers of a virus that exploited the technology were arrested; we wondered why there was so little honesty in the net neutrality debate, and how Senators who voted against net neutrality could be in favor of the broadcast flag; and we looked at just how little impact the Grokster decision had on the world of file sharing.

Filed Under: history, look back

DC Court Dumps Police Union's Attempt To Block Release Of Recordings, Officers' Names Following Police Shootings

from the maybe-just-shoot-fewer-people-if-this-transparency-is-such-a-problem dept

Last year, a number of police reforms were passed by the city of Washington, DC. These efforts angered the Fraternal Order of Police -- which represents a number of DC Metro police officers -- enough for it to sue. It sued over two reforms in particular: the release of police recordings (body cam or otherwise) and the names of officers involved in shootings of residents.

The FOP insisted this was a bad idea. According to the union, releasing this information would place officers in danger. The FOP speculated making officers' names public would subject them to humiliation, possible armed retribution by city residents, and make it ever so slightly more difficult for them to be employed by other law enforcement agencies.

It also suggested releasing footage would violate the privacy rights of citizens, including victims and witnesses at the scene. And it insisted the entire thing reeked of due process violations, since there was a chance (probably a pretty good one) that officers would be cleared of any wrongdoing.

Well, the court has rejected all of the FOP's arguments and Metro PD officers are going to have to get used to the new level of transparency that now surrounds their use of deadly force. The court likes exactly zero of the FOP's arguments. First, the court [PDF] points out the police union has no standing to bring this suit, no matter which version of standing it attempts to use.

Speculating that the FOP will be involved in more defense of officers accused of wrongdoing following use-of-force incidents isn't an injury the court's willing to recognize. (And it's unclear how releasing footage and names would result in more litigation or internal investigations.)

Simply stating that more resources will be expended is insufficient because the passing of the Temporary Act did not prevent the plaintiffs from performing tasks or actions that they previously could prior the Temporary Act.

[...]

Further, plaintiff’s alleged future injuries are too speculative to establish organizational standing. The plaintiff alleges that it will have to expended resources to challenge improper transfers of Detectives, but as the defendants pointed out, such an allegation is based a series of potential future events. It is not concrete or imminent injury when the allegations involve a chain of events that essentially start from the Mayor’s release of the footage, to less witnesses willing to testify, to a more difficult investigation, to a lower closure rate, to potential transfers or disciplinary action, and then to plaintiff’s decision whether to represent the officer, assuming that the officer is one of plaintiff’s members. [...] Therefore, plaintiff’s pure speculation about potential future harm is insufficient to establish organizational standing.

The court says the FOP also can't sue because it feels release of footage will infringe on the privacy rights of residents who aren't cops.

In the Complaint, the plaintiff alleges that the Temporary Act will infringe on the rights of citizens of the District, such as infringing on their privacy rights. However, it is unclear how the plaintiff can establish a close relationship with every member of the general public who are not members of the plaintiff’s organization. Furthermore, there is no allegation of any “hindrance” to the ability of the public to protect their own interests.

There's no associational standing either.

In the Amended Complaint, the plaintiff alleges that the release of the camera footage and names of officers will result in “unjust reputational harm, result in “immediate risk of a significant bodily harm,” and lead to “psychological trauma” to an officer and his/her family. However, these allegations are purely speculation and conclusory allegations that the Court has no obligation to accept under the relevant standards. The pure possibility that something might happen does not constitute an injury.

In addition, there's nothing connecting this speculation to the actions of the city government, which passed the order governing the release of footage and names.

Further, the Amended Complaint also fails to allege how any alleged injuries can be “fairly traceable” to the defendant’s actions. The defendants are not in control of public opinion and cannot be held responsible if a citizen or citizens criticizes or condemns an officer’s use of force in a particular incident.

The court saves the best for last in this dismissal. It dispenses with the union's due process violation allegations by pointing out there's no difference between the officers' body cameras and cameras operated by citizens. You can't say one is protected speech but the other somehow violates the privacy rights of police officers.

In Count II, the plaintiffs contend that Subtitle B of the Temporary Act “violates the fundamental right to privacy held by D.C. Police Union members.” Specifically, the immediate public release of names of officers and body-worn camera footage “will allow criminal suspects and their associates to identify the officer and potentially seek retribution.” First and foremost, there is “no authority that the Constitution imposes on the government an affirmative duty—untethered to specific constitutional provisions such as the First Amendment—to ‘safeguard personal information’ from the criminal acts of third parties.”

Importantly, as the defendants mentioned, MPD policy explicitly states that members of the general public have a First Amendment right to record MPD members during official business, unless they interfere with police activity. See MPD General Order 304-19 at § 1. If the public is legally able to record officers during official business, it is unclear how any reasonable officer can assume that they have the right to privacy when conducting said official business.

The lawsuit is dismissed. Presumably this will be appealed, but even when given two chances to fill a lawsuit with actionable claims and firmly establish standing, the FOP failed. Once this is appealed, it's stuck with the arguments that have already failed once. It should probably save its time and money for future Hail Mary litigation in the event of impending release of footage and names.

Filed Under: body cameras, dc metro police, fraternal order of police, police, police recordings, police unions, transparency

Stop The Antitrust Gerrymandering

from the make-stronger-arguments, dept

The social media app TikTok was reported to have passed more than 3 billion total downloads in July and was the most downloaded app in the first half of the year. This growth is impressive as it not only was banned in India but is the first app not owned by Facebook to pass 3 billion downloads. Yet in the recent antitrust cases from the Federal Trade Commission (FTC) and the states attorneys general against Facebook, there is little mention of the popular app.

This omission is reminiscent of politicians gerrymandering or drawing political lines to benefit their parties’ candidates in re-election. Attorneys general and federal agencies have also relied on excluding competitors or narrowly defining markets to make their cases against Google and Facebook.

The FTC led lawsuit against Facebook provides a case in point. The lawsuit accuses Facebook of having a monopoly over “personal networking services.” The FTC argues that products like LinkedIn or Twitter are different from Facebook and shouldn’t be considered as a personal networking service. TikTok with its 3 billion downloads fails to warrant a mention.

Even with these exclusions, the FTC contends that Facebook only controls approximately 60 percent of the market yet omits whatever company or companies control the other 40 percent. Unsurprisingly the judge was unconvinced of the claim that Facebook controlled 60 percent of the market and gave the FTC 30 days to amend the complaint to show their work.

As other cases against Google move through the process, they will likely face the same struggles at convincing judges due to their gerrymandering. The most recent case filed against Google for allegedly holding a monopoly on app stores in the Android mobile operating system is another example.

The lawsuit immediately fails to pass any logical test since Android is not the only, let alone the dominant, mobile platform in the United States. Apple’s iOS has the majority of users in America and is facing its own antitrust lawsuit from Epic games over its supposed app store monopoly. The states try to get around this by claiming the market is specifically "licensable" operating systems, which excludes iOS, but that only highlights how this is gerrymandering the definition to get to a desired outcome.

Even ignoring Apple, the Android system is extremely open allowing users to download a variety of app stores and even allowing for “sideloading” or downloading apps directly from the developers without need of an app store. The “Freedom Phone” which uses the Android operating system and purports to protect users from “big tech” comes preloaded with its own app store for example.

The problem with these narrow definitions is that it asks judges to ignore the world in which we actually live for ones constructed for the purpose of showing targeted tech companies are monopolies.

Other lawsuits contend that Google holds a monopoly over search when Bing and DuckDuckGo are easily accessible to anyone with an internet connection at no cost. Or that Google faces stiff competition from Facebook, Amazon, and a host of other companies to say nothing of more traditional advertisements.

Like political gerrymandering, elected officials filing these cases seem to believe there is political gain for being tough on big tech. But as with poorly drawn political maps, judges are proving more skeptical. Judges play an important role in protecting a fair in neutral system from political pressure. This is true for both elections and antitrust.

Eric Peterson is the Director if the Pelican Institute for Technology and Innovation. He currently lives in New Orleans

Filed Under: antitrust, ftc, gerrymandering, market definition
Companies: facebook, google

Copyright Troll Richard Liebowitz Keeps On Losing In Court

from the you're-a-troll dept

Copyright troll Richard Liebowitz (who once demanded he not be called a copyright troll), who has been suspended from practicing law in NY, continues to rack up embarrassing losses in court. I hadn't realized that after the Southern District of NY suspended Liebowitz, a bunch of other courts followed suit, asking him why he shouldn't be suspended elsewhere. In North Dakota, rather than fighting it, Liebowitz meekly consented to the suspension. In the Southern District of Illinois, Liebowitz didn't even respond to the court's order to show cause, and was thus suspended as well. In the Eastern District of NY he was suspended as well The 10th Circuit Appeals Court suspended Liebowitz as well. That's based on just a quick look -- it may have happened in other courts too.

But that really may be the least of Liebowitz's problems. Late last month, the federal district court in Tyler, Texas had to benchslap Liebowitz yet again (right after he was suspended from practicing law in Eastern Texas. The case, once again, demonstrates how Liebowitz may be one of the worst lawyers ever to appear in court. It involved a case in which Liebowitz represented a guy named Robert Berg, who sued M&F Western Products claiming copyright infringement over what he claimed was copied pendants and belt buckles.

Among the many, many problems with the entire lawsuit, was the fact that M&F's designs predated those of Berg's. It really is quite something when you sue someone for infringement for a design they released before you did. And, rather than admitting he fucked up, Liebowitz decided to double down. From the benchslap ruling:

M&F Western also sought sanctions against Berg’s counsel, Richard Liebowitz. M&F Western argued that it had “repeatedly told Mr. Liebowitz that his client’s claims [we]re without basis in fact or law because his client’s Buckle Design was created and published seven years after M&F Western’s.” Docket No. 42 at 1. And “[r]ather than removing the Buckle Claim when he filed the Amended Complaint, Mr. Liebowitz . . . add[ed] entirely new facts that nonetheless do not address the fundamental failure of the claim.”

The court notes that, while protecting copyright is important, it certainly looked like Berg and Liebowitz had "improper motivation" in bringing this lawsuit:

But on the other hand, Berg’s conduct strongly implies improper motivation. Berg identified twenty-seven other western-wear companies “lined up for litigation” and was actively sending demand letters that used this case to feign leverage. Docket No. 26, Exs. G & H. Specifically, Berg was claiming that other parties should settle his claims against them because M&F Western was facing $1,500,000 in damages for ten infringing designs in this case. See, e.g., Docket No. 26, Ex. G at 41. This posturing colors all of Berg’s actions here and strongly suggests that he was more motivated to maximize the number of infringement claims for leverage in extracting settlements—both from M&F Western and other western-wear companies—than he was motivated to protect his intellectual property. Compare, e.g., Docket No. 72 at 4 and Docket No. 74, Ex. A at 7, with Docket No. 23, Ex. A (changing the supposedly infringed-upon cross pendant mid-briefing without explanation); Docket No. 72 at 4– 6, with Docket No. 41, Ex. 2 (changing the theory of copyrightability mid-briefing after being notified of potential insufficiency); Docket No. 23 at ¶ 17, with Docket No. 1 at ¶¶ 10–11 (changing the theory of access after being notified of factual impossibility). Berg’s motive in this case seems improper, especially when considering that his copyright claims were frivolous and objectively unreasonable.

Given that, the court says that it's easy to say that Berg and Liebowitz should have to pay M&F's legal fees. Liebowitz and Berg claimed that the fees demanded -- $483,808.20 -- were too high. Except, even then, he didn't explain why or how.

Berg does not argue that any of the attorneys’ billing rates are unreasonable. Nor does he identify any “duplicative, excessive, [or] inadequately documented hours from the records provided” by M&F Western. Watkins, 7 F.3d at 457. Berg elsewhere suggests that, once M&F Western filed its dispositive motions, it should have stopped working on the case altogether because “it knew [those motions] would be dispositive of the case.” Docket No. 105 at 2. But as the Court’s Scheduling Order makes clear, “[a] party is not excused from the requirements of this scheduling order by virtue of the fact that dispositive motions are pending.” Docket No. 20 at 9. And even that argument addresses only a portion of the fees. Docket No. 105 at 2. Without more, the Court is left guessing about what is objectionable in M&F Western’s billing records.

The court then declines to add more sanctions on top of that, even though M&F requested it. As the judge notes, Liebowitz has already been suspended in the district, and is now on the hook for nearly half a million in this case. It doesn't see much reason to add more on top of that, even though it seems like it could. But the court still makes it clear that Liebowitz's behavior was just absolutely ridiculous.

Liebowitz knew M&F Western’s buckles predated Berg’s designs, and yet he signed his name to pleadings, motions, and other papers claiming that the buckles illegally copied Berg. As M&F Western has conclusively demonstrated, its counsel sent Liebowitz authenticated photos of a catalog with the allegedly infringing buckles dated 1995—seven years before Berg created his designs. Docket No. 37 at 7–8. Liebowitz’s only justification for pursuing these claims in the face of such fatal evidence was his unsupported speculation that the 1995 catalog “easily could have been fabricated.” Docket No. 30 at 8. And realizing this was a losing argument, Liebowitz alternatively claimed that M&F Western did not own the earlier buckles, ignoring the asset purchase agreement that plainly transferred the relevant intellectual property rights. Docket No. 37 at 8–9. Further, this is not a first offense for Liebowitz, who has been described by another court as a “clear and present danger to the fair and efficient administration of justice.”

So while it doesn't add any more on top of the attorney's fees, it does conclude with a warning should he ever be able to practice law again:

Accordingly, the Court hereby publicly REPRIMANDS Richard Liebowitz for his misconduct in this case and ADMONISHES him that, should his ability to practice be restored, future breaches of Rule 11 duties will result in the imposition of more severe sanctions

And... that's not all. You may recall, last month, we wrote about how the 2nd Circuit had upheld all the non-monetary sanctions against Liebowitz, promising that it would rule shortly on the monetary sanctions. While it took a month, last week the 2nd Circuit upheld all the monetary sanctions as well -- which should surprise no one.

Let's just say that this is not how any lawyer should want a ruling to start out:

Richard P. Liebowitz (“Liebowitz”) has been a member of the bar for a short time. In that time, he has compiled an ignominious record of reprimands and sanctions from judges across the country. This appeal concerns one such sanctions order.

The court then goes through a bunch of the details of Liebowitz's misconduct in the cases at issue, most of which we've covered in previous articles. Then it looks at Liebowitz's excuses, none of which can stand up to the cold, hard, truth. Over and over and over again the court points out Liebowitz's terrible, terrible arguments, in light of the fact that he clearly lied to the court. Here's just one example:

At the start, the district court had ample reason to conclude, as it did, that Liebowitz’s testimony that he received permission was “on its own terms . . . unworthy of belief” because, inter alia, it lacked corroboration and required the court to accept “patently incredible” claims such as that Liebowitz was prepared to fly himself and Usherson from Los Angeles and Georgia, respectively, to New York on the morning of the mediation, and on a moment’s notice. Sp. App’x at 31. By his own admission, Liebowitz made no notation of the oral permission he allegedly obtained. Moreover, his testimony that he had spoken about the case on numerous occasions with Freeman, and had informed him about receiving permission from the Mediator for Liebowitz’s and Usherson’s absence, was inconsistent with Freeman’s in-court statements at the initial pretrial conference. In addition, as the district court found, Liebowitz’s claim to have received that permission on October 30 is not reflected in any of the contemporaneous email correspondence, which suggests no awareness on the Mediator’s part “that either Mr. Usherson or Mr. Liebowitz would not be attending in person the next day– much less that [the Mediator] had given them both permission not to attend that very night . . . .”....

Liebowitz’s claim is most obviously contradicted by the Mediator himself, “who testified unequivocally at the hearing that Mr. Liebowitz never mentioned the possibility that Mr. Usherson would not attend the mediation in person.” Sp. App’x at 30. The district court specifically credited the Mediator’s testimony and discredited Liebowitz’s based on an assessment of the demeanor of each witness, and the record as a whole. Appellants argue that the district court placed too much weight on the emails between Newberg and the Mediator and that the Mediator, contrary to the district court’s view, was not without any stake in the matter, but had an interest in demonstrating compliance with the Mediation Program’s rules. But “[w]hen, as here, credibility determinations are at issue, we give particularly strong deference to a district court finding.” United States v. Wallace, 937 F.3d 130, 141 (2d Cir. 2019) (quoting United States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012)), cert. denied, 140 S. Ct. 2551, and reh’g denied, 140 S. Ct. 2799 (2020). After reviewing the record and evaluating the demeanor of the witnesses at the evidentiary hearing, Judge Furman determined that the Mediator’s testimony was credible and Liebowitz’s was not. We discern no error, much less clear error, in this determination.

Things are not going well:

In sum, the factual findings supporting the district court’s decision to sanction Appellants were amply supported and in no way clearly erroneous. Again, Liebowitz admittedly violated multiple court orders and raises no challenge to this conclusion by the district court. As to the challenges that he does make, the court adequately supported its findings: (1) that Liebowitz lied about receiving permission from the Mediator for Usherson’s failure to attend the mediation; and (2) that he acted in bad faith in pursuing Usherson’s claim based on the 046 Registration.

While the 2nd Circuit is a bit unsure about one possible justification for the $20,000 sanctions issued against Liebowitz, it says it has "no such hesitation" about an alternative justification.

We have no such hesitation, however, with regard to the district court’s alternative holding under Federal Rule of Civil Procedure 16(f). 28 Rule 16 prohibits, inter alia, bad faith participation in pretrial conferences and permits the district court to issue “any just orders” in response to such conduct. Fed. R. Civ. Pr. 16(f). District courts acting pursuant to their authority under Rule 16(f) are free to “design the sanction to fit the violation,” 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1531 (3d ed.), and their focus “need not be limited to compensation of opposing counsel,” Media Duplication Servs., Ltd. v. HDG Software, 928 F.2d 1228, 1242 (1st Cir. 1991). Indeed, “[t]rial judges have considerable discretion in the selection and imposition of sanctions” so as to “deter neglect” of pretrial obligations. Id. (quoting Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990)). And “[d]eterrence is a widely recognized basis for determining the amount of a monetary sanction” under Rule 16(f). See Jones v. Winnepesaukee Realty, 990 F.2d 1, 6 (1st Cir. 1993).

And while there may be situations where courts go too far, this isn't one of them:

We have little trouble concluding Liebowitz’s conduct at and with respect to the November pretrial conference was in bad faith, thus violating Rule 16. Bandshell raised the issue of the registration at that pretrial conference, giving Liebowitz an opportunity to respond. Liebowitz, as the district court found, instead “stonewall[ed] . . . any investigation into the registration issue,” falsely assuring the court that the registration identified in the complaint was “the correct registration.”29 Sp. App’x at 10, 51. This was not good faith participation in the pretrial conference or with respect to it.

We also conclude that when assessed in light of Rule 16(f), the record is more than sufficient, even without additional explanation from the district court, to conclude that the sanctions amount chosen by the district court did not require the protections of criminal procedure. As already indicated, the district court explained that “sanctions of $20,000 [were] no greater than necessary to provide adequate deterrence” to Liebowitz and to LLF. Sp. App’x at 51. And Liebowitz has shown that his conduct is resistant to ordinary efforts to sanction him.

And thus, the monetary sanctions are upheld, as are the non-monetary sanctions, and Liebowitz has been suspended in courts across the country.

Of course, we're already hearing about a lawyer who supposedly has picked up some of Liebowitz's cases, and is now filing new infringement cases as well. I'm hoping that this lawyer heeds how Liebowitz's situation has concluded, and chooses a smarter path, rather than reckless copyright trolling... but I'm not hopeful.

Filed Under: 2nd circuit, copyright, copyright troll, richard liebowitz, sanctions

Disentangling Disinformation: Not As Easy As It Looks

from the impossibility-theories dept

Body bags claiming that “disinformation kills” line the streets this week in front of Facebook’s Washington, D.C. headquarters. A group of protesters, affiliated with “The Real Facebook Oversight Board” (an organization that is, confusingly, not affiliated with Facebook or its Oversight Board), is urging Facebook’s shareholders to ban so-called misinformation “superspreaders”—that is, a specific number of accounts that have been deemed responsible for the majority of disinformation about the COVID-19 vaccines.

Disinformation about the vaccines is certainly contributing to their slow uptake in various parts of the U.S. as well as other countries. This disinformation is spreading through a variety of ways: Local communities, family WhatsApp groups, FOX television hosts, and yes, Facebook. The activists pushing for Facebook to remove these “superspreaders” are not wrong: while Facebook does currently ban some COVID-19 mis- and disinformation, urging the company to enforce its own rules more evenly is a tried-and-true tactic.

But while disinformation “superspreaders” are easy to identify based on the sheer amount of information they disseminate, tackling disinformation at a systemic level is not an easy task, and some of the policy proposals we’re seeing have us concerned. Here’s why.

1. Disinformation is not always simple to identify.

In the United States, it was only a few decades ago that the medical community deemed homosexuality a mental illness. It took serious activism and societal debate for the medical community to come to an understanding that it was not. Had Facebook been around—and had we allowed it to be arbiter of truth—that debate might not have flourished.

Here’s a more recent example: There is much debate amongst the contemporary medical community as to the causes of ME/CFS, a chronic illness for which a definitive cause has not been determined—and which, just a few years ago, was thought by many not to be real. The Centers for Disease Control notes this and acknowledges that some healthcare providers may not take the illness seriously. Many sufferers of ME/CFS use platforms like Facebook and Twitter to discuss their illness and find community. If those platforms were to crack down on that discussion, relying on the views of the providers that deny the gravity of the illness, those who suffer from it would suffer more greatly.

2. Tasking an authority with determining disinfo has serious downsides.

As we’ve seen from the first example, there isn’t always agreement between authorities and society as to what is truthful—nor are authorities inherently correct.

In January, German newspaper Handelsblatt published a report stating that the Oxford-AstraZeneca vaccine was not efficacious for older adults, citing an anonymous government source and claiming that the German government’s vaccination scheme was risky.

AstraZeneca denied the claims, and no evidence that the vaccine was ineffective for older adults was procured, but it didn’t matter: Handelsblatt’s reporting set off a series of events that led to AstraZeneca’s reputation in Germany suffering considerably. 

Finally, it’s worth pointing out that even the CDC itself—the authority tasked with providing information about COVID-19—has gotten a few things wrong, most recently in May when it lifted its recommendation that people wear masks indoors, an event that was followed by a surge in COVID-19 cases. That shift was met with rigorous debate on social media, including from epidemiologists and sociologists—debate that was important for many individuals seeking to understand what was best for their health. Had Facebook relied on the CDC to guide its misinformation policy, that debate may well have been stifled.

3. Enforcing rules around disinformation is not an easy task.

We know that enforcing terms of service and community standards is a difficult task even for the most resourced, even for those with the best of intentions—like, say, a well-respected, well-funded German newspaper. But if a newspaper, with layers of editors, doesn’t always get it right, how can content moderators—who by all accounts are low-wage workers who must moderate a certain amount of content per hour—be expected to do so? And more to the point, how can we expect automated technologies—which already make a staggering amount of errors in moderation—to get it right?

The fact is, moderation is hard at any level and impossible at scale. Certainly, companies could do better when it comes to repeat offenders like the disinformation “superspreaders,” but the majority of content, spread across hundreds of languages and jurisdictions, will be much more difficult to moderate—and as with nearly every category of expression, plenty of good content will get caught in the net.

Reposted from the EFF's Deeplinks blog

Filed Under: content moderation, control, disinformation, rules

Daily Deal: The All-Access CompTIA A+ And Network Certification Prep Bundle

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

The Techdirt Deals Store is having a semi-annual sale from July 28 to August 4. Get 15% off of physical products using the code ANNUAL15. Get 30% off apps and software with the code ANNUAL30. Get 60% off of online courses with the code ANNUAL60.

The All-Access CompTIA A+ And Network Certification Prep Bundle has 12 courses designed to help you prepare for various certification exams. Courses cover CompTIA A+, PenTest+, Security+, Network+, and more. It's on sale for $45. Don't forget to use the code ANNUAL60 to get 60% off.

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

Last Month In An LA Court I Witnessed The Future Of A World Without Section 230; It Was A Mess

from the couldn't-you-have-done-more dept

Disclosure: I was an expert witness for RedBubble in this case (and another case) and submitted some reports regarding this case much earlier in the process, though I did not testify at this trial. I had nothing to do with this trial other than attending it as an interested observer, concerned about litigation involving content moderation. As you can see, however, my opinions on this remain identical to my opinions on content moderation going back basically forever...

There's been a lot of talk lately about "repealing" or "reforming" Section 230. We've explained at great lengthy why this would be a mistake and would lead to a ton of frivolous litigation. Section 230 co-author Senator Ron Wyden has referred to this as creating a situation where website operators would face "death by ten thousand duck-bites." Professor Eric Goldman has explained the procedural benefits of Section 230 in that it helps get rid of these cases more quickly. And while some (including myself) have pointed out that the 1st Amendment would still protect most claims, without the procedural benefits of Section 230, we'd still see a ridiculous number of nuisance lawsuits in which companies would have to defend each and every content moderation decision. This would be made significantly worse if the law changes in a manner proposed by folks like law professor Danielle Citron, to require websites to show that their content moderation practices are "reasonable," which would require expensive litigation to determine.

The thing is: we have an area where we can actually see this in practice. There is something of a loophole within Section 230: trademark law. From the beginning, Section 230(e)(2) has excluded intellectual property law. For copyright, that gap was filled (not particularly well) by the notice-and-takedown provisions of the DMCA Section 512. But trademark has no official intermediary protections in US law. Experts like Mark Lemley have long advocated for harmonizing the various intermediary laws so that they're all consistent. Many people had thought that perhaps the courts had settled the issue with regards to trademark in the infamous Tiffany case against eBay, in which the courts said that eBay shouldn't be expected to be perfect, and as long as it has some sort of program to deal with counterfeits, then it is no longer liable for counterfeits on its site.

However, last summer, a federal judge in LA effectively re-opened the issue in a case brought by the holding company that controls the "Brandy Melville" clothing brand against print-on-demand website RedBubble. Brandy Melville argued that RedBubble was violating its trademarks (and copyrights) in printing some of its designs, and while the judge did toss out much of the case, he allowed a few parts to move forward to a jury trial. The judge said that the Tiffany v. eBay rule didn't necessarily apply -- since that was a case of users selling physical products, whereas with RedBubble, the company would take designs uploaded by users, and pass them on to various print shops for the actual printing. So the open question, in theory, was whether or not that deeper involvement opened itself up to contributory liability (the judge correctly dismissed the claims about direct infringement). There were a few other oddities about the judge's ruling as Eric Goldman noted at the time:

However, the Ohio State ruling didn’t address contributory trademark infringement, and this court sends that issue to the jury. Unlike Tiffany v. eBay, which involved legitimate used resales of Tiffany items, the court says “Redbubble is not burdened by the need to parse valid uses of Brandy Melville’s trademarks from invalid ones, as Brandy Melville has made clear to Redbubble that there are no legitimate sales of Brandy Melville products through its site. As such, all uses of Brandy Melville’s marks that appear on Redbubble’s website are presumptively infringing.” I doubt the court means this statement so baldly, as it disregards parodies, nominative uses, and other legitimate activities. Similarly, the plaintiff complained that RedBubble hasn’t disabled internal consumer keyword searches for its trademarks, but that doesn’t seem like a right exclusive to the trademark owner in light of MTM v. Amazon.

In practice, however, pretty much the entire trial revolved around whether or not RedBubble "did enough" in its content moderation. Over and over again, the lawyers for Brandy Melville kept trying to insist that any failures by RedBubble's content moderation was proof that it did not do enough. Indeed, in the closing arguments, even after it had been pointed out that RedBubble spent millions of dollars per year on its content moderation efforts, and had removed every example that Brandy Melville's lawyers had sent them within a day or two, the lawyer straight up asked the jury "don't you think RedBubble could have done more?"

There were a number of other oddities that came out during the trial. The trial was explicitly about just three specific trademark designs that Brandy Melville held -- two of which never actually appear on the front of t-shirts or other products (the company said it only used them on clothing hang tags and on store signs), and one that the company registered just weeks before suing. Incredibly, Brandy Melville put on the stand a manager of some of their stores who admitted two incredible things: (1) that she was unable to tell which products on RedBubble were legitimate and which were infringing (so how the hell could they expect RedBubble to just know?!?) and (2) that in many years of working and managing Brandy Melville stores, she could not recall a single time that anyone ever brought in a RedBubble product to "return" it. That latter point really stuck with me because it highlighted the near total lack of confusion, which is a key point in trademark infringement. There needs to be confusion.

Another oddity: Brandy Melville kept focusing on the fact that RedBubble refused to block all tags that included "Brandy Melville" or any search results on "Brandy Melville." But as Goldman noted above (and the judge seemed to miss), that's not a right that trademark law gives a trademark holder. RedBubble pointed out that it actually used the tagging system as part of its content moderation efforts -- and that letting users tag stuff "Brandy Melville" made it easier for its content moderation team to find and review those items to see if they infringed. Also, while it only came up exceptionally briefly, one of the products that was on RedBubble's site was a t-shirt that read: "Fuck Brandy Melville," which is clearly commentary/parody -- and not something anyone would assume came from Brandy Melville itself. Brandy Melville cannot abuse trademark law to say any and all use of the term must be blocked. That's not how trademark law works.

For its part, RedBubble spent plenty of time describing the extreme lengths it goes to try to prevent infringing works on its site, including making use of various technologies, having a large team of human reviewers, and working closely with lots of brands to better understand what is and what is not infringing. But, again, the plaintiff's focused on "is it enough."

And, because they kept focusing on a very few examples where Brandy Melville logos or other designs were found on RedBubble, that was proof that, no, the company did not do enough. And... the jury bought it. At the end of the three day trial, the jury said that RedBubble was liable as a contributory infringer, including not just for trademark infringing, but for counterfeiting. This was particularly bizarre because for there to be counterfeiting, there needs to be an actual copying of a product sold by the trademark holder. And, as already noted, two out of the three designs were never actually used on the front of products by Brandy Melville, and as for the third design (the "LA Lightning" mark -- which, seems like it may have its own trademark issues, considering it was yanked from an independent professional basketball team), they never seemed to show exact copies of it on any RedBubble products either. Instead, somewhat bizarrely, Brandy Melville focused on very distinct and different variations on the logo that appeared on RedBubble products -- including a clear parody one for University of Florida students. And the counterfeiting issue was key to Brandy Melville's case, because it would allow them to ask for statutory damages, running up into multiple millions of dollars.

And this is a clear issue with litigation around content moderation: the jury was primed over and over again to believe that any mistake makes the company liable. Brandy Melville's lawyers just kept showing designs that mention Brandy Melville or looked similar to Brandy Melville (frequently for products that Brandy Melville had no trademark over) and then just kept harping on the fact that Brandy Melville didn't approve any of this, and clearly RedBubble was a "counterfeiting" site. In the end, the jury awarded $520,000 to Brandy Melville ($300k "counterfeiting" for the "Brandy Melville" mark, $200k for "counterfeiting" the LA Lightning mark, and then $20k for trademark infringement.)

At the close of the case, RedBubble immediately sought a judgment as a matter of law to effectively try to take the case out of the jury's hands (arguing that Brandy Melville failed to present enough evidence and the judge could rule on the matter directly without needing the factual deliberation of the jury). This week the judge did in fact rule that the $300k for contributory counterfeiting on the Brandy Melville mark was improper, bouncing the award down to $220,000.

As the judge noted, the fact that RedBubble's products were not the same as anything Brandy Melville made regarding those logos, meant that there couldn't be a legitimate counterfeiting claim for that mark:

Here, Plaintiff failed to present evidence of products that bore a spurious Brandy Melville Heart Mark and were offered for sale on Redbubble.com that were remotely similar to products that Plaintiff offered for sale, let alone "stich-for-stitch copies" of Plaintiff's products. The Court therefore concludes that the evidence presented at trial permits only one reasonable conclusion--Plaintiff failed to establish that Redbubble is liable for contributory counterfeiting of the Brandy Melville Heart Mark.

The end result is way below the many millions of dollars Brandy Melville was seeking, though even the small amount it got seems ridiculous based on an understanding of what actually happened.

But, there's a larger point here: this case was an unfortunate alternate reality universe view of what will happen without Section 230 or if we moved to a Citron-style "reasonable" standard. You'd get a ton of litigation in which everyone was just going back and forth arguing over what the "right" level of content moderation is, and arguing that any mistakes were evidence that "not enough" was being done by the companies. That's a disaster scenario, one in which any simple mistake (even where there's perhaps strong evidence that no mistake was actually made) is subject to the whims of a jury (or a judge) and an expensive, time-consuming trial. I recognize that law professors might not care that much about all of this wasteful litigation, but in the real world it matters a ton. This kind of thing can, and will, kill off smaller companies, even if they can succeed in court. And that doesn't help anyone, except possibly some trial lawyers who can threaten and shake down tons of websites.

Filed Under: content moderation, counterfeiting, intermediary liability, jury trials, print on demand, section 230, trademark
Companies: brandy melville, redbubble

Broadband Portion Of Bipartisan Infrastructure Plan Appears Watered Down But Still Helpful

from the watered-down dept

As we've noted previously, the broadband component of the Biden infrastructure bill has slowly been whittled down during "bipartisan negotiations." What was first a $100 billion proposal is now a $65 billion proposal, with things industry didn't like (like support for community broadband) slowly hollowed out. And while the White House fact sheet on the agreement offers some detail on the compromise (which still isn't technically final), it remains arguably vague:

"The deal’s $65 billion investment ensures every American has access to reliable high-speed internet with an historic investment in broadband infrastructure deployment, just as the federal government made a historic effort to provide electricity to every American nearly one hundred years ago.

The bill will also help lower prices for internet service by requiring funding recipients to offer a low-cost affordable plan, by creating price transparency and helping families comparison shop, and by boosting competition in areas where existing providers aren’t providing adequate service. It will also help close the digital divide by passing the Digital Equity Act, ending digital redlining, and creating a permanent program to help more low-income households access the internet."

Fortunately Cyrus Farivar at NBC obtained a leaked draft copy of broadband grant portion of the infrastructure plan and linked to it in his reporting (something that's annoyingly uncommon in press policy coverage).

At first look, there's some notably good things in it, including very clear signals that the government realizes its broadband maps are hot garbage, and plans to do something about it after Congress passed the DATA Act last year. The leaked draft also makes it clear that any new subsidized networks will need to deliver broadband at speeds of 100 Mbps down, 20 Mbps up. That's notably better than the current FCC "broadband" definition of 25 Mbps down, 3 Mbps up, or the even more pathetic standard of 10 Mbps down, 1 Mbps up used in many previous subsidy programs:

"A draft copy of the 68-page broadband section of the infrastructure bill obtained by NBC News would establish a de facto minimum standard of 100 Mbps down and 20 Mbps up, and it would require that internet service providers have an eye toward even higher speeds, most likely through fiber optic service.

Note this only changes the broadband definition for this specific grant program, not the overall definition of broadband, which remains at a fairly pathetic 25 Mbps down, 3 Mbps up. And while the 100/20 standard is weaker than the symmetrical 100/100 many wanted (cable and fixed wireless providers lobbied for this because they can't reach the full 100/100 provided by full fiber), it's still progress. Industry had lobbied fiercely against any update to any of the definitions, as doing so only illustrates market failure.

The leak also indicates that the proposal extends the COVID "Emergency Broadband Benefit" (EBB) program, though reporter chatter indicates it will be at a lower rate than it's at currently ($50 discount for low-income Americans, $75 discount for tribal areas). But reading through the proposal it's not really clear if they managed to include any additional guardrails on the program to stop the ISPs currently abusing it to upsell users to more expensive options (which was undermining the whole point).

As with all policy, details and implementation will matter. The proposal isn't final, and as Ars Technica notes, its final form could still feature narrow definitions of broadband speeds (to ensure satellite and wireless options are considered "serving" a neighborhood), strict restrictions on qualifications for low-cost plans, and an overly generous definition of what constitutes a "low cost" plan. A lot of this stuff won't be fully obvious until we see final language and implementation.

While many of these improvements will help, DC historically has been quite averse to doing anything to truly target the real cause of the problem they're trying to fix (regional monopolization and the corruption that protects it). In part because DC is absolutely slathered with Comcast, Verizon, Charter, AT&T, and T-Mobile campaign contributions and lobbying cash, but also because these companies are bone grafted to our intelligence gathering apparatus. AT&T, for example, is effectively a dutiful and patriotic part of government now, further reducing an already fleeting interest in holding it accountable.

As a result, all too often the answer to the broadband problem in DC is "throw more subsidies at it," despite a very clear track record this doesn't work all that well. The other popular DC approach to broadband dysfunction is to apply regulatory band aids on the problem without fixing the underlying rot first. So you get these elaborate bureaucratic fixes like the EBB, which genuinely does help low income Americans by giving them a broadband discount (when it works), but doesn't really cut to the root cause of why US broadband is slow, expensive, and patchy.

In twenty years of covering telecom I've lost track of how many big, well hyped proposals government has unveiled that claim they'll finally fix the problem that is US broadband. Corruption means that most of the time these solutions just nibble around the edges of the real issues or get weakened down steadily by lobbying influence. Refuse to fix corruption, and nothing changes, something exemplified in countless other sectors. That said, the proposal does seem to include things of value, though it remains unclear when a full text of the actual bill will be made available to the public.

Filed Under: broadband, infrastructure

Florida Sheriff's Office Now Notifying People It Will Be Inflicting Its Pre-Crime Program On Them

from the ensuring-accountability-for-everyone-but-the-Sheriff's-Office dept

The Pasco County (FL) Sheriff's Office has been swamped with negative press coverage centering on its predictive policing program. The Office claims it's not "predictive policing," but rather "intelligence-led policing." Whatever you call it, it sucks.

The Sheriff's Office may have some lofty goals that involve stopping crime before it starts, but the supposedly forward-looking policing program does little more than subject past offenders (along with friends, families, and acquaintances) to sustained harassment by law enforcement officers. What's supposed to keep crime down by directing resources to possible serious criminal activity has manifested as multiple visits from officers who do little more than try to coerce people into consenting to unlawful searches and write out nuisance citations for things like missing mailbox numbers or uncut grass.

The Sheriff's Office has since spun this off to include students at public schools, presumably to prep kids for a future of pointless harassment by law enforcement officers simply because they have the misfortune of living in Pasco County.

Thanks to some lawsuits and investigations, the Sheriff's Office is being a bit more proactive on the notification front. According to this ongoing investigation by the Tampa Bay Times, targets of the "intelligence" program are now being informed they've been blacklisted by the Sheriff's Office.

It starts like an offer of admission from a prestigious university.

“We are pleased to inform you that you have been selected…” it says.

But the four-page letter from the Pasco Sheriff’s Office goes on to tell recipients they will be facing enhanced police scrutiny under the agency’s controversial intelligence program.

“You may wonder why you were enrolled in this program,” the letter continues. “You were selected as a result of an evaluation of your recent criminal behavior using an unbiased, evidence-based risk assessment designed to identify prolific offenders in our community. As a result of this designation, we will go to great efforts to encourage change in your life through enhanced support and increased accountability.”

It all sounds so positive. While there's really no evidence this is actually "evidence-based" or "unbiased," at least the Sheriff's Office is willing to "encourage change in your life." It sounds nice but "encouragement" probably just means "constant harassment" and "enhanced support" is probably a euphemism for suspicionless searches. "Increased accountability" may be part of this program, but it won't be applied to the Pasco County Sheriff's Office. Nope, there's a really good chance "increased accountability" means more fines, more citations, more arrests, and more jail time.

It's definitely an attempt at a lighter touch.

The new letter to so-called “prolific offenders” says its purpose is to communicate the agency’s “sincere desire” to help recipients “begin a new path.”

“We are committed to your success,” it says.

But is it sincere? All evidence points to "no." The stated goal of the Sheriff's "pre-crime" program was, in the department's own words, to make targets so miserable they either moved or sued the Sheriff's Office. Now that some targets have done both, the Office appears to be trying to rein things in just a bit, or at least pretend the program is not solely about vindictive, unjustified harassment of certain Pasco County residents.

After all the sweet things about wanting to help people live their best lives, the letter [PDF] gets down to business. If program targets can't meet the standards the Office doesn't bother detailing in this letter, they can expect even more law enforcement interaction in the future.

“Our desire to help you will not hinder us from holding you fully accountable for your choices and actions.”

It then says the Sheriff’s Office will share recipients’ names and criminal histories with local, state and federal law enforcement agencies to ensure “the highest level of accountability” for any future crimes they commit.

External pressure may have forced the Sheriff's Office to reconsider its "intelligence-led policing" program. But this letter shows it didn't get much further than sanding down the edges of some of its sharper words. The changes appear to be limited to giving residents heads up on their impending misery.

Filed Under: florida, harassment, minority report, pasco county, pre-crime, predictive policing