This Week In Techdirt History: September 16th – 22nd

from the for-the-record dept

Five Years Ago

This week in 2013, we learned that in addition to communications the NSA was keeping millions of credit card transaction records, and then we finally got a look at the secrett FISA court ruling that permitted bulk phone data collection, in which it was revealed that Verizon and AT&T never fought back. The court also made the untrue claim that all of congress already knew all the details, and of course we wondered why the ruling was ever secret to begin with. Meanwhile, Michael Hayden was making some crazy claims about terrorists using Gmail and the US’s right to spy on the internet it invented, while also making some childish prognostications about Ed Snowden’s likely future of alcoholism — though other defenders of the agency were sticking to the same tired talking points, plus the new euphemism that Snowden’s activities were “masked by his job duties”.

Ten Years Ago

This week in 2008, Apple made the decision to block a competitive podcast app from the App Store, leading to significant backlash, while a court in Germany was getting in on similar action in its own way by banning VOIP on the iPhone at the behest of T-Mobile. NBC was bragging about its ability to lock down online Olympic footage, the movie industry was making yet another attempt to build the mythical “good” DRM, and the cops were continuing to bring in the RIAA to help with investigations where it would clearly be biased. There was a glimmer of light for online entertainment though: this was also the week that BandCamp launched, and its easy-to-build pages quickly became one of the best tools for musicians to distribute their work online.

Fifteen Years Ago

This week in 2003, as file-sharers were going deeper underground, a study showed that most online copies of movies were coming from industry insiders — which perhaps explains the industry’s insane plan for self-destructing DVDs. While RIAA head Carey Sherman was struggling to defend the agency’s lawsuit strategy (and totally missing the point), the Senate was gearing up for hearings over the lawsuits, and considering a bill to close the DMCA’s special subpoena powers — also a major issue in the ongoing court battle between the RIAA and Verizon.

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Comments on “This Week In Techdirt History: September 16th – 22nd”

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14 Comments
Tota Lee Backards says:

The KEY trick: assert "editorial" control yet keep immunity:

This struck me just today when saw it cleverly worked in:

On Friday, libertarian-leaning groups including FreedomWorks and the American Legislative Exchange Council sent a letter to Sessions expressing "fear" that his "inquiry will be to accomplish through intimidation what the First Amendment bars: interference with editorial judgment."

https://www.bloombergquint.com/business/2018/09/22/draft-order-for-trump-would-crack-down-on-google-facebook

NO! Totally negates the whole "platform" premise and asserts that hosting mechanisms are the actual editors!

Section 230 establishes The Public as Editors! "Platforms" are to be ONLY the technical means for conveying The Public’s Editorial choices.

CONVEYING, NOT CONTROLLING.

Section 230 is not difficult to understand. The content of a magazine IS the magazine, and can be mechanically printed on any number of presses, without the owner of a printing press being liable for the content. PERIOD.

Corporations which host "platforms" are exactly analogous to owners of a mechanical printing press. Printers do not have liability for what’s printed — within BROAD common law terms, and especially relevant on Techdirt: enforcing copyright law when obviously violated.

It’s ridiculous to hold a mechanism responsible: that’s what Section 230 immunizes against. But it’s even more ridiculous to hold that the the owner of a printing press has total editorial control over magazine content.

But because The Internet blurs the line between mechanical and editorial, corporate fiends now claim that owning the printing press DOES give them TOTAL editorial control over what WE want to publish!

Summary to here: For Section 230 immunity to be valid: 1) hosts must act in "good faith" according to common law standards, and 2) "platforms" are NOT to act as editors or publishers, but NEUTRAL / hands-off (again, by common law standards) with regard to persons and content.


By the way, the above is new boilerplate, won’t be wasted on Saturday for just the most ardent fanboys.


Tell ya what, Masnick. If you’ll refute that — not just quote and contradict but show / argue basis in law — then I’ll never darken your site. — Before accepting, keep in mind the very point under debate: I hold that "your site" is the part outside the Comments area! You exercise editorial control to initiate topics and write as wish, BUT must NOT control comments from ME or anyone in the part where you cede control to The Public by providing code for an HTML input form, visibly reserve no rights, and especially with your continual trumpeting belief in "free speech".

But, I know: "won’t dignify with answer", and this will be censored as always with your sneaky outside-common-law tricks. Just wishing that for once you’d try to deal with substance, not reassert corporate tricks as you’ve been doing for 20 years. My only consolation is that lack of response looks exactly like you can’t answer, and the censoring looks exactly like you don’t even want the question to be seen.

Anonymous Coward says:

Re: The KEY trick: assert "editorial" control yet keep immunity:

But it’s even more ridiculous to hold that the the owner of a printing press has total editorial control over magazine content.

I just called up a bunch of printing companies and, it’s really weird: for some reason, they won’t agree to print my magazine unless I pay them a bunch of money and meet all their technical and logistical requirements. They also expressed reservations when I said it would be the leading ISIS propaganda magazine and that they’d likely get famous for being the only press in the west producing such a publication – in fact most told me they were not interested in pursuing a contract. A couple asked to see sample pages in advance to better understand what I wanted to print.

I just don’t understand. I mean, as you say, obviously my right to free speech means all of these companies are required to print my magazine, no questions asked, the moment I request they do so. But they’re acting like they are allowed to choose which clients they take on, and charge us money for exercising our rights!

It’s insane. Can you offer any advice? What can I do? I tried screaming "common law! common law! common law!" into the phone, but they just hung up.

Anonymous Coward says:

Re: The KEY trick: assert "editorial" control yet keep immunity:

“Summary to here: For Section 230 immunity to be valid: 1) hosts must act in “good faith” according to common law standards, and 2) “platforms” are NOT to act as editors or publishers, but NEUTRAL / hands-off (again, by common law standards) with regard to persons and content.”

You can call it a summary all you want, but you’re just lying.

(And you don’t know what common law is.)

Stephen T. Stone (profile) says:

Re:

Section 230 establishes The Public as Editors! "Platforms" are to be ONLY the technical means for conveying The Public’s Editorial choices.

Please show me the law that says Twitter moderators cannot exercise the “editorial judgment” that allows them to delete speech that goes against the platform’s terms of service. Please show me the court ruling that says Twitter must be forced to host speech that the platform’s owners do not want associated with the platform. And please, please, please show me the statute, “common law”, or other legal precedent that says Twitter must be forced to let everyone onto the platform even if they habitually break the terms of service.

Mike Masnick (profile) says:

Re: The KEY trick: assert "editorial" control yet keep immunity:

Summary to here: For Section 230 immunity to be valid: 1) hosts must act in "good faith" according to common law standards, and 2) "platforms" are NOT to act as editors or publishers, but NEUTRAL / hands-off (again, by common law standards) with regard to persons and content.

Just to be clear: this is literally the exact opposite of what the law says or why it was written. Section (c)(2) of CDA 230 specifically says that no provider of an interactive computer service shall be held liable for "any action… to restrict access to" content. And the courts from Zeran onward have held that to be an incredibly broad prohibition.

Even more to prove that what you state here is clearly incorrect is to recognize that Congress directly said its reason for crafting CDA 230 was to remedy the mistake that happened in the Stratton Oakmont v. Prodigy case, in which Prodigy was held liable for the content left on its message boards because it had moderated some other content on those message boards.

In other words, CDA 230 was deliberately set up to encourage platforms to moderate content, including taking on an editorial/publisher role.

There are numerous points in the Zeran ruling that completely debunk your analysis, but we’ll just go with this one: "Congress’ purpose in providing the 230 immunity was thus evident.   Interactive computer services have millions of users…   The amount of information communicated via interactive computer services is therefore staggering.   The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.   It would be impossible for service providers to screen each of their millions of postings for possible problems.   Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.   Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."

That completely dispels with your nonsense interpretation. It specifically says that Congress recognized that computer services should have a free hand in determining which content should remain up or be taken down.

I await you now weaseling out of your promise to leave this site, because of course you won’t do that.

That One Guy (profile) says:

Re: Re: Re: The KEY trick: assert "editorial" control yet keep immunity:

Not ‘will be’, are, in literally the very next article no less.

Not that this is any surprise given they are a habitual liar, but still, rather funny for them to attempt to call out Mike assuming they wouldn’t get a response and they could use that to their (fictional) advantage, get a response, and then almost immediately prove themself a liar yet again.

Same Screen had I looked before clicking "reply" says:

Re: Re: The KEY trick: assert "editorial" control yet keep immunity:

Oh, you did reply.

I’m not “weaseling” out, I already stated that was persiflage. Read it: I say YOUR site is OUTSIDE the Comments area. I cannot access it. Sheesh. One day I’ll learn that you don’t read all.

MY PART OF THE SITE IS RIGHT HERE. SEE? I’m on place that YOU provide for The Public. You HAVE ceded rights.

Now, you have as always left out “GOOD FAITH” as the first and primary requirement for sites to act.

Here’s the text:

> “No provider or user of an interactive computer service shall be held liable on account of-

> (A) 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…”

That just states causes valid in common law. It’s a requirement for simple decency — the “D” in CDA. Not controversial so far…

As for rest, we disagree.

Delay due to NOT expecting reply and I avoid the sheer cesspit ad hom, certainly don’t waste time checking after you’ve ignored me for years. — Suddenly you have no interesting comments here. I do you a favor of ginning up fanboy hate, and get no thanks as usual!

Killercool (profile) says:

Re: Lee

No, no, no. You see, HIS website is privately owned, so those rules don’t apply. He can moderate all he wants, since it’s his property. It’s only OTHER people’s websites that are automagically "public" or "utilities" or whatever nonsense he’s claiming gets things done his way.

Then again, even state-owned papers in despot-ruled backwaters get more editorial control than what he thinks applies to Twitter.

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