IBM's Ridiculous Opportunism: Sells Out Section 230 To Sell More Filters

from the go-away dept

This perhaps isn't a huge surprise, but IBM is being disdainful of the wider tech ecosystem, yet again. It has an incredibly long history of this kind of activity -- mostly in the patent space, where it is the world's foremost patent bully. The company gleefully announces each and every year that it gets the most patents of any company in the US. It has done this (no joke) for 26 straight years. Of course, given how many patents it gets, if patents actually were a marker for innovation, you'd think that IBM would still be putting out all sorts of innovative new products all the time. Right? Except, of course, it is not. Instead, it uses the patents to shake down companies who actually do innovate. The most famous of these stories is the one about IBM and Sun in its early days, in which IBM showed up at Sun's offices with threats of patent infringement:

My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems--then a small company--was accused by IBM of patent infringement. Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had.

The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process.

After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.

An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.

This kind of negotiation is a standard part of IBM's business practices these days. Just recently it was shaking down Groupon. And a few years ago, we wrote about the similar shakedown of Twitter, with the threat coming on the eve of Twitter's IPO -- timed perfectly to scare off investors. Left with little choice, Twitter caved, even though the patents were bogus, and paid IBM $36 million.

Back in 2013, when IBM first went after Twitter, I highlighted how it was an example of how older tech companies focus on litigation when they have no innovation left. In the comments, a few people challenged that claim, saying that IBM was innovative. "Just look at Watson," the company's big AI project, they all said. So, about that:

I could go on and on, but I think you get the picture. And of course, in a post-Alice world, where the Supreme Court has made it clear that most software doesn't deserve a patent, IBM is losing its ability to prop up its businesses with the patent shakedown game as well. Indeed, EFF even shamed the company into dropping one of its truly stupid patents.

So what's a giant tech company that hasn't been innovative in years, and can't rely on shaking down actually innovative companies with bogus patents, to do? Well, how about using some other methods of gaming the regulatory system? Last year, IBM made it quite clear that it wanted to fuck up the internet, when it came out in favor of FOSTA (and at the same time, against inserting intermediary liability protections, like Section 230 of the CDA, into trade agreements).

Now, incredibly, just at the time when there are bipartisan attacks on Section 230, IBM has decided to support gutting Section 230 with a truly malicious and ill-informed statement arguing that 230 protections should be "earned" based on an impossible "reasonable" standard.

In the United States, precision regulation means taking a fresh look at Section 230 of the Communications Decency Act (CDA 230). As currently written, CDA 230 grants an expansive liability shield to any provider of an “interactive computer service” for the actions that occur on their platform, regardless of whether the platform turns a blind eye to illegal activity. Courts have found companies that knowingly host illegal content to be exempt from legal liability based on the broad protection that CDA 230 provides. But a measure designed nearly a quarter-century ago to foster an infant internet needs to keep pace with the enormous social, economic, and even political power that the online world today commands.

Instead of holding all online platforms exempt from liability by default, IBM believes that the exemption should be conditioned on companies applying a standard of “reasonable care” and taking actions and preventative measures to curb unlawful uses of their service.

We just recently discussed how this is a completely unworkable standard. First of all, a reasonable care standard would mean widespread censorship, because what internet company wants to risk going to court over all of this? If "conservatives" think they're getting banned too frequently from social media today, just wait until those platforms face real liability for leaving content up too much.

Second, "reasonable care" will have to be proven in court -- meaning that the procedural benefits of Section 230 get tossed out the window (rather than being able to get a case tossed at an early stage on 230 grounds, companies will have to go through the expensive and time-consuming process of "proving" to a court that they've taken "reasonable care").

Of course, IBM doesn't give a shit about the open internet. To them, killing Section 230 opens up all sorts of neat possibilities. First off, IBM doesn't host any significant online services that rely on Section 230 protections, so it doesn't increase its own liability. Second, it handicaps the companies who actually have been innovating in AI technology, like Google and Microsoft. Third -- and this is the key -- you can bet that one way that many companies will try to prove "reasonable care" would be to purchase an expensive filtering technology. Perhaps one based on... Watson? IBM gets to salvage its junk technology and have the government create a market for it. Bonus.

The rest of IBM's post is incredibly disingenuous:

The “reasonable care” standard would provide strong incentives for companies to limit illegal and illicit behavior online, while also being flexible enough to promote continued online innovation and fairly easy adaptation to different online business models.

The companies already have plenty of incentives to "limit illegal and illicit behavior online" -- because when they don't, they get a ton of shit for it in the press and from politicians. Establishing a new bullshit level of liability will only lead to much greater censorship, including of perfectly legal content. This is something IBM doesn't even acknowledge.

In fact, IBM tries to rewrite what happened with FOSTA:

Around the same time, IBM played a key role in promoting passage of U.S. legislation to crackdown on the spread of online content with a truly horrific purpose: trafficking children for sexual exploitation. We saw this legislation, known as SESTA/FOSTA, as an important step in a broader global effort to stop criminals from using digital platforms for clearly illegal behavior.

And what has happened since then? FOSTA has failed in every measure. More women and children have been put at risk thanks to FOSTA. For IBM to be taking a victory lap on that is truly fucked up.

Then IBM pushes out this complete nonsense:

Reasonable care does not mean eliminating entirely the intermediary liability protections of CDA 230, or comparable laws in Europe and elsewhere. Nor are we calling for amending the “Good Samaritan” provision of CDA 230, which limits the liability of companies that take voluntary actions to stop bad actors. We simply believe companies should also be held legally responsible to use reasonable, common-sense care when it comes to moderating online content. This means, for example, quickly identifying and deleting content focused on child pornography, violence on child-oriented sites, or online content promoting acts of mass violence, suicide, or the sale of illegal drugs. A reasonable care standard in CDA 230 would add a measure of legal responsibility to what many platforms are already doing voluntarily.

Note the many, many contradictions in just this paragraph alone. The "Good Samaritan" provision of Section 230 is what encourages companies to take down that content already. Adding legal liability absolutely does remove the very mechanism that the Good Samaritan provision provides. Second, if (as the paragraph notes) the internet platforms are already doing this voluntarily, why do we need to add legal liability to hold them responsible? And that's not even mentioning the fact that the post conflates a bunch of different content -- ignoring how difficult some of it is to recognize (compared to others that are easy to recognize). There is not a single serious internet company that is allowing child pornography on its platform. They all ban it. They all remove it as soon as they're aware of it. They all tap into the giant NCMEC database of hashes. And they do that because they don't face liability.

IBM has long been a black hole for actual innovation. Now it wants to suck down the open internet with it. Don't let it.

Filed Under: cda 230, filters, liability, patents, reasonable care, section 230, watson
Companies: ibm


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  • icon
    Gary (profile), 15 Jul 2019 @ 10:18am

    Blockage

    Patents only help the biggest of businesses block competition. They clearly do not help people, or innovation. Especially in computers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jul 2019 @ 10:43am

    There once was a time when virtually every groundbreaking innovation in computing (and before that, in mechanical tabulating machines) came out of the bowels of IBM. Maybe if patent terms had been longer, like 100 years or so (why should copyrights have all the fun to themselves?) and companies today were still having to pay royalties to IBM for things like disk drives and RAM memory and such, then maybe, just maybe, IBM would have no need to blitzkrieg the patent office with strategically placed roadblocks to actual innovation coming from the companies that create, build, and market new products ... just like IBM once used to do.

    But then, if IBM was not grabbing up all those thought-patents first, then someone else surely would be.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jul 2019 @ 1:39pm

      Re:

      "every groundbreaking innovation in computing .. came out of the bowels of IBM"

      Guess these were not ground breaking.
      boolean adder
      unix
      personal computer
      hand held calculator

      The more I look at the history of computing the more I thinkyou are wrong ... very wrong.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Fiery Tesla Crash, 15 Jul 2019 @ 10:53am

    BIG IS BAD. Break up ALL giants.

    Your main flaw here, as always is inconsistency: rant about one of actually the best run companies EVER, while supporting GOOGLE / Facebook which already act as if above ALL laws of ALL countries, surveil BILLIONS of persons without consent, as and Snowden reminded over the weekend, hand it to gov'ts.

    How about being against ALL corporations, college boy? Wanting ALL kept under control by heavy taxation and regulation?

    Now, I don't believe the first blockquote because doesn't fit human nature. IBM didn't need to send so many, certainly not to just sit there like a dummies. No one makes so clear and direct a threat. Except in bad script-writing. -- What if Sun had shown the least bit of brains and had that on the then new video tape, easily set up in their own conference room, for less than 5 thousand bucks? Besides first hand testimony. -- In those days, even senior people would have been jailed for extortion is what. Didn't. Happen.

    As for rest: of course you're going to defend Google / Facebook. That's a given. You just hit the thesaurus for some adjectives, is all the substance that you have.


    I bet sheer ad hom at me gets more than the TWO comments you drew prior. -- One of which is by astro-turfer "Gary", so really only ONE.

    reply to this | link to this | view in chronology ]

  • icon
    oliver (profile), 15 Jul 2019 @ 11:12am

    FUD!!!! It's the M$ way, and now the HAL way!

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 15 Jul 2019 @ 12:47pm

    Nothing new here..

    How many corps are doing Like this??
    MOST have become Bill collectors, only.. A few repairs on the side, BECAUSE if its not working they dont need to pay(that dont even stop them from billing you)
    A good share of Old stuff should be in the Public domain, but it gets Paid for, and modified(nothing improved) and the Rights continue..NO MAJOR IMPROVEMENTS..

    Even the Tech in Current cars, could have been done in the 60's.. Even Tech from the 1920's is still pertinent.. but if you try to build it and SELL(keyword) it you will be in court trying to PROVE you didnt do anything wrong for 2-5 years..

    The biggest thing to Advance the USA, would be to DROP all the Copyrights before 1975-80... Nothing over 30 years, Should have a CR.. Also..the exterior designs of cars, SHOULD not be CR..(they all look the same anyway)

    We are still debating IF' HP Lovecraft and Poe should be in the public domain..Its STUPID..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jul 2019 @ 12:54pm

    IBM proves patents dont mean much,it does not produce much the public want,s , it s the opposite of apple , apple makes products that the public wants ,it uses its own software in its products to sell music,movies ,books and apps that sell millions .
    As far as i can see it just uses patents to protect it self from legal attacks
    from other companys .
    Any company that wants to weaken section 230 has a very negative
    attitude to the open web or see,s an opportunity to sell software and filters .I do,nt think ibm has innovated since the 80,s ,as in providing products
    or devices that people want to buy.
    Attacking section 230 is a very short sighted cynical act.
    Millions of users use forums and websites that would not exist if they had not section 230 to protect them.

    reply to this | link to this | view in chronology ]

    • identicon
      Laura, 15 Jul 2019 @ 1:48pm

      Re:

      Big difference that you obviously don't know - IBM does enterprise technology, Apple is consumer facing so you don't know what you are talking about.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jul 2019 @ 1:09pm

    ah Capitalism at work

    IBM makes me think of a steamer ship that forgot to keep replenishing the coal stores before a long voyage.

    On the trip eventually they ran out of coal and started pulling up the wooden deck to keep the boiler hot. Eventually it will just be a floating engine because the rest of the ship was consumed just so the boiler would stay hot.

    All because the captain was too greedy to reinvest into what kept the ship moving because it made him more money to pocket those funds.

    The captain was paid on profit of the ship. if he didn't buy so much coal he could make more money for himself. After all, the boat had tons of coal in the hold he didn't need to keep funding stuff when there was excess. And he was a great captain so why shouldn't he make a little extra

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 15 Jul 2019 @ 1:27pm

    AKA "why patents are not a good idea for any civilization"

    When patents become tools, civilization starts declining.

    reply to this | link to this | view in chronology ]


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