EA College Sports Is Back, But Some Schools Are Opting Out Until Name, Image, Likeness Rules Are Created To Compensate Athletes

from the hut-hut-punt dept

Way back in 2013, a class action lawsuit started by ex-UCLA basketball star Ed O'Bannon resulted ultimately in the NCAA found to have violated antitrust laws. The antitrust bit comes from a waiver the NCAA forces student athletes to sign that removes their ability to be compensated for their names, images, or likeness (NIL). While this restriction has been in place at the NCAA for eons, this case came about due to O'Bannon discovering that he was represented in EA Sports' NCAA Basketball game in a "classic" team loaded into the game.

The knock on effect to all of this was that 2010 was the last year EA Sports offered its college basketball game and 2013, the year the lawsuit came about, was the last year the company made its vaunted NCAA Football game. The reason given by the company was that schools were shying away from those games to avoid further lawsuits. For the next seven years, EA Sports stuck to professional sports.

But now, in 2021, the company has announced that the college football series is back.

EA Sports actually dropped a few Easter eggs pointing to the possibility. In the past two editions of Madden, some college football programs were included as part of the "Face of the Franchise" story mode of the game. EA Sports vice president and general manager Daryl Holt told ESPN that while it wasn't a conscious decision to do that as a test run for the return of a college football game, there was positive feedback and returns, particularly in those college markets.

"That was another just check mark to go -- we know [fans] are itching for it and we know we can develop and deliver a great college football experience," Holt said. "So why are we waiting?"

So, what changed? Apparently not much beyond the Collegiate Licensing Community and its members once again being willing to license school names, stadiums, and imagery to EA Sports. Why there is this sudden change of heart isn't entirely clear at the time of this writing, but it is worth noting that there is a lot of talk and pressure on the NCAA to create new NIL rules so that athletes can get some compensation for their likenesses.

Still, with those NIL rules still theoretical as of now, not all schools are opting in. Notre Dame had already indicated that they were pulling out of the game, citing the lack of NIL rules being established. And now Northwestern University has done likewise.

According to a report from Steve Greenberg of the Chicago Sun-Times, the Northwestern football team is opting out of the upcoming college football video game from EA Sports. The school wants NIL rules to be created and finalized before players can take part in the highly-anticipated video game. Northwestern is the second known school to opt-out of the game with Notre Dame being the first. It was also reported by Northwestern made the decision in January before EA announced college football is coming back.

So, what does this all mean? Well, it's a bit of a risky venture for EA Sports to take, given that any NCAA Football title as of now would have to be given an "incomplete" grade. The Big 10 without Northwestern? College football without Notre Dame? And what if more schools start getting pressure from their students and athletes and start to go down the same path?

What this ultimately highlights is that the NCAA cartel should get its shit together and work out an NIL compensation arrangement with its athletes before once again attempting to dunk its licensing cookie into video games to try to enrich itself. That this is still an unsettled topic of conversation is baffling.

Filed Under: college sports, ea sports, ed o'bannon, likeness rights, video games
Companies: ea, ncaa

FBI Director Uses January 6 Insurrection To, Once Again, Ask For Encryption Backdoors

from the FBI-really-needs-to-write-some-new-material dept

FBI Director Chris Wray needs to shut the fuck up about encryption.

Let me explain sum up:

For years, consecutive FBI Directors have claimed encryption is preventing law enforcement from doing law enforcement. And for years, public records, efforts by researchers, and court documents have shown encryption isn't much of an impediment to investigations.

Most importantly -- in the FBI's case -- the agency overstated the amount of locked devices in its possession for years while agitating for encryption backdoors. It turns out the FBI's "locked device" spreadsheet performed some faulty math, greatly misstating the number of locked devices in its possession. While the FBI said it has over 8,000 impregnable electronics allegedly preventing law enforcement from investigating crimes, the correct amount is expected to be less than a quarter of that.

That discovery was made in May 2018. The FBI has yet to provide an accurate count of these devices.

So. Shut. The fuck. Up.

Wray is shameless and incapable of shutting the fuck up, even after the agency admitted to Congressional oversight it really didn't know how many locked devices it had or how often encryption actually prevented investigators from investigating.

And yet, here's Chris Wray, leveraging the January 6th insurrection to complain about encryption yet again.

There doesn't appear to be any lack of open source data capable of aiding the FBI in its investigation of this event. Hundreds have already been charged for their participation in the raid on the US Capitol building.

This event has forced US law enforcement to admit domestic terrorism is an actual threat -- a threat propelled mainly by white extremists and others aligned with the pathetic ideal that white makes right. This threat includes far too many law enforcement officers, who have also aligned themselves with the same ideals. That's why it's been ignored for so long and that's why it's a much bigger problem now than it should be.

But here's what Chris Wray has chosen to focus on with his allotted testimonial time before the Senate: encryption. Wray says it's a "lawful access" problem. And he begins with what can only be considered an overstatement of the threat, considering the FBI has done nothing but overstate the problem for years.

The problems caused by law enforcement agencies’ inability to access electronic evidence continue to grow. Increasingly, commercial device manufacturers have employed encryption in such a manner that only the device users can access the content of the devices. This is commonly referred to as “user-only-access” device encryption. Similarly, more and more communications service providers are designing their platforms and apps such that only the parties to the communication can access the content. This is generally known as “end-to-end” encryption. The proliferation of end-to-end and user-only-access encryption is a serious issue that increasingly limits law enforcement’s ability, even after obtaining a lawful warrant or court order, to access critical evidence and information needed to disrupt threats, protect the public, and bring perpetrators to justice.

Yes, encryption can prevent "easy" investigative efforts. But it doesn't prevent investigations. Lots of data and communications can be obtained from service providers and cloud services that store copies of their own. There are at least a couple of vendors providing law enforcement with forensic tools that appear capable of pulling vast amounts of data from "locked" devices. And while it may be accurate to say the "problem" continues to "grow" given the increased deployment of encryption, the FBI has yet to honestly depict the problem it's already facing, so there's no way of quantifying this "growth" to judge its impact on investigations.

And Wray continues to be dishonest about what he wants. He wants encryption backdoors. But when asked directly, he'll claim he doesn't want backdoors. Instead, he wants a mythical form of encryption that is capable of protecting users from malicious threats but not government entities armed with a warrant.

The FBI remains a strong advocate for the wide and consistent use of responsibly managed encryption, encryption that providers can decrypt and provide to law enforcement when served with a legal order.

This sure sounds like a backdoor, but Chris Wray is in permanent denial.

We are not asking for, and do not want, any “backdoor,” that is, for encryption to be weakened or compromised so that it can be defeated from the outside by law enforcement or anyone else.

It's the everyone else who is wrong.

Unfortunately, too much of the debate over lawful access has revolved around discussions of this “backdoor” straw man instead of what we really want and need.

LOL. Get fucked, Chris. The reason no serious security professional agrees this is possible is because it isn't. A hole for law enforcement is a hole for anyone. Once providers start storing encryption keys for law enforcement, those encryption keys are a target for malicious hackers. Criminals who find the keys will do the same thing Wray is asking companies to do, bypassing encryption to obtain communications and personal data.

The only person trotting out straw men is the FBI Director, who appears to believe any counterargument is made in bad faith. His straw men may be uncaptured terrorists or dead kids or whatever, but they're still straw men, especially considering the FBI still has yet to provide an accurate count of encrypted devices in its possession.

And those are his straw men. Wray cites both terrorist attacks and child sexual exploitation as reasons to eliminate actually secure encryption. This ignores the FBI's willingness to radicalize people solely for the purpose of arresting them on terrorist charges. And it ignores the fact the FBI has -- on more than one occasion -- seized and operated servers distributing child porn in order to catch other child porn distributors. Whether or not we agree with the FBI's actions in these cases, it illustrates breaking encryption isn't the only way to address these problems.

Wray also claims the rest of the law enforcement community is suffering from the proliferation of end-to-end encryption.

Our state and local law enforcement partners have been consistently advising the FBI that they, too, are experiencing similar end-to-end and user-only-access encryption challenges, which are now being felt across the full range of state and local crime. Many report that even relatively unsophisticated criminal groups, like street gangs, are frequently using user-only-access encrypted smartphones and end-to-end encrypted communications apps to shield their activities from detection or disruption.

But this really hasn't been observed by anyone else but Wray. (And we know Wray can't be trusted.) The FBI has made constant noise about encryption. Local agencies -- despite having far fewer resources -- haven't said much publicly about encryption or its challenges, outside of the outsized racket whipped up by Manhattan DA Cy Vance. And Vance is no more trustworthy or credible than Chris Wray.

Chris Wray will take any chance given to complain about encryption and a lack of "lawful access." But he doesn't have facts or history on his side.

Filed Under: backdoors, chris wray, encryption, fbi, going dark, january 6

Reporter Sues DOJ To See If It Is Trying To Help Devin Nunes Unmask @DevinCow Twitter Account

from the is-the-fbi-investigating-a-satirical-cow? dept

As I'm pretty sure most of you know, Rep. Devin Nunes has been filing a ton of blatant SLAPP lawsuits trying to silence criticism and mockery of him, as well as critical reporting. Kind of ironic for a guy who co-sponsored a bill to discourage frivolous lawsuits and who has regularly presented himself as a free speech supporter. What kicked off those lawsuits, somewhat incredibly, was a satirical Twitter account, @DevinCow (mocking Devin Nunes for repeatedly holding himself out as a "dairy farmer" from Tulare California when it turns out his family farm moved to Iowa years ago).

You may also know that at the time Nunes sued the satirical cow for making fun of him online, the @DevinCow account had a grand total of 1,204 followers. Within a couple days, @DevinCow had 400k followers and had surpassed Nunes' himself. Today the Cow has 772k followers and is one of the most interesting Twitter accounts online, with a huge pasture of followers. Pretty incredible.

What a lot of people don't realize is that the case against the cow is still going on, and Nunes and his lawyer, Steven Biss, have constantly gone to fairly extreme lengths just try to figure out who is behind the Cow account. The craziest of all was that Biss used a totally unrelated case, that did not involve Nunes, and then abused his subpoena powers to ask Twitter to reveal who was behind @DevinCow, despite the Cow being totally unrelated to the case. Biss and Nunes made up some nonsense about how the cow was connected, but it was clearly ridiculous, and a judge rejected it.

Of course, that raised lots of concerns about whether or not Nunes might abuse other methods to try to uncover the cow. Freelance journalist Shawn Musgrave filed a FOIA request with the Justice Department and the FBI to see if Nunes might have sought to use either organization to try to uncover the Cow's identity. After all, Nunes was (incredibly) the chair of the House Intelligence Committee and would have greater access to the FBI and its surveillance tools than just about any other Congressional Representative. Musgrave made it abundantly clear in his FOIA that he was not seeking to identify the Cow and did not want any information that might reveal the Cow's identity. He just wanted to know if the DOJ or the FBI had sought to uncover the Cow's identity.

However, the DOJ and FBI have failed to comply, so now Musgrave is suing the DOJ to try to get them to actually properly respond to the FOIA request.

As a result of the repeated efforts by Cong. Nunes and his legal team to unmask @DevinCow—of which the above instances are merely examples—Musgrave filed two FOIA requests—with the permission of @DevinCow’s owner—to ascertain the degree to which FBI and DOJ—with or without Cong. Nunes’s involvement—have attempted to identify the anonymous owner of the @DevinCow Twitter account.

The lawsuit explains what the FOIA request sought:

On 9 November 2020, Musgrave submitted to FBI a request for five categories of records: (1) all main file records about the @DevinCow Twitter account; (2) all cross-references in the Central Records System about the @DevinCow Twitter account; (3) all internal emails or other correspondence records created or maintained by the Office of Congressional Affairs mentioning the @DevinCow Twitter account; (4) all emails in the FBI email system(s) or personal email folders on personal computers used by the Washington Field Office and San Francisco Field Office mentioning the @DevinCow Twitter account; and (5) all emails in the FBI email system(s) or personal email folders on personal computers used by the Criminal, Cyber, Response, and Services Branch mentioning the @DevinCow Twitter account.

Musgrave added, “Please note that we do not wish to know the identity of the owner of the @DevinCow account, so the FBI should automatically redact any personally identifying information about that individual while releasing the contextual information which would show that PII was redacted. We are only interested in records discussing the account and/or the possible identification of its owner, not in the identity itself.”

Just a week later (which is insanely fast for FBI FOIA requests), the FBI was giving a Glomar response that it can "neither confirm nor deny" the existence of such records, and also claiming it was doing so to protect the privacy of third party individuals. But, of course, that's nonsense, since the request made it abundantly clear that the FBI should redact any such information. Musgrave appealed:

“It is nonsensical to issue a (b)(6) Glomar response to a request for records about an anonymous Twitter account, especially when the request has formally indicated that we have no interest in learning the identity of the user.”

On February 1st, the FBI rejected the appeal and stuck with its Glomar response.

So now, Musgrave has sued (with some very good FOIA lawyers) to try to force the FBI/DOJ to actually respond to the FOIA request for real. Should be an interesting case to follow.

Filed Under: devin nunes, devincow, doj, fbi, foia, free speech, satire, shawn musgrave, transparency

Moving the Web Beyond Third-Party Identifiers

from the privacy-and-cookies dept

(This piece overlaps a bit with Mike’s piece from yesterday, “How the Third-Party Cookie Crumbles”; Mike graciously agreed to run this one anyway, so that it can offer additional context for why Google’s news can be seen as a meaningful step forward for privacy.)

Privacy is a complex and critical issue shaping the future of our internet experience and the internet economy. This week there were two major developments: first, the State of Virginia passed a new data protection law, the Consumer Data Protection Act (CDPA), which has been compared to Europe’s General Data Protection Regulation; and second, Google announced that it would move away from all forms of third-party identifiers for Web advertising, rather than look to replace cookies with newer techniques like hashes of personally identifiable information (PII). The ink is still drying on the Virginia law and its effective date isn’t until 2023, meaning it may be preempted by federal law if this Congress moves a privacy bill forward. But Google’s action will change the market immediately. While the road ahead is long and there are many questions left to answer, moving the Web beyond cross-site tracking is a clear step forward.

We’re in the midst of a global conversation about what the future of the internet should look like, across many dimensions. In privacy, one huge part of that discussion, it’s not good enough in 2021 to say that user choice means “take it or leave it”; companies are expected to provide full-featured experiences with meaningful privacy options, including for advertising-based services. These heightened expectations—some set by law, some by the market—challenge existing assumptions around business models and revenue streams in a major way. As a result, the ecosystem must evolve away from its current state toward a future that offers a richer diversity of models and user experiences.

Google’s Privacy Sandbox, in particular, could be a big step forward along that evolutionary path. It’s plausible that a combination of subscription services, contextual advertising and more privacy-preserving techniques for learning can collectively match or even grow the pie for advertising revenue beyond what it is today, while providing users with compelling and meaningful choices that don’t involve cross-site tracking. But that can’t be determined until new services are built, offered and measured at scale.

And sometimes, to make change happen, band-aids need to be ripped off. By ending its support for third-party identifiers on the Web, that’s what Google is doing. Critics of the move will focus on the short-term impact for those smaller advertisers who currently rely on third-party identifiers and tracking to target specific audiences, and will need to adapt their methods and strategies significantly. That concern is understandable; level playing fields are important, and centralization in the advertising ecosystem is widely perceived to be a problem. However, the writing has been on the wall for a long time for third-party identifiers and cross-site tracking. Firefox blocked third-party cookies by default in September 2019; Apple’s Safari followed suit in April 2020—Firefox first made moves to block third-party cookies as far back as 2013, but it was, then, an idea ahead of its time. And the problem was never the cookies per se; it was the tracking they powered.

As for leveling the playing field for the future, working through standards bodies is an established approach for Web companies to share information and innovate collectively. Google’s engagement with the W3C should, hopefully, help open doors for other advertisers, limiting any reinforcement effects for Google’s position in Web advertising.

Further, limits on third-party tracking do not apply to first-party behavior, where a company tracks the pages on its own site that a user visits, for example when a shopping website remembers products that a user viewed in order to recommend other items of potential interest. While first-party relationships are important and offer clear positive value, it’s also not hard to imagine privacy-invasive acts that use solely first-party information. But Google’s moves must be contextualized within the backdrop of rapidly evolving privacy law—including the Virginia data protection law that just passed. From that perspective, they’re not a delaying tactic nor a substitute for legislation, but rather a complementary piece, and in particular a way to catalyze much-needed new thinking and new business models for advertising.

I don’t think it’s possible for Google to put privacy advocates’ minds at ease concerning its first-party practices through voluntary action. To stop capitalizing totally on its visibility into activity within its network would leave so much money on the table Google might be violating its fiduciary duty as a public company to serve its shareholders' interest. If it cleared that hurdle and stopped anyway, what would prevent the company from going back and doing it later? The only sustainable answer for first-party privacy concerns is legislation. And that kind of legislation will struggle to be feasible until new techniques and new business models have been tested and built. And that more than anything is the dilemma I think Google sees, and is working constructively to address.

Often, private sector privacy reforms are derided as merely scratching the surface of a deeper business model problem. While there’s much more to be done, moving beyond third-party identifiers goes deeper, and deserves broad attention and engagement to help preserve good balances going forward.

Filed Under: 3rd party cookies, cookies, identification, privacy
Companies: google

Daily Deal: The Complete QuickBooks Desktop 2021 Certification Bundle

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

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Parler Drops Its Loser Of A Lawsuit Against Amazon In Federal Court, Files Equally Dumb New Lawsuit In State Court

from the that-ain't-gonna-work-champ dept

As you may recall, Parler had filed a ridiculously weak antitrust lawsuit against Amazon the day after it had its AWS account suspended. A judge easily rejected Parler's request for an injunction, and made it pretty clear Parler's chances of succeeding were slim to none. Parler, which has since found a new host, had indicated it would file an amended complaint, but instead it chose to drop that lawsuit in federal court and file an equally laughable lawsuit in state court in Washington (though with some additional lawyers).

Rather than claiming antitrust (which was never going to work) the new complaint claims breach of contract, defamation and deceptive and unfair practices. The complaint makes a big deal over the fact that in December Twitter and Amazon signed an agreement to use AWS for hosting some Twitter content, and hints repeatedly that Amazon's move a month later was to help Twitter stomp out a competitor. But this is all just random conspiracy theory nonsense, and not at all how any of this actually works.

The defamation claim is particularly silly.

On January 9, 2021, AWS sent an email to Parler declaring that AWS would indefinitely suspend Parler’s service, claiming that Parler was unable or unwilling “to remove content that encourages or incites violence against others.” AWS or one of its employees publicly leaked that email in bad faith to BuzzFeed at or around the same time AWS sent the email to Parler.

AWS’s email was false and AWS knew it was false. Parler was willing and able to remove such content and AWS knew that, because there was a lengthy history between the parties of Parler removing such content as quickly as AWS brought it to Parler’s attention. What is more, AWS was well aware that Parler was testing a new AI-based system to remove such content before it was even posted, that Parler had success with initial testing of the program, and that Parler had in fact shared those testing results with AWS.

The AWS email received wide play in the media.

This itself is kind of fascinating. Because even though we had highlighted that Parler takes down content, publicly it had claimed over and over again that it did not take down content. In fact, nearly all of Parler's brand was built on it's (misleading) claim to not do content moderation. So, how the hell could Amazon claiming that Parler wasn't doing content moderation be defamatory when that's the very reputation that Parler itself tried to highlight for itself?!?

Also, uh, this isn't going to fly in any court:

Parler is not a public figure and the success of its “content moderation” policies was not a matter of public concern until Google and AWS decided to make it one, but the defendant cannot by a defamatory statement turn a private matter into a public one or all matters would be public in nature.

No, sorry, Parler was very much a public figure way before Google and AWS's decisions.

The complaint also argues, repeatedly, that AWS had always been happy with Parler until it told it was suspending the account, but the filings in the original lawsuit in federal court clearly indicated otherwise, and noted that Amazon had reached out to Parler months earlier. I'm confused as to whether Parler's lawyer thinks that Amazon won't immediately point that out? Also, it seems decently likely that Amazon is going to try to get the case removed right back to federal court, so it's not clear why Parler thinks it can avoid federal court with this case. The whole thing, once again, seems performative and stands just as much of a chance as the original.

Filed Under: antitrust, aws, breach of contract, content moderation, defamation
Companies: amazon, parler

T-Mobile Promised Major Job Growth Post Sprint Merger. SEC Filings Show The Exact Opposite Happened

from the Charlie-Brown-and-Lucy-Football dept

When T-Mobile was selling its $26 billion Sprint merger to regulators, it told anybody who'd listen that the deal would create a parade of new jobs. In a 2019 blog post that still hasn't been deleted (amateur move, guys), ex-T-Mobile CEO John Legere didn't mince words in his predictions:

"So, let me be really clear on this increasingly important topic. This merger is all about creating new, high-quality, high-paying jobs, and the New T-Mobile will be jobs-positive from Day One and every day thereafter. That’s not just a promise. That’s not just a commitment. It’s a fact."

"...These combined efforts will create nearly 5,600 new American customer care jobs by 2021."

2021 is here, and a recent SEC filing shows that the company has actually lost about 5,000 jobs in a little under a year and a half. That number could potentially be even higher. As noted last April, T-Mobile quickly set about immediately shuttering its Metro prepaid division (a decision that had nothing to do with COVID), resulting in an estimated 6,000 layoffs (something T-Mobile said wouldn't happen). Last June, the company fired hundreds of additional Sprint employees during a conference call that lasted all of six minutes.

There's likely more where that came from, as the company is still operating dual headquarters in both the Pacific Northwest and Overland Park, Kansas. In most mergers like this, the acquiring company tries to keep things the same for about a year to keep folks calm before the hatchets are unveiled.

Of course, this is all something that consumer groups, antitrust experts, unions, and even Wall Street stock jocks predicted. Most of those folks predicted that, even though it would take time, the deal would eliminate anywhere between 10,000 and 30,000 jobs. That's in addition to their complaints that the deal effectively reduced US wireless competition by 25% via 4-3 carrier consolidation, something that historically always, sooner or later, results in higher prices for consumers (see: Canada, Ireland, Germany).

Granted in his original blog post, Legere made fun of those critics and insisted they were simply making shit up:

"I guess if the real numbers don’t tell the story you want, you can just make up new ones? It’s actually offensive."

Yes, accurate predictions are so offensive. Granted John Legere, who successfully built T-Mobile from an also-ran into a major competitor (thanks in part to regulators blocking AT&T's 2011 merger with T-Mobile), was quick to leave the company shortly after the deal, offloading his Central Park West Penthouse to Giorgio Armani for $17.5 million (how many employee jobs is that?). And as Light Reading notes, T-Mobile's revenues continue to soar as it continues job cuts it promised wouldn't happen:

"In 2015, T-Mobile was making about $650,000 per employee. Last year, it generated almost $912,000. For workers at the company, that is not a source of comfort."

Granted this happens absolutely every time there's a major telecom merger. Companies throw out bullshit job growth claims, knowing full well such consolidation inevitably will result in massive job cuts a year or two later as redundant positions are eliminated. The press hypes the false merger "synergy" claims, then (usually) can't be bothered to follow up with reports highlighting how the promises were empty. It's a massive ouroboros of dysfunction, and no matter how many times we live through the exact same experience (AT&T's countless mergers, Verizon's countless mergers, Comcast's repeated mergers), America has a severe allergy to learning absolutely anything from experience.

Mindless consolidation and "growth for growth's sake" hurts employees, markets, and consumers. Full stop. Regulators could have forced Sprint to find another suitor, preferably one that didn't result in a loss of overall competitors (Dish, Comcast, Charter, Google, Amazon). Instead we signed off on another massive deal, based on a parade of false promises. Then, in two or three years when US wireless prices (already some of the highest in the developed world) are even higher, everybody will stand around with a dumb look on their faces wondering how exactly we got this point. Wash, rinse, repeat.

Filed Under: competition, hiring, jobs, john legere, lies, merger, mobile service
Companies: sprint, t-mobile

Is The Digital Services Act Going To Make A Huge Mess Of Website Liability In The EU?

from the sounds-like-it dept

I've been so focused of late on issues related to Section 230 in the US, that I've had barely any time to devote to the Digital Services Act in the EU, which is the EU's ongoing efforts to rewrite intermediary law in the EU. The reports I have followed have been a mix of concerns, with the admission that it at least appeared that EU politicians were trying to get a good grasp on the issues and trade-offs and not rush in with a totally horrible plan. That doesn't mean the end result is good, but so far it does not appear to be totally disconnected from reality, as with many similar proposals we've seen around the globe.

Joan Barata has a good report looking at the the current state of intermediary liability in the latest DSA proposal and notes that it's... kind of a mess. Basically, as is often the case with intermediary liability laws, very few policymakers have experience with the actual issues, and thus they can't take into account how various provisions will actually work in practice. Frequently that means that proposals are worded vaguely, and no one will really know what they mean until after a series of lengthy, confusing, and expensive court decisions.

As Barata notes, the DSA appears to retain the basic liability protections that have existed for the last two decades in the EU in the form of the E-commerce Directive (which is weaker than Section 230's protections in the US, but are roughly equivalent in saying that websites should not be held liable for 3rd party content). The big difference with the E-commerce Directive is that websites do need to remove content "upon obtaining actual knowledge or awareness" of "illegal activities." Of course, what exactly is meant by "obtaining actual knowledge or awareness" becomes a tricky question at times and did involve some lawsuits.

The DSA, though, moves the liability situation further away from Section 230 and more to a DMCA style "safe harbor" situation, by establishing that knowledge can be obtained through "notices":

Apart from the provisions included in Article 5, Article 14(3) establishes that notice and action mechanisms fulfilling certain criteria give rise to actual knowledge or awareness.

The DSA tries to avoid the classic "moderator's dilemma" issue by saying that even though knowledge or awareness could make you liable, you don't necessarily lose your liability protections if you carry out your own investigations:

Article 6 clarifies that intermediaries may not lose their liability protections “solely because they carry out voluntary own initiative investigations or other activities aimed at detecting, identifying and removing, or disabling of access to, illegal content, or take the necessary measures to comply with the requirements of Union law, including those set out in this Regulation”.

But what does that mean in practice? You can lose the protections if you know about illegal stuff on your website, but you don't lose them if you are doing your own investigation. But at what point does finding stuff during your own investigation magically morph into knowledge or awareness? Well, the answer seems... contradictory. Basically, it sounds like the current draft of the DSA hangs an awful lot of weight on the word "solely." If illegal content is discovered "solely" via an investigation, then a site might retain its protections -- but if that same content is discovered in any other way, then the site may have knowledge and face liability. This... is going to be confusing.

And, again, this tends to be the problem with all of these proposals. They want to encourage sites to moderate to clean up bad stuff, but if they mandate liability for having knowledge of bad stuff, you incentivize less searching. But now you are still left in a weird, twisted position, where you say "okay, you can search, but if you find stuff, you're no longer liable for it... unless you also have separate knowledge of it." And how do you manage that?

This is actually one of the many reasons why -- despite all the criticism it receives -- Section 230 gets the balance right. It gives websites a free hand in moderating content, but does so in a way that many, many other forces come into play in pressuring the company to be a good actor in the space. Public pressure, user concerns, media coverage, and advertiser pressure, all serve to push websites to improve their moderation practices. Too many people, however, think that without a law mandating such things, nothing happens. That's wrong. We're seeing every website continually work to create better policies not because of the risk of some confusing and potentially very costly law, but because they don't want their site to be a dumpster fire of awful.

Filed Under: confusion, digital services act, dsa, e-commerce directive, eu, intermediary liability, knowledge, monitoring, notices, section 230

Twitter Opposes 'Tweet' Trademark Application For Bird Food Company

from the chirp dept

Way back in the simpler time of 2010, Mike wrote up an interesting piece on Twitter's trademark enforcement policies and how it handles third parties that interact with Twitter using Twitter-related terms. In short, Twitter built a reputation for itself in freely licensing these terms for use by third parties, believing that tools that made Twitter more useful were good for the platform overall. It was a smart, productive way of looking at protecting trademarks so as not to lose them to genericide.

Which is part of what makes it sort of strange that Twitter seems to take the opposite tact when it comes to totally unrelated business entities attempting to trademark terms like "tweet."

On Friday, Twitter filed a notice of opposition before the Trademark Trial and Appeal Board against applicant Puerto Rican company B. Fernandez & Hnos.’s application for the TWEET mark, asserting that it will be harmed if the applicant’s mark is registered.

Twitter pointed out that the messages on its platform are called tweets. The marks are used in connection with the aforementioned goods and services, along with other goods and services. Twitter argued that it has established extensive common law rights in the TWEET mark in connection with its goods and services and that the TWEET mark is distinctive.

There's no doubt that "tweet" has taken on fame as a result of Twitter's platform, trademarks, and marketing of itself. But there is still a matter of actual or potential customer confusion on specific uses to contend with and the problem with that is that B. Fernandez & Hnos. is a maker of bird food. In that context, the term "tweet" doesn't call back to Twitter at all, because it fits naturally in with the nature of the product in question.

For some reason, Twitter's opposition seems to think the opposite.

Twitter claimed that the applicant seeks to register the TWEET mark in International Class 31, covering bird food. However, Twitter alleged that “consumers will likely associate Applicant’s TWEET Mark with Twitter and the TWEET Goods and Service and will assume there is a relationship between Applicant and Twitter. Twitter asserted that the applicant’s TWEET mark is identical to its TWEET mark, would be “advertised and/or sold in identical or similar channels of trade as Twitter’s and Services”, and would “conflict with Twitter’s lawful and exclusive right to use the TWEET Mark nationwide in connection with Twitter’s Goods and Services.” Consequently, Twitter averred that this similarity is likely to cause consumer confusion, mistake or deception regarding the source, origin, or sponsorship of the respective goods and services.

In other words, Twitter's "tweet" is so famous that a brand of bird food that includes "tweet" will be seen as associated more with Twitter than with bird food. And that's plainly ridiculous.

And so, again, we're left with a company that acts quite good on one set of trademark issues, but is, at least, a bit overly aggressive on others.

Filed Under: bird food, confusion, dilution, trademark, tweet
Companies: twitter