Anti-Cheat Software Continues To Be The New DRM In Pissing Off Legit Customers

(Mis)Uses of Technology

from the screw-the-customers dept

Long-time readers here will know that one of the consistent themes over the years when it comes to video game DRM has been the absolute plethora of anecdotal stories you get about how DRM screwed up the playing experience for legitimate customers. Performance issues, inability to play online or single-player campaigns due to DRM failures, intrusive kernel-level access issues; the list goes on and on.

Well, if you’ve been paying attention over the last couple of years, anti-cheat software is quickly becoming the new DRM. Access to root layers of the computer complaints, complaints about performance effects, complaints about how the software tracks customer behavior, and now finally we have the good old “software isn’t letting me play my game” type of complaint. This revolves around Kotaku’s Luke Plunkett, whose writing I’ve always found valuable, attempting to review EA’s latest FIFA game.

I have reviewed FIFA in some capacity on this website for well over a decade, but regular readers who are also football fans may have noticed I haven’t said a word about it this year. That’s because, over a month after the PC version’s release, I am still locked out of it thanks to a broken, over-zealous example of anti-cheat protection.

Publisher EA uses Easy Anti-Cheat, which has given me an error preventing me from even launching the game that every published workaround—from running the program as an administrator to disabling overlays (?) to editing my PC’s bios (??!!)—hasn’t solved. And so for one whole month, a game that I own and have never cheated at in my life, remains unplayable. I’ve never even made it to the main menu.

Well, gosh golly gee, that sure seems like a problem. And Plunkett isn’t your average FIFA customer. He’s a professional in the gaming journalism space and has reviewed a metric ton of games in the past. If he can’t get into the game due to this anti-cheat software, what hope does the average gamer have?

He goes on to note that FIFA isn’t the only game with this problem. EA also published Battlefield 2042, which Plunkett notes at least lets him boot into the game menu and allows him to play the game for a few minutes before it freezes up entirely. The same anti-cheat software appears to be the issue there as well.

Now, console gamers may chalk this all up to the perils of PC gaming. But that is, frankly, bullshit. This isn’t a hardware problem. It’s a publisher and software problem.

To be clear, I’m not posting this as some kind of isolated, woe-is-me personal account. FIFA 23’s problems are very widespread, to the point it affected other outlet’s reviews, and in this line of work, across all the games and platforms we make use of, we run into hiccups and errors all the time that go unremarked because, well, that’s just life.

Here, though, I think the cause of the issues being an external thing just makes it so much more annoying. And EA are far from the only ones affecting users with heavy-handed measures. Look at Activision, with a frankly ridiculous mobile phone requirement for its latest games that was walked back on Overwatch, but which remains in place for Modern Warfare 2’s impending launch. It means that huge numbers of people, legitimate customers who wanted to buy the game and play it fairly, will be prevented from doing so because of their…phone plans. Then there’s Bungie, who saw innocent players accidentally banned—an extreme punishment!—earlier this month when their own anti-cheat went awry, while some Apex Legends players were booted for the same reason in August.

Everyone understands why publishers want to use anti-cheat software. Cheating in the online versions of these games takes away from the fun and experience from those who aren’t cheating goons. But when the cure is worse than the disease, which obviously is the case when the anti-cheat software simply breaks the game for paying customers, then it should be obvious that this strategy isn’t working.

Put another way, there’s certainly cheating going on in these games, but it seems like the anti-cheat software is the one cheating customers out of the games they bought.

Filed Under: anti-cheat software, cheating, customer experience, drm, easy anti-cheat, video games

Ohio Supreme Court Tells Cops They Can’t Hide All Their Use Of Force Reports Under Investigatory Records Exemption

Legal Issues

from the clearing-away-some-cop-bullshit dept

Open records laws were passed because governments simply aren’t interested in voluntarily sharing their documents with the people that foot the bill for both the people and the paper. But governments have to pass these laws, in essence forcing transparency upon themselves. Since most governments seem to be more interested in opacity, massive holes in public records laws are crafted to limit the amount of sharing governments are forced to do.

That’s where the courts come into play. When the government plays it close to the vest, it far too often takes litigation to loosen its grip on documents it doesn’t feel like sharing. Not everyone can afford to sue, so the government often gets away with it. Those who do have the funds and the legal representation to sue make things better for everyone else by getting laws interpreted accurately and exemptions narrowed. This is one of those cases. (h/t Volokh Conspiracy)

The Cleveland Scene and one of its journalists sued the city of Cleveland over the Cleveland PD’s refusal to hand over use-of-force reports in response to the journalist’s open records request. Journalist Lauren Standifer requested all use-of-force records generated between January 1, 2019 and the date she sent the request, September 9, 2020.

The PD’s first response was a two-line spreadsheet containing nothing but the total number of use-of-force reports generated in 2019 and 2020. Standifer went back to the city and explained this was not what she had asked for, nor was it a sufficient response. The city responded 20 days later, now claiming her request was “both vague and overly broad.” Standifer reduced the time frame by about six months and re-sent her request. This one was denied a month later by the city, which incredibly claimed that all the records sought were exempt from disclosure because they were “confidential law enforcement investigatory records.” A month later the city simply informed Standifer her request was officially considered to be closed. Standifer sued.

After a little action in the state appeals court, the PD handed over a few documents but withheld a majority of what Standifer had requested. After some back and forth, the appeals court decided the city had the right to deny her the rest of these records under the stated exemption. It did this by making a very curious (and very broad) determination about the nature of the withheld documents — a determination that basically turned all cops involved in use-of-force incidents into suspected criminals. This is from the state Supreme Court’s decision [PDF]:

It held that the withheld UOF reports were exempt from disclosure as CLEIR [confidential law enforcement investigative record] because they relate to law-enforcement matters and because their disclosure “would create a high probability of” revealing the identities of uncharged suspects—i.e., the officers who used the force described in the reports.

Whoa, says the Supreme Court. Also, WTF. Claiming all use-of-force deployments immediately convert cops into criminal suspects is a hell of way to summarize what these reports are. [Emphasis in the original.]

We disagree with the court of appeals’ application of the uncharged suspect provision of R.C. 149.43(A (2). For one thing, the characterization of an officer who used force as a “suspect” is dubious, given that the UOF report is submitted prior to any determination that a use of force merits an administrative or criminal inquiry. Indeed, the use of force by a police officer in the course of the officer’s duties may not be wrongful, and, in such a case, the UOF report may not necessarily lead to any further criminal investigation. The court of appeals’ rationale, however, necessarily assumes that all officers who use force are per se criminal suspects.

The court says it’s certainly true some of the sought records pertain to pending criminal investigations or charges against officers, but it cannot possibly be true of all of them and the lower court should definitely not have converted a limited exemption into a blanket exemption to be exploited by the city and its police department. [Emphasis in the original.]

So in some cases, a UOF report could be exempt from disclosure to protect the identity of an officer who used force as an uncharged suspect. But it does not follow that UOF reports should be categorically treated as CLEIR. We decline to adopt the court of appeals’ rationale that an officer who used force is an uncharged suspect in every case in which a UOF report describing that force is prepared.

Since it has reached this determination on the city’s blanket exemption, it doesn’t need to bother with the journalist’s suggestion that the blanket exemption runs afoul of the city’s consent decree agreement with the US Department of Justice. Relevant, but not needed to reach its conclusions that the city misused the exemption. Also, always nice to be reminded the Cleveland PD was terrible enough for enough years in a row to attract the attention of the federal government.

The city will have to hand over far more documents than it wanted to. Some of those it wants to withhold may survive judicial scrutiny, but every cop shop in the state is now on notice it can’t hide its use-of-force records under an exemption that plain English makes clear shouldn’t apply to most of these records.

Filed Under: investigatory records, ohio, transparency, use of force

Justice Thomas Still Likes Prince On Thursdays, And What That Means For The Future Of Fair Use

Copyright

from the orange-you-glad-he-might-like-syracuse-too dept

I’ll start this post with a bit of whimsy before alarming you with the sense of doom portended by the stakes involved with last week’s oral argument at the US Supreme Court in Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith.

In this case the Warhol Foundation is trying to get SCOTUS to overturn a terrible decision at the Second Circuit that found Warhol’s Prince prints to not be a fair use of a photograph earlier taken by Lynn Goldsmith. This case is not just a big deal for the Warhol Foundation, which manages Warhol’s art portfolio, but for anyone else who may ever wish to make a fair use of any copyrighted work that ever came before. Which not only includes other modern artists – the Warhols of tomorrow, his foundation’s lawyer reminded us – or others who would seek to remix obvious visual references in their new works, but basically anyone else ever tempted to create new expressive works (including filmmakers, authors, writers, musicians, and even photographers themselves). Because if the Second Circuit’s new interpretation of how the fair use provision of the copyright statute is allowed to stand, it will fundamentally shrink the vocabulary available to new creators who have new ideas to express.

But I digress into substance. Back to the whimsy: at the hearing, Justice Thomas, who, before the pandemic, almost never asked questions of the lawyers arguing before the Supreme Court, posed an interesting hypo to the lawyer for the Warhol Foundation. He started it out by musing, “Let’s say I was a big Prince fan, which I was in the 1980s…” As his voice trailed off to form his next sentence, Justice Kagan piped up to ask, “But no longer?” At which point the entire court, and the bench, including Justice Thomas, succumbed to waves of laughter, and, for a brief moment, we could all forget how much law and liberty rests, already quite bruised, in the hands of these extremely flawed humans assembled before us.

“Only on Thursdays,” Thomas quipped back, before returning to his hypo. The hypo continued by asking what if he were also a Syracuse fan and took an orange version of the Warhol Prince print, added the line to it, “Go Orange” and waved it around at basketball games. Could he be sued by Warhol for that?

Which brings us back to the heart of this case. The question before the Supreme Court was what the rule should be for when fair use should be found. There was no debate of course about whether there should be fair use; it’s a baked-in part of the copyright statute sitting at 17 U.S.C. Section 107. And, as the Supreme Court has previously noted, it needs to be in there to prevent a conflict between copyright law and the First Amendment, to help ensure the former does not do violence to subsequent expression. What the Warhol side argued, correctly, is that the Second Circuit’s decision rejecting Warhol’s fair use defense, obviated it as a usable defense for subsequent expression, and so it petitioned the Supreme Court to correct that error.

The issue arose because, although the statute articulates four factors courts should consider to determine whether a use of a previous work is fair, they aren’t necessarily exhaustive, nor, as this case illustrates, are they entirely clear. This case is about clarifying how these factors should be applied, or, more specifically, this case is about whether, in finding the Warhol Prince prints infringing, the Second Circuit applied the first factor wrong, and if the fourth factor had something to do with it. (And, if so, how the court should have done better.) The fourth factor, working backwards, is the effect on the market for the original work, and Justice Thomas’s hypo touched on it. The Warhol Foundation initially said that his posters should clearly be fair use, noting that Thomas making them would not implicate the fourth factor. Oh no, said Thomas. “I intend to market these things to all my Syracuse buddies!”

Which returns the analysis to the first factor, which looks at the purpose and character of the new work, with the implicit question of whether it’s the same as the original’s. And that’s basically where nearly two hours of oral argument lingered, as everyone argued about what the word “purpose” in the statute even meant.

The Warhol argument largely boiled down to courts needing to ask whether the new work conveyed new meaning not conveyed by the original. But it also made the wider point that when the subsequent work does convey new meaning that the original did not (and in this case there isn’t really a dispute that the Warhol work captured something else to describe who Prince was as a person that the original Goldsmith work had not) then, fundamentally, it could not be seen to share the same purpose as the original, because that expressive purpose was different. As the argument went on the justices wrestled with who should get to decide if there was new meaning, and what constituted adequate proof of it. But the Warhol Foundation complained that the Second Circuit basically had not bothered to consider whether there was any new meaning at all, and at minimum SCOTUS should direct the Second Circuit to redo its analysis with that question in mind.

Goldsmith, on the other hand, and supported by the government, argued that the “purpose” of the Warhol picture was the same as her picture, which was simply to be a picture of Prince that could illustrate an article in a magazine. And if a magazine could pick the Warhol picture over the original Goldsmith one, then that would indicate fourth factor harm, since the market for the original would now be reduced as it competed commercially with the subsequent work.

But if we are going to be able to have new works that express new ideas that the original works did not, then the Warhol argument needs to prevail. And, even given what Goldsmith argued, it should prevail. Because to the extent that both are pictures competing to be used in a magazine, they aren’t competing with each other as literal portrayals of Prince. In fact, to the extent they are, then it is questionable how strong the copyright claim could even be in the original picture, because the essential fact of what Prince looks like is not subject to copyright; rather, it is the originality that Goldsmith included in the capture of his likeness that said something about him that earned the copyright. And it is Warhol’s changing of those creative elements to say something else about him that avoided the copyright to be a fair use.

Because these two pictures say something different about Prince, the one the magazine editor will choose will be the one that says something about Prince that best complements what the article says about him. As such, the first factor should favor finding the second picture fair use, because its purpose is to say something different about Prince than the original did, and so should the fourth factor also favor a finding of fair use, because the latter will not impinge on the market for the pictures saying what the original did. It will instead create its own market for its own original expression conveyed.

Nevertheless, Goldsmith, and the government, instead argued that fair use should be more limited, and that subsequent uses should only be fair if it was truly necessary to have used the original to make their new expression. But necessity is not a requirement found in the statute. Nor could it be there if fair use is going to serve its purpose of advancing future expression.

To support their argument Goldsmith (and the government) took issue with the fact that one of the exclusive rights of a copyright holder, at 17 U.S.C. Section 106(b), is the ability to license derivative works. Copyright holders complain that too much fair use makes that derivative right too limited to be valuable, but what happened at the Second Circuit with this case, and in the Ninth Circuit with the ComicMix case, is that the right to control derivative works essentially snuffed out the ability to ever make fair uses, because it wouldn’t matter how much you transformed the original since the transformation was essentially always going to be a derivative. However, as the Warhol Foundation argued in response to questions from the justices, the text of the statute prioritizes the ability to make transformative fair uses over the derivative right in order to make sure that the former ability can functionally exist. (See the preamble of Section 106: ” Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following…”)

Fair use is already plenty messy; as Lawrence Lessig observed, fair use is the right to hire a lawyer, as opposed to the obvious and durable shield for subsequent expression even the Supreme Court itself has previously recognized it should be. Both Goldsmith and the government also drove home the point that fair use is merely an “affirmative defense” that someone charged with infringement would still have to put before the court to convince it that their use was instead a non-infringing fair use. But that reality cuts against their read of the copyright statute. For fair use to promote subsequent expression it needs to afford creators fairly expansive and reliable protection in order to sufficiently deter infringement suits against it. If it were too narrow or too conditional, such that anyone creating new expression would have to plausibly fear being forced to spend the money to defend their new expression, then they simply won’t create it because it won’t be worth the legal risk. And that’s what’s at stake here: whether fair use can be applied broadly and reliably to encourage new ideas, or whether it is a more narrow needle that fewer subsequent creators will be able to be confident they can thread, which will inevitably chill their expression.

But any law that deters new expression would offend the First Amendment, with its admonition to Congress not to impinge on free expression. And copyright law is no exception, especially because if copyright law is found to operate in a way that chills expression it would also run counter to the Progress Clause of Constitution, which enables Congress to pass copyright legislation only for the specific purpose of promoting more expression. As the Copia Institute argued in its amicus brief, if the upshot to copyright law, and the practical interpretation of it that the courts instruct, is that new expression is suppressed by copyright, then copyright law would have a constitutional problem on both fronts. So that simply can’t be how courts, including the Supreme Court, should find the statute to work.

And now we wait to see if the justices agree.

Filed Under: andy warhol, art, clarence thomas, copyright, fair use, lynn goldsmith, photography, prince, transformative work
Companies: andy warhol foundation

Donald Trump Tells The Supreme Court That Social Media Is A Common Carrier; Never Mentions His Own Social Media Site

Legal Issues

from the did-he-forget-what-he-owns? dept

Last month, Florida officially asked the Supreme Court to review the detailed 11th Circuit ruling which mostly upheld the district court ruling saying that Florida’s social media content moderation law was unconstitutional under the 1st Amendment. Earlier this week, NetChoice and CCIA argued that the 11th Circuit was (mostly) correct in trashing the law, but asking the Supreme Court to hear the case anyway to establish that these kinds of laws are clearly unconstitutional.

Although the Eleventh Circuit correctly condemned S.B. 7072’s core provisions, respondents nonetheless agree with Florida that this Court should grant review. The issues at stake are profoundly important, as this Court already recognized in vacating a stay of a preliminary injunction with respect to a similar Texas law. And the Fifth Circuit recently upheld that Texas law (over a vigorous dissent), thus creating a square and acknowledged circuit split. Other states, moreover, are waiting in the wings, ready to enact comparable laws that would fundamentally reshape social media websites by fiat if this Court does not step in now. The best way to put an end to this grave threat to First Amendment values is to grant both this petition and respondents’ crosspetition to consider the constitutionality of S.B. 7072 in its entirety and to bring a swift nationwide resolution to this debate.

Over the last few days, there have been a small flurry of filings from amici, and there will be more coming as well. Not all of the amicus filings are all that interesting, though a few are eye-opening. A bunch of Republican-led states are (unsurprisingly) eagerly arguing that the Supreme Court needs to give them the power to force any website to host Nazi and terrorist speech in the name of “the free exchange of ideas” which apparently no longer recognizes the private property owner’s right not to host messages they disagree with. That this position is exactly opposite of the one many of these same officials have taken when it comes to putting messages on cakes apparently does not much matter.

Speaking of totally hypocritical arguments, it caught my eye that one of the amicus briefs comes from Donald Trump himself. Now, given that he’s the owner of his very own social media website, Truth Social, which regularly engages in totally arbitrary viewpoint discrimination, I wondered if perhaps he might actually argue that websites need to have the freedom to moderate as they see fit.

Except… that’s not at all what he does. Perhaps incredibly, the amicus brief does not even mention that Trump owns his own social media platform. The statement of interest only talks about how he currently has lawsuits against Twitter, Meta, and YouTube for banning him. Those lawsuits aren’t going too well, and Trump seems to think that a law like Florida’s might fix that. That he owns his own competing platform apparently doesn’t even merit a single mention.

Amicus Donald J. Trump, 45th President of the United States, is the lead plaintiff in class action lawsuits filed against Twitter, Inc., Meta Platforms, Inc., and YouTube, LLC. Among the causes of action alleged in these cases are violations of the censorshipdisclosure requirements of Fla. Stat. § 501.2041(2)(a) (“Section (2)(a)” or “(2)(a)”) and the consistent-application requirements of Fla. Stat. § 501.2041(2)(b) (“Section (2)(b)” or “(2)(b)”). Sections (2)(a) and (2)(b) were enacted by the Florida Legislature as part of Senate Bill 7072 (“S.B. 7072”). The decision of the Eleventh Circuit in NetChoice, LLC v. AG, Florida, 34 F.4th 1196 (11th Cir. 2022) (“NetChoice”) directly affects both Sections (2)(a) and (2)(b). NetChoice reviewed a district court’s order enjoining governmental enforcement of S.B. 7072. The Eleventh Circuit vacated the district court’s injunction as to Section (2)(a)’s disclosure requirements but affirmed the injunction as to Section (2)(b)’s consistency requirement. Amicus Trump has a direct interest in upholding these statutes and submits this brief to apprise the Court that Sections (2)(a) and (2)(b) are supported by long-standing common-law principles prohibiting unfair discrimination by common carriers.

The crux of Trump’s argument: these sites are all common carriers and cannot discriminate against him for inciting a violent insurrection attempt. There’s so much in this filing that seems likely to come back to bite Trump and Truth Social in cases that might eventually get filed against himself. For example, he insists that social media sites are all “dumb pipes.” Someone might want to tell Devin Nunes that according to his boss, he’s not supposed to keep banning people who make fun of Donald Trump.

The conflict between NetChoice and Paxton hinges on their different approaches to the primary function of social media platforms. In NetChoice, the Eleventh Circuit erroneously concluded that “social-media platforms aren’t ‘dumb pipes’: They’re not just servers and hard drives storing information or hosting blogs that anyone can access . . . when a user visits Facebook or Twitter, for instance, she sees a curated and edited compilation of content.” NetChoice, 34 F.4th at 1204. Conversely, Paxton correctly recognized that Platforms are in many ways just that, “dumb pipes,” because they “permit any user who agrees to their boilerplate terms of service to communicate on any topic, at any time, and for any reason.” Paxton, 49 F.4th at 461.

Then there’s a long and confused section regarding Section 230 arguing that it is a “special privilege” given by the federal government. The brief argues that the immunity given by 230 is unique in that “newspapers and television stations get no such protection.” Hilariously, though, to prove this, Trump uses two failed defamation lawsuits against news organizations:

By enacting Section 230, Congress wanted “to promote the continued development of the Internet.” 47 U.S.C. § 230(b)(1). This immunity is unique to the publishing industry; newspapers and television stations get no such protection and are plagued by costly and burdensome lawsuits. See, e.g., Palin v. N.Y. Times Co., 2022 WL 599271 (S.D.N.Y. 2022) (defamation lawsuit by Sarah Palin against the New York Times); Sandmann v. WP Company, LLC, 401 F. Supp. 3d 781 (E.D. Ky. 2019) (defamation lawsuit brought by Covington Catholic High School student Nicholas Sandmann against the Washington Post).

Those seem like… very odd choices as examples. After all, Palin’s lawsuit against the NY Times failed, as did Sandmann’s lawsuits against a variety of media orgs, though it is true that before the judge tossed out the nearly identical lawsuits against the NY Times, CBS, ABC, Gannett, and Rolling Stone, the Washington Post did settle. But these are actually good examples of why Section 230 is really just about making sure that you have a credible lawsuit against the correct party, and therefore the only real benefit to them is getting rid of frivolous lawsuits faster. That’s hardly a “special privilege.” Also, this argument by Trump and the examples he chooses fail to recognize that the difference between the Palin and Sandmann cases and Section 230 cases is about who is doing the speaking. In the cases he references, the speaking was done by people employed by the media companies. The whole point of 230 is that we don’t hold third party speakers liable for what they post on… sites like Truth Social.

From there, Trump’s brief goes on a long rambling rant about common carriers — an issue that really isn’t directly relevant, given that neither the 5th or 11th Circuits agreed on common carrier language (in the 5th Circuit, Judge Andy Oldham did argue in favor of it, but that section was signed only by himself; he couldn’t even get a second judge on the panel to agree with him about common carriers).

Still, Trump leans hard on the idea that social media is obviously a common carrier. The argument is somewhat muddled (perhaps unsurprisingly). It appears to argue (1) that Section 230 is a special privilege, and (2) that special privilege makes it a common carrier, and, therefore, (3) the state can require it to act in certain ways in terms of barring it from blocking certain speech. It leans heavily on weird precedents from centuries ago that definitely do not apply:

In the late 1800s, courts held that special privileges such as the grant of eminent domain powers and gifts of public land converted railroads from purely private concerns to common carriers. These special privileges were first bestowed in the early 1860s, and by easing access to land they played an essential role in the completion of the transcontinental railroad in 1869. By comparison to one-time gifts and eminent domain powers, the immunities of Section 230 are far more valuable. While it would have taken time, the private sector could have provided the funds needed for the construction of the railroads; contrariwise, only Congress could bestow immunity for defamation and other torts. Furthermore, rather than a one-time gift, Section 230 is, in effect, an annuity

Except… this is confused and wrong. Section 230 does not grant them “immunity for defamation and other torts.” It simply says that they cannot be held liable for the defamation (or other torts) of their users. That’s kind of an important distinction that seems to fly way over the heads of Trump’s lawyers.

Hilariously, his lawyers (perhaps recognizing how absurd it is to make social media websites “common carriers”) insist that even if they’re common law common carriers, that does not make them subject to all of the “regulatory burdens of the Telecommunications Act.” Basically “we think we can declare things common carriers, but we still don’t believe in net neutrality.”

From there, Trump’s lawyers just make up a bunch of nonsense falsely claiming that Section 230 only allows for moderation based on “good faith.” This is wrong, as we’ve explained. Yes, part of Section 230 notes good faith efforts to restrict access to material, but that’s only in (c)(2) of Section 230 and not (c)(1) which is what is most commonly used in court to defend moderation decisions. On top of that, multiple courts have made it clear that sites have a 1st Amendment right of editorial discretion to moderate how they see fit, unrelated to Section 230.

These are all things that Trump — who again I will remind you, owns his own social media website which very much benefits from the procedural benefits of Section 230 — should be supporting for his own good. But… instead, we get this nonsense:

Thus, Congress has limited a Platform’s immunity to “good faith” efforts, and courts have applied this “good faith” standard to support claims alleging anti-competitive behavior…. Moreover, the list of factors that a Platform is free to consider in censoring content is limited by the statutory language. Inclusion of the catch-all category “otherwise objectionable” does not mean it can censor content based on anything it claims to consider “objectionable.” Construing the term broadly enough “to include any or all information or content,” would render the statutory list meaningless and superfluous

That’s hilarious, given how randomly and arbitrarily Truth Social bans people.

Believe it or not, it gets funnier:

Nor does Section 230 protect discrimination based on any other basis unrelated to content—such as point of view, political influence, skin color, marital status, or friendship with the Platforms’ operators

Remember, Truth Social originally had terms of service that flat out said that annoying Truth Social employees would get you banned? While those terms have since been updated, the company does have a habit of banning people who mock Donald Trump.

Perhaps even more hilariously, Trump then argues that even if a website is a common carrier, it still gets to set whatever rules it wants, and can kick people off for violating them. I’m not joking:

NetChoice’s error is illustrated through a recent example involving Delta Air Lines’ carriage policy for big-game trophies. Conservation Force v. Delta Air Lines, Inc., 190 F. Supp. 3d 606 (N.D. Tex. 2016), aff ’d, 682 Fed. Appx. 310 (5th Cir. 2017) (mem.). A passenger claimed that Delta unfairly discriminated against him by refusing to transport his big-game trophy, but the District Court rejected the argument, noting that common carriers were free to set their carriage policies provided they applied them equally to anyone using the service. Id. at 610 (quoting York Co., 70 U.S. at 112). Applying federal common-law principles, the Conservation Force court properly drew the distinction between common-carrier status (which Delta clearly had, by virtue of its “all comers” policy) and the terms of service by which Delta operated its airline (which had to be fair and uniform). The terms passed muster because Delta applied its trophy policy uniformly to all users.

Basically, with absolutely no self-awareness whatsoever, he’s arguing that even if a site is a common carrier, as long as it sets rules, it can still ban people. Which… um… would bring us right back around to where we were (more elegantly and more usefully) with Section 230 as currently interpreted.

Reading between the lines, Trump seems to be arguing (hilariously) that he was kicked off of social media because websites were biased against him in an “unfair” and “arbitrary” manner. At this point, I will once again remind you that a recent study found that Truth Social’s content moderation (and, again, Truth Social is never mentioned once in this entire brief) was recently found to have the most arbitrary content moderation of any platform.

Anyway, of course, none of this really matters. Justices Thomas and Alito have already made it clear that they buy this argument, and this amicus brief is playing to them. I do really wonder, though, if these statements will ever show up in cases against Truth Social for its moderation.

Filed Under: common carrier, content moderation, donald trump, florida, section 230, social media, supreme court
Companies: netchoice, tmtg, truth social

Daily Deal: PlayStation Plus Essential 12-Month Subscription

Deals

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

Unleash the power of PlayStation and explore hundreds of incredible games with a new choice of membership plan. With PlayStation Plus Essential, you’ll get to enjoy all the core PlayStation Plus benefits: join your friends in online multiplayer, add new games to your collection every month, get incredible deals from PlayStation Store, and more. Relive some of the greatest PS4 games or experience them for the first time with the PlayStation Plus Collection (exclusive to PS5). The selection of games includes a mix of PlayStation exclusives and third-party titles spanning a range of genres including blockbuster action games, first-person shooters, open-world adventures, massive RPGs, fighting games, and more. A 1 year subscription is on sale for $50.

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

Yet Another Renter Sues Hertz After He And His Teen Daughter Were Held At Gunpoint By Cops Following A Bogus Theft Report

Failures

from the so-bad-at-this-and-somehow-still-in-business dept

It seems like every couple of weeks there’s another report of a Hertz customer being treated like a thief because the car rental company can’t be bothered to do even the most minimal of due diligence or follow-up.

At this point, there are more than 100 plaintiffs involved in class action lawsuit claiming Hertz has falsely reported their rented vehicles as stolen or failed to notify law enforcement when they recover a car reported as stolen, allowing new renters to be subjected to the potentially deadly actions of cops who think they’re dealing with a car thief.

According to a former employee, the company does almost nothing to recover allegedly stolen vehicles, preferring to let the public foot the bill by outsourcing the job to local law enforcement. Despite statements otherwise by company officials, Hertz appears to be unwilling to terminate prosecutions linked to bogus car theft reports by company employees.

Adding to the narrative suggesting Hertz is so terrible at basic customer service, it shouldn’t be allowed to stay in business is this horror story, brought to us by Ryan Hogg at Insider.

A man suing Hertz after he was held at gunpoint 30 minutes after renting his vehicle says the incident has left his daughter in therapy and terrified of police.

Nicholas Wright and his then-13-year-old daughter were stopped by armed officers in October last year, 30 minutes after he had rented a car. 

This report raises a lot of questions, none of which are answered by video footage of officers swarming the car with their guns out while under the impression they were dealing with a dangerous car thief.

This wasn’t a case where the renter had possession of the car for days or weeks, perhaps resulting in someone at the Thrifty branch (Thrifty was purchased by Hertz in 2012) forgetting a contract had been extended and mistakenly flagging a vehicle as stolen. This was thirty minutes after the rental.

That short window between rental and guns-out swarming points toward yet another failure in Hertz’s inventory control policies. If the car was still flagged in the Hertz system as stolen, that would need to be cleared before it could be rented. And that may be what happened. But what didn’t happen was anyone from Hertz passing this information along to law enforcement before renting the vehicle to another driver. That is pure negligence, especially considering the potential for injury or death that comes with every traffic stop where the suspected crime is auto theft.

There are more details which make this even more concerning. First, the plaintiff alleges that his initial call to Hertz to clear this up — a call made while he was surrounded by armed officers — was greeted with laughter by the manager at the rental agency.

This, however, is the chilling cherry on Hertz’s shit sundae:

Officers at the scene told Wright “this happens all the time with Hertz,” before he was allowed to go when the manager arrived.

This just sucks. For several reasons. Hertz has enough of a reputation that the cops at the scene have already engaged in supposed auto theft stops of Hertz renters with valid rental agreements in hand. Tragically, it also suggests cops continue to treat Hertz theft reports as valid, despite plenty of evidence to the contrary. The “boy who cried wolf” policy should have kicked in a long time ago, resulting in Hertz having to provide plenty of documentation and physical evidence of theft, rather than simply treating their reports as accurate representations of the situation.

The burden is on Hertz to clear drivers and cars of theft allegations. Cops are never going to call reporting parties when viewing hot sheets or responding to automatic license plate reader hits. When Hertz refuses to notify law enforcement it has recovered its property, it increases the risk of its customers ending up arrested, assaulted, or dead. That’s unacceptable and Hertz’s claims that millions of drivers haven’t been subjected to bogus theft reports doesn’t change a thing. Any rental company is capable of handling this part of the business competently. And, as all evidence shows, every one of Hertz’s competitors is better at this than Hertz is. The only conclusion that can be drawn is that Hertz simply doesn’t care.

Filed Under: car rentals, car theft, police
Companies: hertz, thrifty

Surprise: Big Telecom Ripped Off A Broadband Subsidy Program For Low Income Americans

Broadband

from the you-knew-I-was-a-snake-when-you-picked-me-up dept

Early in the pandemic, the FCC launched the Emergency Broadband Benefit (EBB program), which gives low income Americans a $50 discount off of their broadband bill. Under the program, the government gave money to ISPs, which then doled out discounts to users — if they qualified.

But (and I’m sure this will be a surprise to readers), big ISPs erected cumbersome barriers to actually getting the service, or worse, actively exploited the sign up process to force struggling low-income applicants on to more expensive plans once the initial contract ended. Very on brand.

The EBB was renamed the Affordable Connectivity Program (ACP) as part of the Infrastructure Bill (the payout to the general public was dropped to $30 a month). And, once again, not at all surprisingly, the FCC recently discovered that “dozens” of U.S. broadband providers were ripping the program off to the tune of millions of dollars across Alabama, Ohio, Oklahoma and Texas.

Now the Washington Post has published an even larger investigation into the whole thing, documenting even greater abuse of the program by US telecom companies. The Post notes how companies like T-Mobile’s Assurance Wireless, for example, exploited the program to convince older folks to sign up for services they didn’t even need. Other ISPs attached weird demands to the program:

Telecom giants soon subjected their customers to a patchwork of inconsistent speeds and price points. AT&T, for example, told some subscribers with premium service — ultrafast fiber connections with download speeds up to one gigabit per second — that they could receive the subsidy only if they changed to service that was one-third as fast with possible monthly data caps, according to complaints filed with the FCC.

Congress and the FCC are “investigating” the problems. Keep in mind, the same telecom industry ripping off a program for low Americans has been waging a character assassination campaign against popular FCC nominee Gigi Sohn, gridlocking her confirmation process and keeping the FCC without a voting majority needed to hold telecoms accountable for anything (the whole point).

None of this is to say the program still hasn’t helped a lot of Americans struggling to make ends meet. More than 14 million U.S. households have enrolled in the benefit program, though that’s only a quarter of the estimated 49 million Americans who actually qualify for it. And there are some concerns that while the program was advertised as a “permanent” fix, the money is going to run out in a few years, leaving a lot of these users on broadband tiers they can’t afford.

Of course, if you step back a little bit, you realize that the program basically just gives taxpayer money to telecom giants with a long history of subsidy abuse, hoping some of it winds up with those in need. You’re basically just giving money to the same monopolies that caused high prices in the first place, to temporarily give relief to people the monopolies are ripping off. You can see how issues could arise.

If U.S. policymakers really wanted to fix U.S. broadband, they’d specifically take aim at the regional monopolies at the heart of the problem. They’d take meaningful aim at their very long history of subsidy fraud. They’d fixate relentlessly on holding monopolies accountable and driving competitors of every stripe — including municipal broadband and cooperatives — into their regional fiefdoms to challenge them.

We never really do that because not only are telecom giants like AT&T very politically powerful, they’re effectively grafted to our intelligence gathering and first responder networks, effectively making them a part of the same government that’s supposed to hold them accountable.

Instead what you get is a lot of chatter about how much we care about the “digital divide,” a lot of band-aid programs that don’t solve the real underlying issue (monopolization and the corruption that protects it), and billions thrown at telecom monopolies with a forty year history of subsidy fraud. Really changing this dynamic requires disrupting telecom monopolization (see our recent paper on this very subject), something U.S. policymakers (with the occasional rare exception) just aren’t interested in.

Filed Under: Affordable Connectivity Program, broadband, digital divide, ebb, emergency broadband benefit, fcc, fraud, high speed internet, telecom
Companies: at&t, t-mobile