Jack Daniel’s, the famous whiskey maker out of Tennessee, is not a complete stranger to silly trademark battles. But it appears that the company may be getting into the trademark bullying game, or at least the trademark lack of comprehending the law game, more and more these days. This post will serve as another example of that, but some throat-clearing is in order, so stick with me here.
Still Game is a popular sitcom in Scotland. Created by two comedians and spanning 62 episodes, the show follows two older gentlemen in Scotland named Jack Jarvis and Victor McDade. Played by the younger comedians, the two old men quip and comment on current events, on pop culture, on matters of sex, and so on. As a result of the success of the show, creators Ford Kierman and Greg Hemphill created their own scotch blend and named it after their two iconic characters, thus birthing Jack and Victor scotch. And when the two sought a trademark registration on the brand, Jack Daniel’s filed an opposition with the UKIPO.
Hemphill and Kiernan had applied to register Jack and Victor as a trademark for whisky and other drinks-related services but Jack Daniel’s lawyers opposed the application. Jack Daniel’s, a Tennessee whiskey, has registered trademarks in the UK for terms including “Jack” and “Gentleman Jack”.
The US company claimed the Still Game whisky could mislead customers into thinking it was endorsed by them and said it would allow Hemphill and Kiernan to benefit from its global reputation.
If you want to be extremely generous to Gentlman Jack and its lawyers, you could allow for the fact that its lawyers may not be familiar with wildly popular sitcoms airing in Scotland. In other words, the company may not realize just how much fame the show and characters have, which would directly negate the potential for public confusion. And if you don’t bother to review the global realm of whiskys/whiskeys, then you may not realize that the two branded bottles below, while having some similarities, are also similar to a ton of other whiskys out there.
Fortunately, the UKIPO did do its homework and knows just how popular this show was in Scotland. As a result, it ruled against the opposition and is allowing the trademark to proceed to registration.
The UKIPO said the differences between the two brands were “too great” for there to be any confusion and found there was no evidence Hemphill and Kiernan were attempting to take advantage of Jack Daniel’s reputation.
“As to free-riding, the evidence does not establish that there was any subjective intention to take unfair advantage.”
The court also ruled that Jack Daniel’s has to pay Jack and Victor nearly $4,000 in court costs. Not that such an amount is a massive hit to a company like Jack Daniel’s, but it’s at least nice to see a court exact some cost to trademark bullies instead of letting them off mostly free.
Now if you’ll excuse me, I have a tumbler to grab out of my bar hutch.
For two decades, frustrated towns and cities all over the country have responded to telecom monopolies by building their own fiber broadband networks. Data routinely shows that not only do these networks provide faster, better, and cheaper service, the networks are generally more accountable to the public — because they’re directly owned and staffed by locals with a vested interest in the community.
And despite industry lobbyist efforts to paint these networks as some kind of socialist boondoggle hellscape, locally owned community ISPs continue to be extremely popular. Last week, PC Magazine ranked all broadband ISPs, noting that the most popular ISP in the country is Nextlight, owned by the town of Longmont, Colorado:
The town of Longmont, Colorado, took broadband into its own hands and launched NextLight. The community made the right decision. NextLight is not only the overall top ISP this year, but it also earns stellar scores unlike any we’ve seen before in any category for Readers’ Choice.
Funny how that works. For decades, telecom giants and the politicians, think tankers, lobbyists, academics, and consultants paid to love them insisted that such networks were a dangerous socialist hellscape, doomed to failure. In reality, they’re a popular, grass roots, organic local response to decades of shitty broadband foisted upon them by monopolies and the corrupt politicians that protect them.
When you look at the overall ratings of Longmont compared to big ISPs like Comcast (Xfinity) or Charter (Spectrum), it’s not even a fair fight:
Longmont, you may or may not recall, faced no limit of sleazy industry smear campaigns designed to try and scare locals away from the idea of locally owned broadband. Big ISPs like Comcast and AT&T even managed to buy a state law attempting to effectively ban such networks. It didn’t work: decades of consumer anger recently resulted in the state repealing the 2005 law completely.
Federal government has routinely proven too corrupt to meaningfully challenge concentrated telecom monopoly power. Not just because these companies are politically powerful campaign contributors, but because they’re effectively now part of the federal government, whether we’re talking about their trusted role in domestic surveillance, or their integration into first responder systems.
So after decades of annoyance at high prices, slow speeds, spotty availability, and statistically some of the worst customer service of any business sector in America, communities decided to build their own, better networks. At any point in this trend entrenched giants could have responded by offering cheaper, better service, but it was much cheaper to buy politicians and state laws or file lawsuits.
As our recent Copia study on how to fix U.S. broadband shows, these locally owned networks take many forms, whether it’s the local city-owned utility, a direct municipal network, a cooperative, or a public-private partnership. Such networks (especially when open access) provide a direct, hugely beneficial alternative to forty years of failed, monopoly coddling federal policies. And they’re popular as hell.
It’s always disappointing when an internet company that should know better decides to throw the open internet it relies on under the bus.
You would think that a site like OnlyFans would know better. You expect this sorta thing from Meta or Google or Netflix, which have reached a size where they’re more willing to compromise with open internet principles in order to help build themselves a politically convenient compliance nightmare for smaller competitors.
But you would have thought OnlyFans was still new enough that it wouldn’t join those pulling up the ladder behind them. After all, it’s run into its own struggles with what happens when moralizing politicians try to stifle the open internet.
Apparently, though, the company doesn’t care much to support the open internet.
The Economist recently had a big story about attempts to regulate speech online. The piece is not a bad summary of how politicians everywhere are trying to become the speech police. There’s some talk of Section 230, the various dumb state laws about content moderation, the DSA in the EU, attempts in Turkey and Brazil to clamp down on online speech, and much more.
However, what caught my eye was the discussion about the UK’s Online Safety Bill, a very problematic bill that we’ve spoken about plenty of times. And, the Economist actually got a quote from OnlyFans seeming to endorse the age verification aspects of the bill:
The most controversial part of Britain’s bill, a requirement that platforms identify content that is “legal but harmful” (eg, material that encourages eating disorders) has been dropped where adults are concerned. But there remains a duty to limit its availability to children, which in turn implies the need for widespread age checks. Tech firms say they can guess users’ ages from things like their search history and mouse movements, but that a strict duty to verify users’ age would threaten anonymity.
Some suspect that their real objection is the price. “I don’t think ‘It costs money and is hard’ is an excuse,” says Keily Blair, chief operations officer of OnlyFans, a porn-centric platform which checks the age of its users and doesn’t see why others shouldn’t do the same. Yet some platforms are adamant: the Wikimedia Foundation, which runs Wikipedia, says it has no intention of verifying users’ age.
Look, if you want to do age verification, that’s on you, but making it mandatory is a nightmare for the open internet. First, as noted, it destroys anonymity. Second, it puts more user data at risk, for no good reason (to verify ages you have to collect sensitive data). Third, even if it is about the expense, tons of websites can’t afford that nonsense, which will serve no purpose and won’t actually keep anyone safe.
The fact that OnlyFans voluntarily decides to verify ages has a lot more to do with OnlyFans’ business model, content, and target audience. But it’s no excuse for saying that everyone else should have to deal with the same compliance nightmare despite very different products and audiences.
Apparently, this willingness to throw the open internet under the bus isn’t new. That quote seemed so out of place that I went looking, and apparently the company came out fully in favor of the Online Safety Bill last fall.
Blair hopes the Online Safety Bill, which imposes a “duty of care” on social media platforms, will bring her rivals up to the same standard the company believes it upholds.
“We want everyone to be as safe as we are. Anything that pushes people in that direction is a good thing for society,” she says. But now the bill has been pushed back, companies may be slower to act. “I’m disappointed because some people need a stick to make changes. Unfortunately, the law often is that stick.”
There’s an astounding lack of understanding about basic policy issues here, and ones that seem likely to come back to bite OnlyFans. What a “duty of care” actually means is the requirement to litigate any time anything bad happens to anyone on your site. Because each time something bad happens someone will sue, and sites will have to spend a ridiculous about of time, money, and resources to explain why they were appropriate in their “care.” Even if a site thinks it will win, it still creates a massive mess of nonsense and wasted time and money.
Later in that same article, Blair also made it clear that she has no clue how freedom of expression actually works, which is quite stunning given the content that OnlyFans regularly hosts on its own site:
What did she make of those accusations that the legislation would suppress freedom of speech? “Freedom of expression and online safety aren’t a binary choice,” she says. “The reality is that freedom of expression has always been curtailed by the law. There’s always been boundaries in place from a legal standpoint to protect around what we think is acceptable in a modern society to say and not. That’s why we have rules around hate speech.
“People often say things and do things on the internet that they would only do behind a keyboard,” she adds. “People feel emboldened to behave in certain ways sometimes. It’s right to have the same protection online as you do walking down the street.”
It’s unclear here if OnlyFans’ execs are just ignorant, foolish, believe that they can withstand the litigation onslaught while others can’t… or some combination of all three. Or maybe they see themselves as a regulatory target and think they’ll get a better deal by playing nice with regulators. But, nonetheless, it’s still disappointing that a site that has benefited so much from the open internet and freedom of expression has decided to support throwing it all away.
Section 230: not just for those irascible tech giants politicians keep grandstanding about. We all may have a love/hate/really hate relationship with various social media services, but Section 230 also protects the little guys. So, while it might be momentarily satisfying to cheer on the latest comeuppance attempt by political opportunists, remember it’s going to be the little guys who get hurt the most.
That’s just one of several lessons that can be learned from this legal victory obtained by OPRAmachine, an online portal for sending Open Public Records Acts (the OPRA in the machine) requests to New Jersey government agencies.
A user of OPRAmachine requested records from the city of North Wildwood. Those records were delivered by the city’s clerk, who failed to redact city employees’ social security numbers from the document before it was sent to the requester and automatically uploaded to OPRAmachine. Once notified of this redaction failure, OPRAmachine took down the documents, redacted them, and once again made them available to the public.
The legal action came after North Wildwood City Clerk W. Scott Jett released the social security numbers and other personal identifiers of police officers in an unredacted OPRA request they fulfilled.
Among those named in the lawsuit was Gavin Rozzi, the creator of OPRAmachine. His website acts as a third-party platform to file public records requests. In turn, the results of the OPRA request are publicly available.
The three police officers sued the city and OPRAmachine under the Identity Theft Protection Act as part of a class action lawsuit.
That’s right. Three cops decided to sue a third party content host because the city failed to properly redact their social security numbers. If any violation of the law actually took place, it was committed by the city of North Wildwood. But cops won’t often bite the hand that (indirectly) feeds them. Instead, they thought they could sue OPRAmachine into paying them for an error made by one of their fellow city employees.
On May 17th, 2023, Superior Court Judge Ralph A. Paolone granted OPRAmachine and Rozzi’s motion for reconsideration, dismissing all remaining counts against the company that operates OPRAmachine and affirming the platform’s immunity under Section 230 of the Communications Decency Act from liability related to third-party content which includes public records uploaded to the website.
Simple enough and certainly the correct decision. But that’s the dry stuff which, while certainly important, isn’t nearly as entertaining as OPRAmachine founder Gavin Rozzi verbally smacking the cops and their litigation team around for engaging in such obviously stupid litigation.
Rozzi also highlighted the spurious nature of the plaintiffs’ claims, saying, “It is intriguing that despite the City of North Wildwood offering free identity theft monitoring to the plaintiffs, they chose not to take advantage of it. Now, they claim they are at risk. These inconsistencies raise doubts about the credibility of their claims and ability to serve as class representatives.”
That’s not even the best part. This is:
“This case should have never been brought as it flew in the face of federal law. The unprofessional behavior exhibited by Barry and Lezama-Simonson throughout this case is deeply disappointing. They cited an overturned district court case in their briefs in a cavalier attempt to mislead the court and repeatedly missed deadlines, displaying a lack of diligence and disregard for legal procedure. It was clear that they were both out of their depths here. This outcome totally disproves the malicious lies about myself and OPRAmachine contained in their complaint.”
A resounding loss, albeit one that required OPRAmachine to convince a judge to take a second look at his own decision. But it all turned out for the best, generating more precedent that will help ensure even smaller sites like OPRAmachine aren’t turned into settlement fodder for disingenuous opportunists like these three officers.
There has been a lot said about Gonzalez v. Google, the first Supreme Court Section 230 case in 22 years. Of course, in those 2+ decades Section 230’s “twenty-six words that created the internet” have generated their fair share of courtroom and political controversy. But even given 230’s lightning-rod status for free speech and the internet, interest in the Gonzalez case was extreme. Experts and interest groups filed a total of 78 different amici in Gonzalez alone1, totaling 236,471 (!!!) words for Google and 470,002 words total. In light of the volume, the Court extended oral arguments to 70 minutes and then still blew through that time limit by an hour and 34 minutes.
With so much to say, one might think there was much to be said, that is until two weeks ago, when the Court dismissed the case in a perfunctory 2.5 page per curiam opinion that was brief enough to fit into a 15 Tweet-thread.
Doesn’t that make you go, “hmmm?
That sure is a lot of words and time for… not a lot of words and time. Indeed, I think FAR more interesting than anything you could read about the legal issues discussed in the thousands of pages of briefing or ignored in the breviloquent final decision, was the delta in word-count between them, which belied a two-year long narrative arc of legal realism2.
Let me take you back to April 2021
The story, such that it is, begins in April of 2021 when Justice Clarence Thomas issued a very odd concurrence on a procedural dismissal of the case which had successfully challenged then-President Trump’s ability to block users on Twitter under the First Amendment. That case (confusingly called Knight v. Biden in the dismissal because of the change in administrations, but originally called Knight v. Trump) had since been rendered moot when Trump lost the election and ceased to be a government official.
With no live issue, the Court had little to do except clear the matter from the docket, which it did: granting cert, vacating the judgment, and remanding for dismissal in three tidy sentences — which made the multi-page Thomas’s concurrence attached to it all the weirder.
The concurrence had the vibe of an unprovoked rant, with Thomas harnessing many of the far-right conservative ideologies around the censorship of Big Tech companies, championing the controversial idea of applying common carriage doctrine to internet platforms, and attacking Section 230. But perhaps most concerning for internet law experts who disagreed, was that Thomas seemed to be essentially putting out a call-for-cases. “It’s an invitation for plaintiff’s lawyers to bring cases challenging Section 230,” Jeff Kosseff, an internet law professor and author of the authoritative book on the controversial law, said at the time. “And I would not be surprised if we would start seeing more states passing laws that attempted to regulate content moderation.”
Skip forward to one year later in April 2022
Kosseff turned out to be prescient on both fronts. Less than a year after Thomas’s writing, in early April 2022, lawyers for the plaintiff in Gonzalez filed for writ in the Supreme Court, challenging the application of platform immunity in Section 230.
But few law and technology experts had the time to take note of the case because Kosseff’s second prediction had also come true: both Florida and Texas had passed laws in 2021 putting in place must-carry-like provisions for social media.
So in the Spring of 2022, just as Gonzalez and its companion case Taamneh v. Twitter wound their way to the Supreme Court, almost no one was looking. Instead, all eyes were on the 11th and 5th Circuit Courts which were issuing dramatically divergent opinions on the Florida and Texas laws under the First Amendment. These cases — Netchoice v. Moody (Florida) and Netchoice v. Paxton (Texas) — were not only raising big constitutional issues, they had generated a circuit split, both of which made the odds of them being granted cert in the Court both high stakes and high probability.
October 2022: Everyone’s hair is on fire with the Netchoice cases and then the Supreme Court sets their feet on fire with Gonzalez and Taamneh
So when the Court announced on October 3, 2022 that it was granting cert in two relatively unknown, and low-profile internet tort cases, internet law experts were caught on their back foot. “When we were surprised by the cert grant, there was a sense that we [the internet law experts] might have just really misunderstood or underestimated the strength of these two cases,” said Mike Godwin, an internet law expert who filed an amicus brief in Gonzalez. But as many dropped everything to get up to speed on Gonzalez and Taamneh, another possibility emerged. It was not that these cases were underestimated in their legal strength or facts, which with the specter of Thomas’s activist concurrence, made the concern far greater. Instead, “as we dug in, we could see that the cases didn’t seem likely to provide the Court an easy way to reinterpret Section 230,” Godwin recounts, “unless the Court was dead-set on reaching that result regardless of what the underlying issues might be.”
It’s worth noting here that internet law lawyers don’t spend a lot of time in the U.S. Supreme Court. As I mentioned above, the last major case heard by the Court was Reno v. ACLU in 1999, which struck down all but Section 230 of the Communications Decency Act and set the stage, for better or worse, for the next two decades. Now, suddenly, in the span of a few weeks, there were two cases granted and two more likely to be granted in the coming months.
“There’s a very turbulent legal landscape ahead,” Daphne Keller, an internet lawyer at Stanford Cyber Policy Center summarized in an interview at the time. “It’s like Dobbs, in that everyone feels the law is up for grabs, that justices will act on their political convictions and would be willing to disregard precedent.”
The issues in the Netchoice cases were huge and complex — First Amendment, dormant commerce clause, and federalism — but now the threats of Gonzalez and Taamneh were direct and imminent. Over the next several weeks lawyers and advocates working on these issues scrambled to weigh in. The result of the five alarm fire translated into a huge flood of amicus briefing — 47 in support of affirmance or Google, 18 in favor of reversal or Gonzalez, and 13 supporting neither party (Full disclosure: I signed onto a brief with other law professors and law and tech experts in favor of Google).
The Farcical February Oral Arguments
By the time oral arguments rolled around in late February of this year, there was a mix of collective exhaustion and massive pessimism. Though I knew many who trekked to DC to wait in a line for 19 hours in the cold to attend oral argument in person, most of us were relegated to listening from the public audio feed provided for the Court. I organized group of experts to listen and weigh in via liveblog at the Rebooting Social Media Institute at Harvard, where I was a fellow — most people were excited for the camaraderie, but more than one declined reasoning that “given the odds we’ll be witnessing firsthand the demise of the internet” they preferred to be alone.
Supreme Court oral arguments are historically not a great predictor of the outcome of a case. Sometimes topics that come up at great length in discussion never even are discussed in the final opinion and the moods of the justices are hard to read and often change. So the group of us that assembled — a mix of lawyers and legal types who had followed closely or filed briefs in the case — gathered that morning with low expectations that we would learn anything new and a sense of gallows humor. If the internet was going to die that day, at least we’d be hanging out in Slack together making memes when it happened.
But as arguments began, it was clear that something very far outside the normal was happening. As the plaintiff, Gonzalez’s attorney went first, and at the close of his opening statement, unsurprisingly given his presumed interest in the case, the first question was from Thomas. But oddly the question from Thomas seemed somewhat hostile to the plaintiff’s arguments, urging him to make a better case: “I think you have to give us a clearer example of what your point is exactly,” the Justice stated, offering a few examples of what results one might get from asking a YouTube algorithm for a recipe of “rice pilaf from Uzbekistan… you don’t want pilaf from some other place, say, Louisiana.”
But whether for nerves, or ineptitude, the plaintiff’s attorney seemed unable to clarify his arguments to satisfy Thomas or really any of the justices, even as they tried to offer him help in doing so. As they went through their questions, it seemed not a single justice could tell why they were hearing this case and what the plaintiff was arguing for… and they were confused in nine different ways:
“Does your position send us down the road such that 230 really can’t mean anything at all?” asked Justice Kagan.
“I — I don’t know where you’re drawing the line. That’s the problem,” said Alito, later adding “I’m afraid I’m completely confused by whatever argument you’re making at the present time.”
“Can we back up a little bit and try to at least help me get my mind around your argument about how we should read the text of the statute?” offered Justice Jackson.
“Can I break down your complaint a moment?” asked Justice Sotomayor, summarizing the plaintiff’s main claim, then in a question that would turn any attorney’s blood cold asking, “I think, as I’m listening to you today, you seem to have abandoned that.”
Over at our little live blog, the funereal mood had turned into an almost jocular one. Slowly a new possibility about what the Court’s decision to hear arguments in Gonzalez and Taamneh emerged: maybe the Court had wanted to take an internet law tort case, but they’d picked badly and they now they knew it.
Resolving these cases in favor of the plaintiffs wouldn’t just radically re-interpret Section 230, it would also dramatically re-write the law on what “aiding and abetting” meant under the law — and that would have ramifications on all of tort law, not just social media. In other words, maybe the Court had been willing to be little activist, but not this activist.
How do you solve a problem like a Mistaken Grant of Cert?
So over on the live blog we started contemplating: maybe this isn’t end times for internet, maybe this is just an accident. What do you do with a Supreme Court case that you f*cked up in hearing? Well, if the Court wanted to resolve their little accident with as little damage as possible it had two best options. The thing a Court can do when it grants something seemingly on error is to “deny as improvidently granted.” As the arguments continued to deteriorate, Supreme Court expert, law professor Steve Vladeck, floated this as a possibility on Twitter.
The other option, as Ben Wittes ofDog Shirt Dailypointed out in our liveblog and in the Lawfare Podcast, was to rule for Twitter in the companion case to Gonzalez, and then use that resolution to avoid having to rule in Gonzalez at all. That, at least, would save the Court face, but to the same general effect.
And that is precisely what happened.
In Taamneh, a unanimous Court wrote a relatively brief 30 page opinion that upheld the dismissal of a case against social media companies. That decision made way for the less than 600 word per curiam in Gonzales, where the Court “declined to address” the issues raised in the over quarter of a million words of amicus briefs written on the case.
And that, bunnies, is how the Supreme Court turns a quarter-million words into 565
With such an unceremonious conclusion, many might see all those words from friends of the Court as wasted. After all, most people consider amicus briefs successful when they appear as cited in a majority opinion, not when they collectively generate a barely 3 page dismissal. But as part of this broader story of the case, it’s the best possible outcome.
“All the amicus work was vindicated,” Keller texted me minutes after the decision was released, “precisely by being made to seem so unnecessary.”
Republished with permission from the Klonickles (which you should subscribe to).
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A few months back, we wrote about California Rep. Buffy Wicks’ blatantly corrupt plan to use the California legislature to simply make Google and Facebook hand cash over to news orgs (the same news orgs she needs endorsements from to keep getting elected).
We’ve gone over the basics many times before: link taxes not only don’t make any sense, but they’re actively harmful to the open web. They’re based on a ridiculously confused understanding of basically everything. In short form: if any website does not want to get traffic from Google or Facebook, they have the power to control that by using robots.txt or redirects. It’s easy.
The problem is that they want the traffic. They want it so bad that they hire “search engine optimization” experts to help them get more traffic.
The problem is that they don’t just want the traffic, they also want to get paid for that traffic.
This is backwards in so many ways. It’s basically saying that they should get paid to have other companies send them traffic.
It also breaks the most fundamental concept of the open web — the link — by saying that the government can force some websites to pay for linking to other websites (and, on top of that, force the paying websites to have to host those links, even if they don’t want to).
Everything about this is filthy and corrupt. It’s literally Rep. Buffy Wicks and others in the California legislature saying “we’re forcing companies we dislike to give money to companies we like.” I mean, if that’s okay, think of how many other industries are going to be cozying up to Wicks and friends asking them to get other industries to simply fork over cash. It’s basically just laundering the corruption by literally forcing one set of companies to bribe others.
And, the reality is that (as we saw elsewhere with these link taxes) the biggest beneficiary will be Rupert Murdoch. It makes you wonder why a Democrat like Buffy Wicks is looking to support Murdoch, but that’s the end result. Since the payments will effectively be based on the size of the news organization, the biggest news organizations will really clean up here.
A recent study by the Chamber of Progress noted that the biggest beneficiaries of the CJPA will be Fox News and the NY Post: two properties owned by Rupert Murdoch. Supporters of the bill have attacked this study by saying that Chamber of Progress is a big tech lobbying org, but even if you think that’s accurate, it seems you should still have to respond to the actual data here:
Of course, another major beneficiary is the hedge funds buying up local newspapers and strip-mining them for cash.
On top of that, there are serious concerns about the 1st Amendment destroying “must carry” effect of the bill. The law says that Google and Facebook “shall not retaliate against an eligible digital journalism provider for asserting its rights under this title by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform” which means that so long as you apply to get included in this payout scheme, Google and Facebook can’t downrank you.
Which means that all of the disinfo peddlers are totally going to participate just to make sure that if they’re downranked for other reasons they can totally play martyr and use this law to force themselves back up in the rankings.
Earlier this week, Wicks and others in the legislature made some amendments to the bill, which they claim answer some of these concerns — mainly trying to address the claims that the billionaire owners of these media properties will just pocket the money. The original bill said that 70% of the funds received had to be invested in “journalism jobs” and the amended version of the bill provides a few more details. It says that media organizations seeking to get cut into this corrupt bribe need to provide details of their “plan” to comply with the requirement to use 70% of the funds on “news journalists and support staff.”
But that doesn’t actually fix any of the underlying issues. It just clarifies what was already in the bill, and makes it much more convoluted and complex. And, even so, it still allows 30% to go to Murdoch, hedge fund dudes, etc.
The bill also makes it clear that small publications need not apply, only the rich wealthy ones. Publications that make less than $100k per year are not eligible, so independent journalists or small one or two person journalism outfits are cut out of the deal. Hell, Techdirt would likely be excluded. Remember, we took ads off our site a few years ago, partly because other laws, including California’s privacy laws meant that it was too big of a liability for us to offer ads. So, it’s not clear that we meet the qualifications of making revenue from our publishing activity (in part because of other California laws). California seems to be very carefully deciding which orgs can get this payout and which ones (like us) cannot. And that also seems like a major 1st Amendment concern. The government picking and choosing which journalism orgs get cut into the corruption seems… problematic?
There should also be pretty serious concerns about how this could bias reporting. The bill makes it clear that the amount media orgs get paid is entirely dependent on how much advertising revenue Google and Facebook make. Would you still expect critical reporting on their advertising programs when doing so directly could impact a large chunk of money going to your employer?
On top of that, there was a change to pretend to deal with the “must carry propaganda nonsense” by adding the following: “This section does not prohibit a covered platform from, and does not impose liability on a covered platform for, enforcing its terms of service against an eligible journalism provider.” But, now you have to litigate that. Because every news org that is downranked or removed will claim it’s retaliation, and then it becomes a fight over who a court believes. That, alone, will make it so that Google and Facebook are less willing to bother enforcing their own rules to stop nonsense peddlers, because it’s now a liability.
Again, it makes you wonder why Buffy Wicks, a Democrat, is trying to help disinformation peddlers, who frequently support Republicans, remain at the top of the results in Google and Facebook.
But, unfortunately, it looks like the amendments — which are effectively Buffy Wicks bribing big media companies with money from big tech companies — are working to convince some journalists. Matt Pearce is an excellent reporter for the LA Times, and one who was, in the past, critical of attempts to do a link tax at the national level, the JCPA, highlighting how it was media orgs “begging Congress for a handout.” He tweeted dozens of times about the problems of the JCPA.
Just a few months ago, he was the lead signatory on a letter to Congress talking about how the JCPA was problematic. But, as soon as the California version was amended to make news orgs document how the money would be spent, Pearce supported it. It comes off as “it’s okay to break the open internet with link taxes, so long as we get our cut.”
It’s not a good look.
Yes, some media orgs have struggled to adapt to the internet, and yes, journalism (especially local journalism) is critical. But this corrupt, anti-internet approach is not the way to do it, and it’s a bad look for journalists to only say it’s okay once their own beak is wet as well.
This entire scheme is problematic. No one should support it just because they’re getting paid.
We’ve noted several times how European ISPs have somehow convinced European Commission that technology giants should repeatedly give them billions of dollars… for no coherent reason.
This “fair share” proposal is dressed up to sound like a sensible adult policy aimed at shoring up broadband access. In reality it’s net neutrality 2.0: telecom giants using their leverage and power politically to try and offload network build and maintenance costs to someone else (namely, you).
As the EU ponders implementing a system that would have the biggest tech companies paying big telecoms directly every month simply for existing, the Biden administration and the NTIA filed their own comments with the European Commission. In them, they argue such a system would drive up costs and violate net neutrality by giving telecoms power and wealth they don’t deserve:
Mandating direct payments to telecom operators in the EU absent assurances on spending could reinforce the dominant market position of the largest operators,” the US submission said. “It could give operators a new bottleneck over customers, raise costs for end users, and alter incentives for CAPs/LTGs [content and application providers and large traffic generators] to make efficient decisions regarding network investment and interconnection. It is difficult to understand how a system of mandatory payments imposed on only a subset of content providers could be enforced without undermining net neutrality.”
Again, this is the same old ploy telecoms have been trying to implement for twenty years of net neutrality infighting. In short, it’s regional telecom monopolies demanding they be paid extra simply because, even though everybody in the chain — from consumers to the biggest tech giants — already pay an arm and a leg for connectivity thanks to limited competition and monopolization.
As noted last week, telecoms have already had success implementing such a model in South Korea, where ISPs now feel emboldened to sue Netflix for compensation simply because certain programs are profitable. It’s effectively double dipping, and you’d have to be positively naïve to (1) believe this is a serious policy proposal, or (2) not believe it will be abused by telecoms with a history of pocketing billions in subsidies in exchange for slow, spotty, half-completed broadband networks.
Again, should this telecom lobbyist gambit succeed in the EU, you’re going to see a renewed push for something similar here in the States (captured regulators like FCC Commissioner Brendan Carr have been busy little bees seeding the idea in the press for several years). It always pretends to be a helpful way to expand broadband access, but it’s little more than a glorified cash grab.
The end result will be a lopsided connectivity system open to abuse by telecom giants, an internet that could be less reliable as companies try to route traffic around the errant surcharges, and higher prices for absolutely everybody in the chain.
