Dairy Queen Loses On ‘Blizzard Water’ Trademark Suit With W. B. Mason

Trademark

from the brrrrrrr dept

Late last year we discussed a plainly stupid trademark lawsuit brought by Dairy Queen, which makes tasty frozen snacks, and W.B. Mason which is a strange combination of furniture and grocery store. At issue was the latter’s attempt to trademark some bottled water it sells under the brand “Blizzard Water”. Notably, W.B. Mason had sold water under that brand since 2010 without issue and it was only when Dairy Queen caught wind of the trademark application that it decided to sue over the potential for confusion with its blizzard ice cream products.

If you didn’t read that original post, you’re probably now wondering why this is a thing at all, given that water and ice cream are very much not the same products and that the two companies operate in different marketplaces. Well, according to Dairy Queen’s suit, it sells blizzards as noted, and it also sells Dasani bottled water, therefore there would be customer confusion.

Fortunately, in a massive decision, the court saw how silly that argument was and found in favor of W.B. Mason.

In a 217-page decision made public on Friday, U.S. District Judge Susan Richard Nelson found a lack of evidence that consumers were confused by the Blizzards or that W.B. Mason, an office products distributor, intended to confuse anyone.

While acknowledging that W.B. Mason, which has two trademarks for Blizzard copy paper, was not a competitor, Dairy Queen said consumers might be confused because its U.S. restaurants sell bottled water. But the judge said the products had “very different audience appeal,” and co-existed for 11 years despite evidence that Dairy Queen’s Blizzard had achieved “iconic” status, with U.S. sales reaching $1.1 billion in 2020.

Notably, as part of the facts the court uncovered and laid out in its decision, W.B. Mason doesn’t even sell its water direct to consumers. Instead, it sells water to be used in office break rooms, as the majority of its business is in office furniture. On top of that, the court points out that Dairy Queen offered no evidence of any actual customer confusion that occurred over nearly a decade.

“Dairy Queen introduced no evidence of an actual association between the two products,” Nelson wrote. “If association were to occur, in all likelihood, it would have occurred by now.”

Dairy Queen has made some noises about appealing the ruling, but I doubt that will happen. This whole thing has been a trademark suit nothingburger from the start.

Filed Under: blizzard, trademark
Companies: dairy queen, w.b. mason

EU Officials Finally Coming To Terms With The Fact That The GDPR Failed; But Now They Want To Make It Worse

Failures

from the maybe-scrap-the-whole-thing dept

Ever since it came into effect, we’ve been calling out how the EU’s General Data Protection Regulation (GDPR) was an obviously problematic bit of legislation. In the four years since it’s gone into effect, we’ve seen nothing to change that opinion. For users, it’s been a total nuisance. Rather than take the big US internet companies down a notch, it’s only harmed smaller (often EU-based) internet companies. Multiple studies have shown that it hasn’t lived up to any of its promises, and has actually harmed innovation. And don’t get me started on how the GDPR has done massive harm to free speech and journalism.

But, for the past four years, within EU policy circles, it has been entirely taboo to even suggest that maybe the EU made a mistake four years ago with the GDPR. Any time we’ve suggested it, we’ve received howls of indignation from “data protection” folks in the EU, who insist that we’re wrong about the GDPR.

However, sooner or later someone had to realize that the emperor had no clothes. And in a surprising move, the first EU official apparently willing to do so is Wojciech Wiewiórowski, the EU’s Data Protection Supervisor.

So far, officials at the EU level have put up a dogged defense of what has become one of their best-known rulebooks, including by publicly pushing back against calls to punish Ireland for what activists say is a failure to bring Big Tech’s data-hungry practices to heel.

Now, one of the European Union’s key voices on data protection regulation is breaking the Brussels taboo of questioning the bloc’s flagship law’s performance so far.

“I think there are parts of the GDPR that definitely have to be adjusted to the future reality,” European Data Protection Supervisor Wojciech Wiewiórowski told POLITICO in an interview earlier this month.

Wiewiórowski, who leads the EU’s in-house privacy regulator, is gathering data protection decision-makers in Brussels Thursday-Friday to open the debate about the GDPR’s failings and lay the groundwork for an inevitable revaluation of the law when the new EU Commission takes office in 2024.

Of course, what’s funny is that when that event actually happened, the complaints were not about how maybe the entire approach of the GDPR was wrong, but that the real problem is that the Irish Data Protection Commission wasn’t willing to fine Google and Facebook enough.

European Data Protection Supervisor Wojciech Wiewiórowski on Friday said there isn’t enough privacy enforcement against tech companies like Meta and Google, hinting at a bigger role for a “pan-European” regulator.

In a speech marking the end of a two-day conference designed to scrutinize the EU’s flagship privacy code, the General Data Protection Regulation or GDPR, Wiewiórowski said enforcers had so far failed to rein in data protection abuses by big companies.

“I also see hopes that certain promises of the GDPR will be better delivered. I myself share views of those who believe we still do not see sufficient enforcement, in particular against Big Tech,” he said.

This is really a “no, it’s the children who are wrong” moment of clarity. The GDPR was sold to the European technocrats as “finally” a way to put Google and Facebook in their place. But, in practice, as multiple studies have shown, the two companies have been mostly just fine, and it’s a bunch of their competitors that have been wiped out by the onerous compliance costs.

Rather than recognizing that maybe the whole concept behind the GDPR is the problem, they’ve decided the problem must be the enforcer in Ireland (where most of the US internet companies have their EU headquarters) so the answer must be to move the enforcement to the EU itself.

Basically, the EU expected the GDPR to be a regular tool for slapping fines on American internet companies, and now that this hasn’t come to pass, the problem must be with the enforcer not doing its job, rather than the structure of the law itself. That means… it’s likely only going to get worse, not better.

Filed Under: data protection, gdpr, ireland, privacy
Companies: facebook, google, meta

Not Even Your ‘Smart’ Jacuzzi Is Safe From The Internet Of Broken Things

(Mis)Uses of Technology

from the dumb-is-the-new-smart dept

The Internet of things — aka the tendency to bring Internet connectivity to devices whether they need them or not — has provided no shortage of both tragedy and comedy. “Smart” locks that are easy to bypass, “smart” fridges that leak your email credentials, or even “smart” barbies that spy on toddlers are all pretty much par for the course in an industry with lax privacy and security standards.

Even your traditional hot tub isn’t immune from the stupidity. Hot tub vendor SmartTub thought it might be nice to control your hot tub from your phone (because walking to the tub and quickly turning a dial is clearly too much to ask).

But like so many IOT vendors more interested in the marketing potential than the reality, they allegedly implemented it without including basic levels of security standards for their website administration panel, allowing hackers to access and control hot tubs, all over the planet. And not just SmartTub brands, but numerous brands from numerous manufacturers, everywhere:

Eaton used a program called Fiddler to intercept and modify some code that told the website they were an admin, not just a user. They were in, and could see a wealth of information about Jacuzzi owners from around the world. “Once into the admin panel, the amount of data I was allowed to was staggering. I could view the details of every spa, see its owner and even remove their ownership,” he said. “Please note that no operations were attempted that would actually change any data. Therefore, it’s unknown if any changes would actually save. I assumed they would, so I navigated carefully.”

Security researcher EatonWorks documented all of his findings here. Again, not everything needs to have Internet functionality, and often dumb tech is the smarter option. Especially not if you’re not willing to take the time and money needed to do it correctly.

Filed Under: hot tubs, internet of things, jacuzzi, privacy, security, smart tech
Companies: smarttub

China Unveils New Regulations Requiring Sites To Pre-Censor All Comments

Free Speech

from the yeah,-sure-that'll-work dept

As we see more and more western countries looking to regulate the internet in order to stifle speech they dislike, we’ve noted how much these efforts seem to be almost directly modeled on how China censors the internet. You might think that would be a reason to run in the other direction, but too many policymakers seem to now view China’s Great Firewall as a success story to be followed. And, now they may get some new ideas, as China has pushed out a draft of revisions to its regulations regarding online commenting. And, while some of it is unclear, it appears to include a provision saying that services that enable comments need to have tools in place to review every comment before it can be viewed on the site.

Specifically, the draft regulations include this section:

Establish and complete information security systems for the review and management, real-time inspection, emergency response, and the acceptance of reports for post comments, to review the content of post comments before publication, and promptly discover and address unlawful and negative information, and report it to the internet information departments.

For somewhat obvious reasons, that’s raising some concerns. As the Tech Review article linked above notes, online comments and other more real-time communications have always been a sort of loophole regarding the Great Firewall, as discussions on sensitive topics often breakthrough there, even if only to be deleted later. However, this new rule seems to be setting up a system to block even that.

There’s a need for a stand-alone regulation on comments because the vast number makes them difficult to censor as rigorously as other content, like articles or videos, says Eric Liu, a former censor for Weibo who’s now researching Chinese censorship at China Digital Times. 

“One thing everyone in the censorship industry knows is that nobody pays attention to the replies and bullet chats. They are moderated carelessly, with minimum effort,” Liu says. 

But recently, there have been several awkward cases where comments under government Weibo accounts went rogue, pointing out government lies or rejecting the official narrative. That could be what has prompted the regulator’s proposed update.

Tech Review quotes people saying that it’s unlikely (for now) that Beijing will require everyone to pre-review every comment (recognizing that’s likely to be impossible), but that it will put pressure on sites to be much more proactive, and that it could force this “feature” to be used on highly controversial topics.

It does seem that a straightforward reading of the law is that it requires sites to at least build out the functionality to pre-approve all comments if need be, even if it does not need to be on all the time.

There are some other features in the new regulations, including granting more power to who can block comments, suggesting that content creators themselves will have more power to censor comments in response to their content (rather than relying on the service’s in-house censors to do so).

Also, I note that part of these requirements would make Elon Musk and others who insist that every user should be “verified” even if their identities are not disclosed publicly. As the rules require:

Follow the principle of ‘real names on file, but whatever you want up front’ , to conduct verification of identification information for registered users, and must not provide post comment services to users whose identification information has not been verified.

So, for all of the folks out there insisting that all internet users who are commenting should have identifying information on tap, in case it’s needed, just know that you’re following in the footsteps of Chinese censors.

And, of course, the new regulations also seek to tie that verified identity to China’s infamous social credit scoring system, though amusingly this is framed as part of privacy protections.

Establish and complete systems for the protection of users’ personal information: the handling of users’ personal information shall comply with the principles of legality, propriety, necessity, and creditworthiness; disclose rules for handling personal information: giving notice of the goals and methods of handling personal information, the types of personal information to be handled, the period for retention, and other such matters; and obtain the consent of the individuals in accordance with law, except as otherwise provided by laws and administrative regulations.

The people pushing for similar ideas in Europe and the US insist that it won’t be abused, but we can look to China — and the fact that many of the proposed regulations we’re seeing today originated as part of China’s Great Firewall for censorship to see where they likely lead.

Filed Under: censorship, china, comments, free speech, real names, social credit, verification

Wherein The Copia Institute Tells The Supreme Court Not To Let Copyright Law Destroy Free Expression, A Rare Right We Ostensibly Have Left

Copyright

from the copy-that-precedent dept

I had to rewrite this post before it got published. I originally began it with some whimsy in response to the absurdity that copyright cases like these always engender. The idea that people could ever use their rights in previous expression to forbid someone else’s subsequent expression is almost too absurd to take seriously as an articulation of law. And, according to the Supreme Court, at least in the past, it wasn’t the law. Fair use is supposed to allow people use pre-existing expression to say new things. In fact, if the new expression did say new things, then it is absolutely should be found fair use.

In other words, the Second Circuit got things very wrong in the Andy Warhol/Prince prints case, and also the Ninth Circuit in the ComicMix/Dr. Seuss case. And so the Copia Institute filed an amicus brief at the Supreme Court, which agreed to review the Second Circuit’s decision, to say so.

But in light of the Supreme Court’s most recent decisions, I had to take out the whimsy. Assuming that Constitutional rights can survive this Court’s review has become an iffy proposition and not one where any lightheartedness can be tolerated. Our brief was all about pointing out how free speech is chilled when fair uses are prohibited, and how, if the Court would like not to see that constitutional right extinguished too, it needs to overturn the decision from the Second Circuit.

In that decision the Second Circuit last year had found that Andy Warhol’s Prince prints did not constitute a fair use of Lynn Goldsmith’s photograph of the musician Prince. But the problem with that decision isn’t just what it means for Warhol, or the Andy Warhol Foundation for the Visual Arts (AWF) that now controls the rights in his works, but what it means for everyone, because to find his work wasn’t fair use would mean that many fewer works ever could be fair uses in the future.

And such a reality would be in conflict with what the Supreme Court had previously said about fair use in the past. Sadly, even when it comes to copyright, the Supreme Court has had a few absolute clunkers of decisions, like Aereo (“smells like cable!”), Golan (snatching works back from the public domain), and Eldred (okaying the extending of copyright terms beyond all plausible usefulness). But even in those last two cases the Court still managed to reaffirm how copyright law was always supposed to comport with the First Amendment, and how fair use was a mechanism baked into copyright to ensure copyright vindicated those values. And the Court also has since reiterated how expansive fair use must be to vindicate them, most notably in the Google v. Oracle case last year, which reaffirmed its earlier fair use-protecting decision in Campbell v. Acuff-Rose (involving the 2LiveCrew parody of “Pretty Woman”).

Unfortunately, however, the Second Circuit’s decision was out of step of both those fair use decisions, which is why AWF petitioned for Supreme Court review, probably a big reason why review was granted, and why the Copia Institute has now weighed in to support their position with our own amicus brief.

In our brief we made the point that copyright law has to be consistent with two constitutional provisions: the Progress Clause, which gives Congress the authority to pass law that “promotes the progress of science and the useful arts,” and the First Amendment, which prohibits Congress from passing a law that impinges on free expression. As long as copyright law promotes expression, it is potentially constitutional, but if it impinges on expression, then it couldn’t be constitutional, under either provision. (We also pointed to the dissents by Justice Breyer in Golan and Eldred, which cogently and persuasively made these points, because with him leaving the Court this month those dissents are the only way he can continue to speak to the Court’s future consideration of such an important question of free expression.)  The issue here in this case, however, is not that Congress tried to make a copyright-related law that was unconstitutional, but that the Second Circuit interpreted its copyright law in a way that now rendered it unconstitutional with its limiting read of the fair use provision that would now stand to chill myriad future expression, which even the majority decision in Eldred cast aspersions on courts doing.

We also pointed out how it would be so chilling to new expression by citing the Ninth Circuit’s even more terrible decision in the ComicMix case, where, like the Second Circuit, it similarly had found the fair use provision to be much more narrowly applicable to new expression than the Supreme Court had, and we used that case to help illustrate why the reasoning of the Second Circuit was so untenable. In particular, both these decisions negated the degree to which the original works were transformed to convey new meanings not present in the original, extended the exclusive powers of a copyright holder far beyond what the statute itself authorized, and threatened to choke off new expression building on previous works for generations, given the extraordinary length of copyright terms. As the ComicMix case illustrated so saliently, if this be the rule, then the dead have the power to gag the living, and that reality cannot possibly be consistent with a law designed to foster the creation of new expression.

Then we concluded by noting that it’s a fallacy to presume that giving more and more power to a copyright holder translates into more expression. Not only is there plenty of evidence to show that more copyright power is unnecessary for stimulating more expression, but, what these cases illustrate is that more power will ultimately result in even less.

Other amicus briefs are available on the Supreme Court’s docket page. We now await the response from Goldsmith and her amici, and oral argument, currently scheduled for October 12. And assuming precedent and actual Constitutional text still matter at all, a decision hopefully reversing the Second Circuit and reaffirming the right to free expression that fair use doctrine is supposed to protect.

Filed Under: 1st amendment, andy warhol, copyright, free speech, lynn goldsmith, prince, supreme court
Companies: andy warhol foundation

Security Researchers: Indian Police Agencies Digitally Planted Evidence To Frame Activists

(Mis)Uses of Technology

from the tip-of-the-law-enforcement-fuckery-iceberg dept

Law enforcement agencies have access to very powerful digital tools. Thanks to companies with eyes on market expansion but very little consideration of moral or ethical issues, cops have the power to completely compromise phones, turning them into unwitting informants… or worse.

This blockbuster report — written by Andy Greenberg for Wired and based on research performed by Citizen Lab and SentinelOne — shows cops can use powerful malware to create the probable cause they need to start arresting people. The fix is in.

More than a year ago, forensic analysts revealed that unidentified hackers fabricated evidence on the computers of at least two activists arrested in Pune, India, in 2018, both of whom have languished in jail and, along with 13 others, face terrorism charges. Researchers at security firm SentinelOne and nonprofits Citizen Lab and Amnesty International have since linked that evidence fabrication to a broader hacking operation that targeted hundreds of individuals over nearly a decade, using phishing emails to infect targeted computers with spyware, as well as smartphone hacking tools sold by the Israeli hacking contractor NSO Group. But only now have SentinelOne’s researchers revealed ties between the hackers and a government entity: none other than the very same Indian police agency in the city of Pune that arrested multiple activists based on the fabricated evidence.

I get it. Who doesn’t like an easy day at work? Planting evidence makes arrests easy. Cops do it all the time. The difference here is the cops don’t have to carry around contraband on their persons or in their vehicles and wait for a situation to present itself.

Using powerful malware, officers can plant evidence whenever it’s most convenient for them and follow up with an arrest and device seizure that allows them access to the evidence they planted. And it’s not just for phones. The report notes that one activist arrested as the apparent result of planted evidence had his laptop compromised by police malware, allowing the Pune police to add 32 incriminating files to his hard drive.

It took researchers several months to confirm attribution. The link to the police department came via a recovery email address and phone number attached to compromised email accounts. That information was traced back to a police official in Pune who somehow thought it was wise to include his full name in the bogus recovery accounts.

That malware deployment has turned from passive to offensive shouldn’t come as a surprise. Very few malware developers care how their products are used and tend to make changes only when prompted by sanctions or months of negative press.

And it definitely shouldn’t come as a surprise that an element of the Indian government is abusing malware to plant evidence to shut down dissent. That’s the Indian government’s main goal at this point: to force the nation’s 1.2 billion residents into subservience by any means necessary. Whether it’s a law that abuses the notion of national security to turn residents into billions of data points or the government openly targeting critics via social media services (and threatening those services with fines and imprisonment when they fail to play along), the Indian government continues to expand the size of its thumb and, with any luck, will have an entire nation under it in the near future.

Filed Under: india, malware, planting evidence

Daily Deal: The 2022 Premier Adobe XD UI/UX Design Bundle

Deals

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

The 2022 Premier Adobe XD UI/UX Design Bundle has 6 courses to help sharpen your web design skills. Courses cover Premiere Pro, XD, Illustrator, and more. The bundle is on sale for $40.

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.

Do Not Expect Section 230 And The 1st Amendment To Save Antitrust Bills From Abuse

Policy

from the fix-the-damn-bill dept

Over the last few weeks, we’ve written quite a bit about the American Innovation and Choice Online Act (AICOA), which has become the central push by a bunch of folks in Congress to create a special antitrust bill for “big tech.” There are some good ideas in the bill, but, as we’ve been highlighting, a major problem is that the language in the bill is such that it could be abused by politically motivated politicians and law enforcement to go after perfectly reasonable content moderation decisions.

Indeed, Republicans have made it clear that they very much believe this bill will enable them to go after tech companies over content moderation decisions they dislike. Most recently, they’ve said that if the bill is clarified to say that it should not impact content moderation, that they will walk away from supporting the bill. That should, at the very least, give pause to everyone who keeps insisting that the bill can’t be abused to go after content moderation decisions.

We recently wrote about four Senators, led by Brian Schatz (with Ron Wyden, Tammy Baldwin, and Ben Ray Lujan), suggesting a very, very slight amendment to the bill, which would just make it explicit that the law shouldn’t be read to impact regular content moderation decisions.

In response to that Schatz letter, Rep. David Cicilline (who is spearheading the House version of the bill, while Senator Amy Klobuchar is handling the Senate side), sent back a letter insisting that Section 230 and the 1st Amendment already would prevent AICOA from being abused this way. Here’s a snippet of his letter.

Moreover, even if a covered platform’s discriminatory application of its terms of service materially harmed competition, the Act preserves platforms’ content-moderation-related defenses under current law. Section 5 of S. 2992 states expressly that “[n]othing in this Act may be construed to limit . . . the application of any law.”

One such law is Section 230(c) of the Communications Decency Act. Under that provision, social-media platforms may not “be treated as the publisher or speaker of any information provided by another information content provider.” They also may not be held civilly liable on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Accordingly, as with other liability statutes enacted since the passage of Section 230, Section 230 provides “an affirmative defense to liability under [the Act] for . . . the narrow set of defendants and conduct to which Section 230 applies.” Another still applicable law is the First Amendment to the U.S. Constitution, which the Act does not—and indeed, cannot—abrogate.

He then goes on in more detail as to why he believes the bill really cannot be abused. And while he does note that that he remains “committed to doing what is necessary to strengthen and improve the bill” and that he is happy to keep working with these Senators on it, the very clear message from his letter is that he’s pretty sure the bill is just fine as is, and that Section 230 and the 1st Amendment already protect against abuse.

Finally, your proposed language for the Act—although well intentioned—is already reflected in the base text of the bill. As detailed above, among other things, section 5 of S. 2992 preserves the continued applicability of current laws, including 47 U.S.C. § 230(c), that protect social-media platforms from liability for good-faith content moderation. Although I agree that legislation is necessary to address concerns with misinformation and content-moderation practices by dominant social-media platforms, I have consistently said that this legislation is not the avenue for doing so. As such, this legislation is narrowly tailored to address specific anticompetitive practices by dominant technology firms online. And as the Department of Justice has noted, it is a complement to and clarification of the antitrust laws as they apply to digital markets. As such, it does not supersede other laws.

Except… Cicilline is wrong. Very wrong. We at the Copia Institute this week signed onto a letter from TechFreedom and Free Press (two organizations that rarely agree with each other on policy issues) along with some expert academics explaining why.

The letter explains why Cicilline’s faith in Section 230 and the 1st Amendment is misplaced. It walks through, step by step, ways in which motivated state AGs (or even the DOJ) might get around those concerns, by claiming that moderation decisions were not actually content-based decisions, but business conduct, focused on anti-competitive behavior.

We don’t have to look far to see how that played out: the Malwarebytes case was an example of that in action. That was a case where a company was able to avoid Section 230 by claiming that a moderation decision (calling an app malware), was actually done for anti-competitive reasons. But with AICOA, we could get that on steroids. As the letter notes:

There is a substantial risk that courts will extend the Malwarebytes reasoning to exclude AICOA claims from Section 230 protection—including politically motivated claims aimed at content moderation. Specifically, courts may try to harmonize the two statutes—i.e., “strive to give effect to both”—by accepting some showing of anticompetitive results as sufficient to circumvent Section 230(c)(2)(A) in non-discrimination claims.

Anticompetitive animus is not required by the plain text of AICOA § 3(a)(3). Allowing only AICOA claims that allege (and, ultimately, prove) anticompetitive motivation to bypass Section 230’s protection would infer an intent requirement where Congress chose not to include one. While courts do sometimes infer intent requirements, they may reasonably conclude that doing so here would effectively read Section 3(a)(3) out of the statute. How could a platform with no direct stake in the market where competitive harm is alleged ever have an anticompetitive intent? Thus, how could any plaintiff ever bring a Section 3(a)(3) claim regarding “harm to competition” between downstream business users that would survive Section 230(c)(2)(A)? For Rep. Cicilline’s presumptions about Section 230 to be correct, courts would have to effectively render Section 3(a)(3) a nullity by holding that only claims of self-preferencing—but not discrimination between other business users—are actionable. This is an implausible reading that clearly contradicts what the present draft of AICOA says.

The Malwarebytes court relied heavily on Section 230’s “history and purpose” as evincing Congressional intent to “protect competition.” Here, there is explicit statutory language and legislative history from which a court could conclude that AICOA’s purpose is to prohibit anticompetitive results, regardless of motive—and thus to carve those claims out from Section 230. This result would apparently be statutorily required if another bill co-sponsored by Sen. Klobuchar becomes law: The SAFE TECH Act (S. 299) would amend Section 230 to exempt “any action brought under Federal or State antitrust law.”

There’s a lot more in the letter, but the point is clear. The idea that 230 will magically stop the abuse of this bill seems contradicted by the way the law is currently drafted, and actual cases on the books.

Filed Under: 1st amendment, aicoa, amy klobuchar, ben ray lujan, brian schatz, content moderation, david cicilline, ron wyden, section 230, tammy baldwin

U.S. Companies Don’t Much Want To Talk About Abortion Data Collection And Protection

(Mis)Uses of Technology

from the pick-a-side dept

In response to the Supreme Court’s recent assault on female bodily autonomy, numerous U.S. corporations have issued statements stating they’ll be paying for employee abortion travel. You’re to ignore, apparently, that many of these same companies continue to throw millions of dollars at the politicians responsible for turning the Supreme Court into a dangerous, cruel, legal norm-trampling joke:

With abortion now or soon to be illegal in countless states, there’s newfound concern about the privacy issues we’ve talked about for years, like how user location data, period tracking data, or browsing data can all be used against women seeking abortions and those looking to aid them… by both the state and violent vigilantes (thanks to flimsy U.S. standards on who can buy said data and how it can be used).

Reporters that have tried to ask modern data-hoovering companies if they’ll do better job securing data to ensure it can’t be used against women, or if they’ll fight efforts from states hunting abortion seekers and aiders in and out of state, have been met with dead silence. Not even rote statements on how the safety of women is important, but dead silence:

Motherboard asked a long line of companies including Facebook, Amazon, Twitter, TikTok, AT&T, Uber, and Snapchat if they’d hand over user data to law enforcement and not a single one was willing to commit to protecting women’s data:

Motherboard asked if each will provide data in response to requests from law enforcement if the case concerns users seeking or providing abortions, or some other context in which the agency is investigating abortions. Motherboard also asked generally what each company is planning to protect user data in a post-Roe America.

None of the companies answered the questions. Representatives from Twitter and Snapchat replied to say they were looking into the request, but they did not provide a statement or other response.

To be fair, company legal departments haven’t finished doing the risk calculations of showing a backbone and upsetting campaign contributors and law enforcement. They’ve also got to weigh the incalculable looming harms awaiting countless women against any potential lost snoopvertising revenues, so there’s that.

As public pressure grows, ham-fisted state enforcement begins, and the dynamics of the Roe repeal become harder for them to ignore, several of these companies may find something vaguely resembling a backbone in time. But the initial lack of any clarity or courage whatsoever in the face of creeping authoritarianism (and a high court gone completely off the rails) doesn’t inspire a whole lot of confidence.

Filed Under: abortion, abortion clinics, location data, period apps, privacy, surveillance, telecom, tracking, vigilantes
Companies: amazon, at&t, facebook, snapchat, tiktok

Copyright Has Failed For Game Streaming, So Alternatives Have Emerged

Culture

from the emergent-order dept

An interesting development in the digital world has been the continuing rise of gaming as a hugely popular activity, and a hugely profitable industry. Flowing from that rise and popularity, there is yet another fascinating aspect: streaming games for entertainment. The best-known example of this phenomenon is Twitch, now owned by Amazon.

A new paper by Amy Thomas, entitled “Can you play? An analysis of video game user-generated content policies” presents one of the first in-depth analyses of the copyright aspects of this new entertainment category, and its very particular user-generated content (UGC). As she points out, copyright has trouble dealing with game streaming. Copyright applies to many aspects – the underlying software, the images, the sounds, the scripts – and yet the game streamer is not infringing on these in any meaningful way, but building on them in a playful and creative sense that is beneficial for the game studio. Game streamers – especially the best ones – act as skilled and unpaid marketers that show off all the best elements of a game, often leading spectators to try it out themselves, if they have not already done so. Thomas writes:

With the slow pace of policy change and judicial interpretation by courts, it seems unlikely that the legal treatment of game UGC in copyright doctrine will change any time soon. Without intervention, this leaves UGC creators in an uneasy state of tolerated infringement, with an omnipresent threat of enforcement measures.

In the face of this doctrinal gordian knot, the video games industry has responded with an alternative mechanism of regulating user creativity: contract. Now, game companies routinely consider the user who approaches a game, not as a passive consumer, but as an active creator who is interested in what rights are licensed to them to interactively create with a game.

The contract is established with the End User License Agreement (EULA) that players must accept. Thomas looks at the EULAs of 30 games in order to understand how game companies are moving beyond the strict and unhelpful prohibitions of copyright to find ways to work with game streamers for mutual benefit.

She explores eight aspects of game streaming that are regulated through the EULA: videos, monetization, screenshots and game photography, soundtracks, fan works, merchandise, modding, and commercial use. One of the most striking results is that a surprisingly high number of game companies allow the monetization of their game content (7 without condition, 12 with). However, monetization has its limits, in the following way:

UGC policies mainly permit passive ad revenue, money gained from partnership programmes with online platforms, and fan donations. Paywalls in any form (e.g., Patreon), whilst strictly constituting ‘monetisation’, are almost universally prohibited amongst those rightsholders who attach conditions to the monetisation permission (with the exception of Mojang who allow for a 24-hour embargo of paywalled content). As such, it may be more accurate to define monetisation as a user’s entitlement to derive passive income from their UGC, but not the active solicitation of money from other users at the point of access. In this sense, monetisation of UGC is not transactional, but rather merit-based; other users may reward the creator of UGC with their time, subscription, or donation, but cannot be actively charged to access the content.

“Merit-based monetization” is a great way to describe patronage of the kind that true fans can provide. As previous posts on this blog have suggested, it represents one of the best alternatives to a copyright system that isn’t working for the digital world. The new research about game streaming from Thomas confirms both of those aspects.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Originally posted to Walled Culture.

Filed Under: copyright, streaming, terms of service, true fans, ugc, user generated content, video game streamers