Earlier this month, we noted how Wired and Business Insider were among a half-dozen or so major news organizations that were busted publishing fake journalism by fake journalists using AI to make up completely bogus people, narratives, and stories. The Press Gazette found that at least six outlets were conned by a fraudster going by the name of “Margaux Blanchard.”
A week later and the scandal is much bigger than originally stated.
Business Insider has had to pull upward of 40 stories offline for being fabricated. Washington Post and Daily Beast have found that “Margaux Blanchard” appears to be part of a much larger operation using “AI” to defraud news outlets and mislead the public. Most of the pieces were fake personal essay type writing for experiences that were completely made up, by a rotating crop of different fake authors.
And most of this stuff should have been caught by any competent editor before publication:
“The Beast’s review found several red flags within the since-deleted essays that suggest the writing did not reflect the authors’ lived experiences. This included contradictory information in separate essays by the same author, such as changing the gender and ages of their supposed children, and author-contributed photos that reverse-image searches confirm were pulled from elsewhere online.”
Recall that back in May, Business Insider executives celebrated the fact they had laid off another 21 percent of their workforce as part of a rushed pivot toward automation. But not only does that automation have problems with doing basic things (not plagiarizing, writing basic headlines, and citations), it’s opened up new problems in relation to propaganda and fraud.
Again, early LLM automation has some potential. But the kind of folks who own (or fail upward into positions of management at) major corporate media outlets primarily see AI as a way to lazily cut corners and undermine already underpaid and mistreated labor. As you see at places like Business Insider and Politico, these folks don’t appear to genuinely really care whether AI works or makes their product better. In large part because they’re exceptionally terrible at their jobs.
There’s automation and what it can actually do. And then there’s a deep layer of fatty fraud and representation by hucksters cashing in on the front end of the AI hype cycle. That latter part is expected to have a very ugly collision with reality over the next year or so (it’s something research firms like Gartner call the “trough of disillusionment.”) Others might call it a bubble preparing to pop.
Most extraction class media owners have completely bought into the hype, in part because they really desperately want to believe in a future where they can eliminate huge swaths of their payroll with computers. But they’re not apparently bright enough to actually see the limitations of the tech through the haze of hype, despite no limit of examples of the hazards of rushed adoption of undercooked tech.
It’s no secret that most publishers (though not us!) hate ad blockers. The idea that ad blockers are illegal or “an attack on free speech” get trotted out every so often, and they’re always silly. You should have control over how your own browser on your own computer works. That’s an important freedom. And that means you should be able to install apps that protect you from potentially malicious content. Or from anything at all. It’s your computer. It’s your browser.
But publishers will bend over backwards to argue otherwise. And for years they’ve been doing so in Germany especially, relying on that country’s truly ridiculous copyright laws. Germany’s Axel Springer, one of the largest media orgs in Germany, has been on the warpath against ad blocking going back at least a decade. They and others kept taking ad blockers to court. And losing. Over and over again. But the German legal system never seems to come out with final precedential rulings, so past wins—even those at the Supreme Court—never quite seem final.
Back in 2022, we thought maybe the issue was finally over, with yet another German court saying that ad blocking does not infringe on copyright.
But apparently claiming that ad blocking infringes on copyright in Germany is a kind of legal zombie that never, ever dies. It just comes back again, once again trying to take a big bite out of the basic concepts of the open internet.
Last month, Germany’s Federal Supreme Court (the BGH) decided to partially overturn a lower court’s sensible ruling and reopen this can of worms. The court is now asking whether modifying a website’s Document Object Model (DOM) or Cascading Style Sheets—which is exactly what ad blockers and countless other browser extensions do—constitutes copyright infringement.
Let’s be crystal clear about what this means. If this logic holds, then basically any browser extension that changes how you experience the web could theoretically infringe someone’s copyright. As Mozilla’s Daniel Nazer points out in an excellent blog post breaking down the implications:
Imagine you are watching television and you go to the kitchen for a snack during an ad break. Or you press the fast-forward button to skip some ads while listening to a podcast. Or perhaps you get a newspaper delivered to your house, and you see that it includes a special section made up ofhallucinated AI content, so you drop the inset into the trash before taking the rest of the paper inside. Were these acts of copyright infringement? Of course not. But if you do something like this with a browser extension,a recent decision from the German Federal Supreme Courtsuggests that maybe you did infringe copyright. This misguided logic risks user freedom, privacy, and security.
Think about the absurdity of this for a second. Using your browser’s built-in reader mode? Potentially copyright infringement. Changing the font size because you have vision issues? Maybe infringement too. Installing a dark mode extension because you don’t want to burn your retinas? Better call a lawyer first.
This isn’t just about ad blocking, though that’s obviously the specific target here. As Mozilla notes, there are countless legitimate reasons users might want their browser to modify how a webpage appears:
There are many reasons, in addition to ad blocking, that users might want their browser or a browser extension to alter a webpage. These include changes toimproveaccessibility, toevaluate accessibility, or toprotectprivacy. Indeed, the risks of browsing range from phishing, to malicious code execution, to invasive tracking, to fingerprinting, to more mundane harms like inefficient website elements that waste processing resources. Users should be equipped with browsers and browser extensions that give them both protection and choice in the face of these risks.A browser that inflexibly ran any code served to the user would be an extraordinarily dangerous piece of software.Ad blockers are just one piece of this puzzle, but they are an important way that userscan customize their experienceand lowerrisks to their securityand privacy.
The stakes here are enormous. If German courts decide that users don’t have the right to control how web content displays on their own machines, it would represent a fundamental break from how the web has always worked. It would essentially give publishers veto power over user choice and innovation in browser technology.
And let’s not forget who’s behind this: Axel Springer, the same company that has spent years trying to break the internet through things like the EU’s link tax. This is the same publisher that thinks Google should pay them for the privilege of sending them traffic. Their track record on understanding how the internet works—or should work—is abysmal.
As Mozilla warns, if Germany becomes the second country (after China) to effectively ban ad blockers, it could:
… significantly limit users’ ability to control their online environment and potentially open the door to similar restrictions elsewhere. Such a precedent could embolden legal challenges against other extensions that protect privacy, enhance accessibility, or improve security. Over time, this could deter innovation in these areas, pressure browser vendors to limit extension functionality, and shift the internet away from itsopen, user-driven naturetoward one with reduced flexibility, innovation, and control for users.
The most maddening part? We already know how this plays out. Courts have looked at this question repeatedly and consistently concluded that ad blocking is legal. The court rulings in the past got it exactly right when they noted that HTML files aren’t actually changed by ad blockers—they just affect how browsers process and display that content. As the court ruling in 2022 sensibly observed, “It would also represent a disproportionate encroachment on the user’s freedom of action if it were not up to the user to decide whether and how to execute a legally acquired program.”
But here we are, yet again, apparently because some publishers can’t accept that users have agency over their own computing devices.
The case will continue to drag on, which means we’re in for more rounds of this tiresome debate. But the principle at stake couldn’t be clearer: Users should have the right to control their own browsing experience, and that includes using software that blocks, modifies, or filters content according to their preferences.
If German courts decide otherwise, they won’t just be making a mistake about copyright law—they’ll be helping to break the open web itself.
The rushed integration of half-cooked automation into the already broken U.S. journalism industry simply isn’t going very well. There’s been just countless examples where affluent media owners rushed to embrace automation and LLMs (usually to cut corners and undermine labor) with disastrous impact, resulting in lots of plagiarism, completely false headlines, and a giant, completely avoidable mess.
Earlier this month, we noted how Politico is among the major media companies rushing to embrace AI without really thinking things through or ensuring the technology actually works first. They’ve implemented “AI” systems –without transparently informing staff — that generate articles rife with all sorts of gibberish and falsehoods (this Brian Merchant post is a must read to understand the scope).
Politico management also recently introduced another AI “report builder” for premium Politico PRO subscribers that’s supposed to offer a breakdown of existing Politico reporter analysis of complicated topics. But here too the automation constantly screws up, conflating politicians and generating all sorts of errors that, for some incoherent reason, isn’t reviewed by Politico editors.
Actual human Politico journalists are understandably not pleased with any of this, especially because the nontransparent introduction of the new automation was in direct violation of the editorial union’s contract struck just last year. So unionized Politico employees have since been battling with Politico via arbitration.
On July 11, the PEN Guild (which has about 250 Politico union members) and Politico held an arbitration hearing to determine whether the publication had broken its collective bargaining agreement. Nieman Lab obtained access to the arbitration hearing transcript, at which Politico higher up editors tried to claim that automation shouldn’t be held to the same editorial standards as humans.
Specifically asked about the problems with Report Builder, deputy editor-in-chief Joe Schatz insisted that because Report Builder was technically built by coders, and its output isn’t reviewed by professional editors (which is insane) it shouldn’t have to adhere to the site’s broader editorial standards:
“He went on to argue that Report Builder sits “outside the newsroom,” since Politico’s product and engineering teams built the tool and editorial workers don’t review its outputs. As a result, he said, the AI-generated reports should not be held to the newsroom’s editorial standards.”
That’s… incoherent. LLMs are tools, they’re not inherently exempt from editorial standards and material reality just because management is bullish on AI. The CEO of Politico Owner Axel Springer, Mathias Döpfner, recently introduced a company wide mandate that every single employee in the organization has to not only use AI, but consistently file reports justifying why they don’t. It’s rather… cultish.
This tap dancing around what constitutes “newsgathering” is effectively a way for Politico management to try and tap dance around their contract with union employees, since said contract plainly states:
“If AI technology is used by Politico or its employees to supplement or assist in their newsgathering, such as the collection, organization, recording or maintenance of information, it must be done in compliance with Politico’s standards of journalistic ethics and involve human oversight.”
Again, most U.S. media is owned by affluent older, white, Conservative men who generally see AI not as a way to make their products or employees’ lives better or more efficient, but as a way to cut corners and undermine already underpaid labor. Men like Döpfner, who like our authoritarian President, and whose editorial standards and relationship with labor were pretty fucking shaky to begin with.
These men want to create a fully automated ad engagement ouroboros that effectively shits money without having to pay humans a living wage, and that goal is evident everywhere you look.
In an ideal world this would result in surging demand for intelligent, savvy journalism and analysis by competent, experienced people who actually have something to say. But this isn’t an ideal world, and increasingly the kind of folks dictating the trajectory of U.S. media (and automation) are routinely demonstrating they lack any sort of ethical competency for the honor.
We’ve noted repeatedly how early attempts to integrate “AI” into journalism have proven to be a comical mess, resulting in no shortage of shoddy product, dangerous falsehoods, and plagiarism. It’s thanks in large part to the incompetent executives at many large media companies, who see AI primarily as a way to cut corners, assault unionized labor, and automate lazy and mindless ad engagement clickbait.
The folks rushing to implement half-cooked AI at places like Red Ventures (CNET) or G/O Media aren’t competent managers to begin with. Now they’re integrating “AI” with zero interest in whether it actually works or if it undermines product quality. They’re also often doing it without telling staffers what’s happening, revealing a widespread disdain for their own employees.
This sort of behavior has been particularly problematic at the DC gossip rag Politico, where ownership continues to implement “AI” systems that don’t really work all that well, constantly introduce new errors human editors have to correct, and engage in “behavior” that violates editorial standards. All without the input and knowledge of actual journalists or editors.
This rundown on the Politico AI mess by Brian Merchant is worth a read. He documents how in one instance, Politico Editorial staff were told just an hour before a new AI product was introduced, given zero chance to ask questions about how it would work, why it was there, or why it was being launched. The tech then immediately proceeded to make a bunch of embarrassing, rookie mistakes:
“The AI promptly generated a post that misspelled Kamala Harris’s mother’s name. The entry was taken down without comment or correction from an editor, in apparent violation of Politico’s editorial standards. Weeks later, Politico’s management deployed the AI tool again, this time in an even higher-profile setting: The vice presidential debate between JD Vance and Tim Walz. The feature again trampled editorial guidelines, this time transcribing verbatim Vance’s comments about “illegal immigrants”—a term that Politico writers are not allowed to use, and editors are not supposed to publish.”
Politico management introduced another AI “report builder” for premium Politico PRO subscribers. It’s supposed to offer a breakdown of existing Politico reporter analysis of complicated topics. Apparently the “AI” sucks at doing that, as well:
“It’s wholly behind the paywall, but when we have asked it things, it’s giving us back some pretty glaring errors,” [Politico journalist Ariel] Wittenberg says. “I asked it about ‘The Impact of President Biden’s Oil Policies,’ and it wrote me a whole page-and-a half thing, and every single policy it mentioned was a policy of Trump’s. And it cited real stories at the very bottom, from our members, the implication being that if someone is reading this, and it’s erroneous, not only does our AI not know the difference between Biden’s policies and Trump’s, but maybe the authors of the cited articles didn’t, either.”
Great stuff! This reflects the same experiences with other major media outlets that expect LLMs to genuinely understand their own outputs. You’ll recall that Apple had to pull its AI news synopses system because the AI routinely introduced glaring mistakes; VC “AI” marketing has many execs believing we’re just a few steps from full sentience, when these systems are still struggling with the very basics.
We’ve seen the same nonsense over at Microsoft, which was so keen to leverage automation to lower labor costs and glom onto ad engagement that they rushed to implement AI across the entirety of their MSN website, never really showing much concern for the fact the automation routinely produced false garbage. Google’s search automation efforts have been just as sloppy and reckless.
Again, the “automation” in this instance is also a direct reflection of the quality of Politico’s ownership, who likes Trump and actively embraces lazy “both sides” journalism that buries the truth in pursuit of fake ideological objectivity. It’s not any sort of coincidence that owners who don’t care about journalism, transparency, labor, or factual reality introduce broken tools that harm all four.
In this case, the introduction of the new automation wasn’t just rushed and lazy, it was in direct violation of the editorial union’s contract struck just last year. So union employees have since been battling with Politico via arbitration:
We’re taking @politico.com to arbitration this week for its unethical use of AI and we’re asking for your support! bit.ly/PENGuild
A lot of affluent media owners have also just completely drunk the marketing Kool-Aid on modern “AI” as just a few skips away from full sentience; they genuinely believe modern LLMs are more capable than they actually are. And they’re soo keen on using this emerging technology to cut corners, “save money” and undermine and replace pesky unionized labor, they’re blind to the fact it often doesn’t work.
The CEO of Politico Owner Axel Springer, Mathias Döpfner, recently introduced a company wide mandate that every single employee in the organization has to not only use AI, but consistently file reports justifying why they don’t. This sort of stuff goes way past useful technological adoption and teeters into delusional religion, and the technology becomes a window into very ordinary human failures.
Earlier this year, we wrote about outspoken financier Bill Ackman’s threat to sue Business Insider over articles regarding accusations by the publication that Ackman’s wife, Neri Oxman, had plagiarized parts of her dissertation years ago. The timeline and context of what happened here is important because Ackman continues to ignore it.
Ackman got upset about activity by students at his alma mater, Harvard, in response to the Hamas attacks on Israel on October 7th. He then helped orchestrate a campaign to oust Harvard’s new President, Claudine Gay, because of what he viewed as her insufficient response to antisemitism on campus. While those initial efforts went nowhere, the situation gained more attention when some nonsense peddlers of the grifter class found examples of what they called plagiarism, but which many academics felt were inadvertent errors in weak paraphrasing, or inadvertent failure to properly cite sources.
For example, one of the people Gay was accused of plagiarizing came to her defense, noting that while it may have been technically improper, it was over minor bits and not the heart of what she was writing:
The plagiarism in question here did not take an idea of any significance from my work. It didn’t steal my thunder. It didn’t stop me from publishing. And the bit she used from us was not in any way a major component of what made her research important or valuable.
So how serious a violation of academic integrity was this?
From my perspective, what she did was trivial—wholly inconsequential. That’s the reason I’ve so actively tried to defend her.
This effort continued for some time, with Ackman again being a leading voice, perhaps recognizing that what he failed to accomplish by complaining about her handling of antisemitism, he could eventually accomplish through piling on and promoting the claims of plagiarism. And it worked. Soon after, Gay lost her job as President of Harvard.
Around that time, Business Insider published its first piece about Neri Oxman, Ackman’s wife, noting that her dissertation at MIT was also found to contain some plagiarized passages. The article was pretty explicit that it was not accusing Oxman of some inherent unethical behavior, but rather noting the similarities between what she had done and what Gay had done:
Like Oxman, Gay was found to have lifted passages from other academics’ work without using quotation marks while citing the authors.
Gay’s plagiarism was seen by some academics, including many of those she plagiarized, as relatively inconsequential.
George Reid Andrews, a history professor at the University of Pittsburgh and one of the people Gay plagiarized, told the New York Post that what Gay did “happens fairly often in academic writing and for me does not rise to the level of plagiarism.”
That is, the entire point of the article was to highlight the parallel situations between Gay and Oxman. It was to emphasize that inconsequential copying or inadvertent failure to properly cite something minor in an academic paper happens all the time.
The point was not that Oxman was terrible. The point was to highlight Ackman’s double standard. Indeed, Business Insider wrote an entire article comparing the accusations against both Gay and Oxman while highlighting Ackman’s noticeably different approach to each.
“Part of what makes her human is that she makes mistakes, owns them, and apologizes when appropriate,” he wrote in a post on X following Business Insider’s report on Oxman’s plagiarism.
That’s a starkly different approach from the one he took toward Gay after she stepped down as president earlier this week. At the time, Ackman said she should be fired from Harvard’s faculty entirely because of what he called “serious plagiarism issues.”
“Students are forced to withdraw for much less,” he posted on X. “Rewarding her with a highly paid faculty position sets a very bad precedent for academic integrity at Harvard.”
However, the instances of Oxman’s and Gay’s plagiarism have more similarities than differences, according to experts and an internal analysis.
At no point that I’ve seen in this ongoing ordeal has Ackman acknowledged that. Rather, he has gone on rant after rant after rant, combined with threats to sue people for their free speech (while pretending to be a free speech absolutist), pretending that the point of the Business Insider articles was to smear Oxman to punish Ackman for his support of Israel.
A few weeks ago, Ackman promised to sue and has hired Libby Locke of the firm Clare Locke to issue a massive (and massively ridiculous) threat letter to Axel Springer/Business Insider, demanding corrections and retractions of various articles. It’s a Gish gallop of a threat letter. Responding to every single bit of nonsense in the threat letter is beyond the scope of my time, and even so this article is going to be ridiculously long.
Just as an aside, no one who hires Clare Locke is a “free speech absolutist.” Clare Locke (and especially partner Libby Locke) are immensely proud of their ability to threaten media outlets to kill stories (and they’re not as effective as their media portrayal would have you believe). That’s the opposite of free speech absolutists. They are speech suppressors. Their website kinda brags about this:
Sending a 77-page “demand letter” is ridiculous and suggests that you don’t have a clear ask or a clear explanation. Ackman, over on ExTwitter, admits that the letter was written on purpose to be turned into a complaint:
It will not go unnoticed that the demand letter reads remarkably similarly to the pleadings of a lawsuit. If needed, we can convert the demand letter into a complaint and file a lawsuit, which I hope is unnecessary
The letter is long, repetitive, and silly. It does not engage with the actual purpose of the Business Insider articles, to compare Gay’s inadvertent failures to cite with Oxman’s similar mistakes in a manner that highlights how Ackman’s freakout over Gay suggests a huge double standard. Instead, it opens by arguing that Business Insider and the reporters and editors who worked on these articles are antisemitic and targeted Ackman because of his pro-Israel views.
Ackman’s criticism, particularly of Claudine Gay, the former president of his alma mater, Harvard, did not sit well with Katherine Long (an Investigative Reporter at Business Insider), John Cook (Business Insider’s Executive Editor), and Henry Blodget (Business Insider’s Founder and Chairman), who have publicly expressed anti-Zionist and purportedly antisemitic views.
It then goes on at great length (and great repetitiveness) to claim that it’s not plagiarism if it wasn’t done on purpose. Really.
As confirmed by Business Insider and the common definition of plagiarism, plagiarism requires an intent to steal or defraud. Unintentional citation mistakes and honest errors are not considered plagiarism as the word is commonly understood
Now, there are two major problems with this. First of all, as noted here (but not in anything from Ackman), if that’s the case, then it appears Gay did not plagiarize either. And, again, that was the whole point of the Business Insider articles.
But, secondly, yes, you can absolutely plagiarize without intent to do so. The letter plays a very sloppy game of “use the definition we want at different times throughout our argument.” Note that even in the quote above, Locke’s letter says “as the word is commonly understood.” But… that’s not true. As commonly understood, inadvertent plagiarism… is still plagiarism. It might not be as serious. But it’s still plagiarism.
And the most incredible bit is that the letter admits that itself. Much later in the letter, it argues that Oxman couldn’t have done anything terrible because of MIT’s guidelines on plagiarism at the time. The letter, early on, states the following:
As MIT itself plainly explains in advising students of its academic standards, plagiarism “does not include honest error.” MIT also recognizes that “unintentional” plagiarism is not considered academic misconduct. In other words, honest mistakes happen, but those simple errors do not count as academic misconduct.
But, again, the whole point was that Gay appeared to have committed similar unintentional acts of plagiarism, yet Ackman demanded her head over them.
Either way, later on in the complaint letter, they show snippets from MIT’s guidebook which… read quite differently in context. They do not at all seem to be suggesting that unintentional plagiarism is not plagiarism. Rather, they seem to be stating that unintentional plagiarism is still very much plagiarism, and that’s why one should be very careful to not even engage in unintentional plagiarism. Here’s page 12 of the letter, in which it seems pretty clear that MIT is saying “don’t plagiarize, even if it’s unintentional,” but where Oxman/Ackman/Locke seem to be pretending it’s saying “meh, as long as you didn’t mean it, you’re fine.”
Notice, clearly in there, that MIT is not saying that “accidental” and “unintentional” plagiarism is fine. Both of the clips above are trying to help students understand why accidental plagiarism is still wrong and how they need to learn how to properly do academic writing by citing sources and writing up things by yourself.
Page 13 of the letter provides even more examples of this, where they seem to think it is absolving Oxman and revealing Business Insider’s ill-intent, when it really just seems to show that Oxman/Ackman/Locke don’t understand what they’re looking at:
Those are all clearly explanations for how to avoid that kind of “botched paraphrasing” which it appears both Gay and Oxman may have engaged in.
Notably, this demand letter leaves out the line right after those two screenshotted selections above, which proves that Libby Locke is omitting important context. Here, see it for yourself:
“In any event, even if the plagiarism is unintentional, the consequences can still be very painful.”
And then it explains why it might be painful:
Plagiarism in the academic world can lead to everything from failure for the course to expulsion from the college or university.
Plagiarism in the professional world can lead, at the very least, to profound embarrassment and loss of reputation and, often, to loss of employment. Famous cases of plagiarism include the historian Stephen Ambrose (accusations about six of his books have been made, most famously about The Wild Blue) and historian Doris Kearns Goodwin (who ended up asking the publisher to destroy all unsold copies of The Fitzgeralds and the Kennedys). Such plagiarism may be accidental, but its consequences are the same as for intentional plagiarism.
The threat letter leaves out all of this context and seems to pretend that MIT is suggesting that such unintentional plagiarism is fine. When the very document they’re quoting from says the exact opposite.
And what’s funny is that throughout the 77-page letter, Locke keeps insisting that omissions by Business Insider that distort the meaning of things are clearly defamatory and/or evidence of actual malice. Yet Locke engages in identical behavior.
The next page of the letter actually drives this point home (though again, the letter’s author does not appear to recognize this) by including a screenshot of the MIT Academic Integrity handbook that explains how to avoid “inadvertent plagiarism.”
All of that undermines Oxman’s argument, but the letter seems to think it boosts it. That’s because it confuses what counts as “research misconduct” with what counts as plagiarism. Looking at the MIT documents in context suggests that they are talking about two different things: what counts as plagiarism (which could include accidental or inadvertent copying and missed citations) and what counts as misconduct for which sanctions make sense, which requires intent.
But none of that really matters for the point that the Business Insider piece was trying to make: comparing Gay’s conduct (which Ackman insisted was a horrible, fireable offense) to Oxman’s (which Ackman continues to insist was no big deal).
On the very next page of the letter, it (falsely) suggests all this proves that Oxman’s “inadvertent” failure to properly cite somehow was not problematic. Even as the very documents they screenshot say the literal opposite. It also claims that “quoting one part of an article without quoting another part which might tend to qualify or contradict the quoted part is evidence of actual malice” even though that’s the same thing this letter does in this very section.
Business Insider’s purpose in excluding references to these portions of MIT’s Academic Integrity Handbook and academic misconduct policies in its articles on Dr. Oxman is clear: Including them would have debunked the notion that Dr. Oxman had committed intentional plagiarism and academic fraud, and Business Insider wanted to create the false impression that Dr. Oxman committed intellectual theft.
Business Insider’s wholesale omission of MIT’s policies and procedures contradicting its preconceived narrative was deliberate, and it is further evidence of Business Insider’s actual malice towards Dr. Oxman and Ackman. Indeed, the law holds that “quot[ing] one part of an article without quoting another part which might tend to qualify or contradict the part quoted” is evidence of actual malice. Goldwater, 414 F.2d at 336; see also Eramo, 209 F. Supp. 3d at 872 (“[D]isregard[ing] contradictory evidence” is supportive of actual malice.); Murray, 613 F. Supp. at 1285 (“It would be unjust and nonsensical to allow the defendant to rely on the report for certain purposes and to ignore it for others.”).
Once again, it’s unlikely that anyone with half a brain reading the BI pieces would think they were accusing Oxman of anything particularly nefarious. They were simply comparing what she had done to what Gay had done and noting the similarities.
There’s so much more that’s silly about this threat letter that there’s no way to go through it all, so I’m going to skip some of it and give highlights of other parts.
There’s an entire section whining about the use of the word “marred” in one of BI’s headlines, claiming that because it was only inadvertent, it couldn’t have been “marred.” I shit you not:
Given that the only instances of alleged plagiarism Business Insider identified in this article were only four paragraphs with eight missing quotation marks and one instance in which Dr. Oxman failed to cite an author she cited extensively elsewhere in her 330-page dissertation, it is wildly inaccurate to characterize her dissertation as “marred” (i.e., ruined or spoiled) “by plagiarism.”
Except they’re using a… weird definition of marred. It’s most commonly “damaged or spoiled to a certain extent; made less perfect.” As such, even small defects (such as those described) sure would seem to count as marred. My articles are often marred by typos, but that doesn’t mean that every word is a typo. And, either way, the use of the word “marred” is, in no world, anywhere close to the standards of defamation.
Then we get to the whole “citing Wikipedia” nonsense. Ackman had argued on ExTwitter back when this first came about that at the time of Oxman’s dissertation Wikipedia was still new and there weren’t general agreements on citing it, but that’s… nonsense. On multiple levels. First off, it wasn’t that new. Wikipedia was widely known and widely used at that point. Second, even if there wasn’t agreement on how to cite Wikipedia, that did not change the simple fact that it was still very much widely considered plagiarism to copy directly from it without citation/quotation. The lack of understanding of how to cite Wikipedia is a separate issue from the question of copying without attribution.
I had thought that once a lawyer got their hands on this fight, this argument would die a sudden death, but apparently the law firm of Clare Locke has no problem pushing totally specious arguments, because that makes it in here too:
Business Insider, however, intentionally omitted that MIT’s Academic Integrity Handbook at the time Dr. Oxman wrote her dissertation in 2009 and 2010 did not address—much less require— citation to Wikipedia, which itself is a collaborative resource with no single author to whom ideas could be attributed, and which at the time of her dissertation was of relatively nascent origin. In fact, Wikipedia was so inchoate that MIT had not yet developed or published any guidance on how researchers should use Wikipedia. Only later—several years after Dr. Oxman’s dissertation was published—did MIT revise its Academic Integrity Handbook to include a prohibition on citing Wikipedia for academic work. In 2009 and 2010, when Dr. Oxman wrote her dissertation, no such prohibition existed.
Note the shift here between citing and copying without attribution. Those are two separate things that this letter seeks to conflate. Even if MIT hadn’t published policies on how to cite Wikipedia, it has zero impact on whether or not copying directly from Wikipedia might be considered plagiarism. It still was. And it’s ridiculous to suggest that people didn’t think that to be the case in 2010.
There’s a whole section complaining that BI could not possibly call out Oxman for plagiarism unless it did an “inquiry or investigation into Dr. Oxman’s mental state to support such a finding.” To which I will just say… did Bill Ackman conduct such an “inquiry or investigation into Dr. Gay’s mental state” to support the many statements he made about her alleged plagiarism?
Or do we just admit that the billionaire gets to live by different standards than he seeks to impose on others?
After BI published its initial article, Oxman posted some tweets admitting that she had failed to properly put quote marks in certain sections:
Any reasonable read of this is that Oxman is admitting to not quoting things she should have quoted, which… is plagiarism, even by the definitions that were quoted earlier in the threat letter. Thus, BI published a new article saying that she admitted to plagiarism. The threat letter is apoplectic in insisting that she didn’t admit to plagiarism, and only to omitting quotation marks, which is fucking crazy.
Shortly after the first article was published at 2:28 PM on January 4, Dr. Oxman acknowledged in a post on X that, in “four paragraphs” of her 330-page dissertation, she did not “place the subject language in quotation marks, which would be the proper approach for crediting work,” and in one sentence she paraphrased an author but inadvertently did not cite him. She apologized for these errors. She did not, however, admit to plagiarism, intentional or otherwise. Three hours and 30 minutes later, Business Insider published a follow up article falsely claiming in its inflammatory headline that “Neri Oxman admits to plagiarizing in her doctoral dissertation after BI report.”91
Business Insider knew that when it published this article that its statement was false— Dr. Oxman had not admitted to plagiarism. Business Insider read and included a link to Dr. Oxman’s post in the article, but it purposefully mischaracterized Dr. Oxman’s post in the headline creating the false impression that Dr. Oxman had admitted to intellectual theft.
I’m still amazed at the chutzpah here. I’ve read Oxman’s tweet multiple times, and it’s pretty clear that she is admitting to plagiarism, though saying it was inadvertent. But, again, (1) inadvertent plagiarism is still considered plagiarism (including by MIT) and (2) it’s the same sort of thing that Dr. Gay was accused of, which was the whole point of BI’s efforts.
There’s another whole section on all of the Jeffrey Epstein stuff which I won’t get into (Oxman had a very, very distant connection to Epstein via the MIT Media Lab where she worked, and which Epstein infamously had donated money to, though apparently unrelated to her work). But the letter (which I’ll note claims to be on behalf of Oxman and not Ackman) whines quite a bit about BI stating that Ackman had sought to “pressure” then Media Lab director Joi Ito not to name Oxman in response to a media inquiry. It also whines about BI’s claiming that the Boston Globe had “uncovered” emails between Ackman and Ito, when (according to this letter) Ackman had sent them willingly to the Boston Globe.
But, the emails he forwarded sure do look like “pressuring” Ito. I guess it depends on your definition of “pressure” but the entire point of the email was asking Joi not to name Oxman and giving a bunch of reasons why he shouldn’t. That sure sounds like it meets one of the common definitions of pressure: “the act of trying to persuade or force someone to do something.” The threat letter, instead, seems to think “pressure” must involve threats of some kind, which… is not what the word means. And, remember, the threat letter itself talks about the use of “common definitions” (quoted above).
The letter says that Business Insider “falsely” claimed that Oxman and Ackman (who again, the letter does not purport to represent) “did not dispute the facts” in the BI articles, and then points out that this is false, because… of Ackman’s silly rant about citing Wikipedia:
In just one example, at 9:57 PM on January 5, just a few hours after Business Insider published its article falsely accusing Dr. Oxman of plagiarizing from Wikipedia and other sources, Ackman posted on X disputing that using Wikipedia for definitions is plagiarism. He asked rhetorically, “How can one defend oneself against an accusation of plagiarizing Wikipedia … Isn’t the whole point of Wikipedia that it is a dynamic source of info that changes minute by minute based on edits and contributions from around the globe? Has anyone (other than my wife) ever been accused of plagiarism based on using Wikipedia for a definition?” 110 Among other challenges to Business Insider’s reporting, Ackman directly disputed the notion that Dr. Oxman’s inclusion of definitions from Wikipedia in her dissertation was plagiarism.
But… that’s not disputing the facts. That’s disputing the interpretation of the facts (it’s also silly).
Much of that section is just a hilarious list of Bill Ackman not refuting any of the facts to the actual reporters or editors of the piece, but reaching out to various super rich executives somewhat associated with Business Insider, who assured him they were looking into things. That is not the same thing as “disputing the facts” to the actual journalists. That’s whining to the rich in hopes they’ll smack down the poor reporters who dared to make you look silly.
There are five (five!) pages that are just screenshots of Ackman’s (again, not officially represented in the letter) WhatsApp messages to Axel Springer boss Mathias Dopfner “disputing” the stories, but basically none of what is disputed is actual provably false statements of fact. They pretty much all appear to be differences of opinion on how things were portrayed in the BI stories. That’s not defamation. And it’s not even disputing the underlying facts — which is all BI claimed.
Hilariously, the only response from Dopfner to Ackman is a short email, which does not agree to anything that Ackman claimed. It just says “Thanks for your e-mails. Very helpful input to clarify things during the investigation” and then notes that because Ackman had announced plans to sue BI, his general counsel had (correctly) told him not to communicate with Ackman anymore:
Then we get to “actual malice.” On its website, Clare Locke declares itself “the leading defamation law firm in the United States.” I guarantee you that Libby Locke knows what “actual malice” means in the context of a defamation lawsuit. And it is not “they didn’t like the plaintiff” or “they were biased against the plaintiff.” Yet, Libby Locke seems to not care what the legal definition of actual malice is in their laughably wrong section on actual malice.
Business Insider never had any interest in journalistic integrity or the truth when reporting on Dr. Oxman. From the outset, its reporting was tainted by its progressive political bias and the desire of its anti-Zionist reporters and editors to smear a prominent, Jewish advocate and his family for speaking up against former Harvard President Gay. The Business Insider employees primarily responsible for this attack have a history of unethical conduct and have publicly expressed their anti Zionist and/or purported antisemitic views.
Beyond being fucking ridiculous, it’s also got nothing to do with actual malice. Actual malice means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false.” Also, “reckless disregard” doesn’t mean that you were just sloppy or lazy. It means that the speaker had serious doubts about the truth of the statements but published them anyway. The Supreme Court has been quite clear that it doesn’t mean biased reporting. And it doesn’t even mean mere negligence in reporting.
For there to be actual malice, BI’s reporters would have to fundamentally know (or have very strong beliefs) that what they were publishing was false, and then publish it anyway. But, they’ve (rightly) stood by their reporting. And Ackman, repeatedly, is only complaining about their interpretation of the facts, not the underlying facts themselves.
The letter then goes on to trash the reputation of Henry Blodget, BI’s founder, who had talked to Ackman early on when Ackman was first freaking out about the stories (hilariously, Blodget suggested Ackman could write for BI at one point, and in return he gets trashed). Blodget is, of course, easy to trash. He somewhat infamously settled with the SEC for publicly pumping up dot-com era stocks, while privately trashing those stocks. Some of us still remember all that.
The letter also tries (pathetically) to trash the reputations of the reporters and editors who worked on the BI stories, including digging editor John Cook’s self-admitted story about how as a teenager in the 1980s he was suspended from high school for publishing an obnoxious underground newspaper (I too published an underground newspaper in high school, and it was also obnoxious, but also I didn’t get suspended, in part because I wrote the back page of the first issue that was an entire article about how the First Amendment works, citing numerous Supreme Court cases on why the school couldn’t take action against those of us who wrote the paper… which was, perhaps, a preview of what my life was to become).
But what does that have to do with actual malice? Fuck all! It’s just Ackman burning bridges for show — and potentially as a threat to try to convince others not to report on his wife, or he’ll trash your reputation too (come at me, Bill).
The letter then moves on to misleadingly claim that Business Insider was trying to get Oxman fired. Again, this misunderstands what seemed pretty obviously to be the point of the articles: to compare Ackman’s response to the accusations around Gay as compared to his wife. The letter makes a big deal of Insider’s reporter, Katherine Long, asking in her initial email to Ackman if he expects Oxman to lose her job (Long, at the time, mistakenly believed that Oxman was still at MIT, when she had left a few years earlier):
In context, it’s obvious why Long asked this question. Since Ackman had pushed so strongly for Gay to lose her job at Harvard, it’s a kind of obvious question for a reporter to ask about Ackman’s wife (who they thought was still at MIT) given the whole point of the exercise was to showcase Ackman’s selective outrage and differential treatment of Gay compared to his wife.
But the letter treats this as an attempt to make Oxman lose her job and seems outraged. Which is fucking hilarious given Ackman’s tirades trying to get Gay fired from her job.
Business Insider’s Coverage Of Dr. Oxman Was Motivated by Its Desire To Get Dr. Oxman Fired by MIT.
Almost no one could possibly think this is what Long was trying to do. It seems blatantly obvious that she was simply seeing if Ackman felt his wife should face the same treatment that he helped engineer for Gay.
There’s also some just incredible hubris in the letter, in that it reveals Ackman petulantly demanding in text messages to Blodget that the articles be taken down while the promised investigation on the reporting occurred (which would be an extraordinary step that would have brought Streisand Effect levels of extra attention to the claims) and Ackman seems to think that BI’s refusal to accede to his demands when Blodget promised he was “working” on the issue is somehow more proof of malice (when the more sensible, and likely accurate, reason is that BI investigated, found that the story still held, and there was no reason to take it down).
There are also about eight whole pages of the letter going on (at ridiculous length) about what an amazing, brilliant, and famous person Neri Oxman is, which is hilarious since when all this started and people pointed out to Ackman that defamation against public figures involves a high bar (that high bar being the real actual malice, not the pretend one in this letter) Ackman tried to argue she wasn’t a public figure:
So, according to Bill Ackman, she’s not a celebrity academic or a public figure, but the threat letter on her behalf has eight pages lauding all of her accomplishments, awards, public exhibitions including at top museums around the world, the description in the NY Times of how she’s “a Modern-day da Vinci” and more. So, I guess they’re not even going to try to argue that she’s not a public figure.
There’s also a ridiculous number of words describing the alleged “harm” all of this has had, failing to recognize that if Ackman hadn’t made such a big deal of all of this, the story likely would have died out after a day or two as people got a good laugh at Ackman’s hypocrisy and moved on. Instead, his continued talking about it, and now sending this letter have only guaranteed that many more people are aware of all of this. If there’s any harm (and that seems unlikely) much of it should be pinned on Ackman’s inability to let this go.
On the final page of this opus, we get the “demands.”
Axel Springer and Business Insider must mitigate the damage they have caused by correcting their libelous reporting, issuing statements setting the record straight, making a sincere and meaningful public apology to Dr. Oxman and Ackman, and creating a fund to compensate other victims of Business Insider’s libelous reporting and to discourage their inappropriate conduct in the future. (Dr. Oxman is seeking no compensation for herself to make available additional resources for other victims.) Failure to take these steps will expose Axel Springer and Business Insider to substantial legal liability and will be further evidence of actual malice directed toward my client.
This is nonsense. I’m quite sure BI’s general counsel is not worried about this. Nothing in the letter indicates anything close to the level that would be defamation. The only real question — and the likely real intent of the letter — is whether or not all the rich folks that Ackman called up and texted during this whole mess, including Dopfner, Henry Kravis, and Axel Spring board member Martin Varsavsky, decide to just go along with this to hush up the mouthy rich guy so they won’t have to deal with more of this nonsense.
At this point, it’s pretty clear that Oxman (and Ackman) have no actual defamation case here. They have a lot of noise and bluster. And sometimes that’s enough to get a publication to back down (which Clare Locke seems to want you to believe they can produce in every case). But it would be a fucking shame and an embarrassment if Axel Springer/BI caved here, and would put all of its future reporting in question by showing that they could be bullied by specious, vexatious legal threats.
In Ackman’s tweet revealing this letter, he claims that he hasn’t sued first because “people we highly respect” had told him that Axel Springer was “perhaps the strongest long-term supporter of the state of Israel of any media organization, and also an important advocate against antisemitism.” What that has to do with anything in the letter, I do not know.
In the end, this is just more censorial bullshit. It’s hilarious that Ackman presents himself as a “free speech absolutist” when he’s doing this shit to seek to pressure (as it’s commonly defined!) BI into removing these stories. It misses the entirety of the point of these articles and pretends they’re about attacking Oxman, when it’s obvious to anyone outside of Ackman’s immediate sphere that the intent was to highlight the very, very different treatment Ackman gives to the accusations against Gay and Oxman.
Indeed, this very letter demonstrates that point to a much greater level. All this letter does is call that much more attention to Ackman’s disgusting double standard. When it’s someone he doesn’t like for other reasons, he’s willing to play up the plagiarism claims and push for them to lose their job. When it’s his wife, he tries to burn down an entire media outlet.
All this letter shows is that Bill Ackman is a censorial hypocrite.
New Politico owner and Axel Springer CEO Mathias Döpfner has been craving U.S. press attention, and got more of it than he wanted this week. Döpfner was the focus of a not particularly flattering profile in the Washington Post showing, among other things, that the German billionaire was excited by the prospect of a second Trump term and really liked a lot of the stuff Trump was up to:
Döpfner went on to argue that Trump had made the right moves on five of what he deemed the six most important issues of the last half century — “defending the free democracies” against Russia and China, pushing NATO allies to up their contributions, “tax reforms,” and Middle East peace efforts, as well as challenging tech monopolies…“No American administration in the last 50 years has done more.”
Most of those claims, by any objective measurement of truth (not that we do that anymore), are comically wrong. The Trump GOP’s version of “antitrust reform,” for example, has been a bumbling, cronyistic, hollow mess. And the Trump era tax cuts generally involved throwing billions of dollars in tax relief at giant predatory monopolies like AT&T… in exchange for jack shit.
When pressed about the email by the Post, Döpfner allegedly tried to lie about it. Then, when the lie didn’t work, he tried to pretend he was just being “provocative.” A stellar start for a guy trying to position himself as a much-needed elixir to very broken U.S. journalism:
Asked about the email, Döpfner initially responded with a forceful denial. “That’s intrinsically false,” he said. “That doesn’t exist. It has never been sent and has never been even imagined.”
When shown a printout of the text, Döpfner allowed a glimmer of recognition. It’s possible, he said, that he may have sent the email “as an ironic, provocative statement in the circle of people that hate Donald Trump,” because that’s exactly the kind of ironic, provocative thing that Döpfner, a garrulous and enthusiastic texter, likes to do.
The profile paints a picture of a wealthy billionaire who doesn’t actually understand how the U.S. media industry he’s now a major player in actually works. Döpfner is at the vanguard of a number of executives and outlets that are responding to surging fascism by avoiding hard truths and heading further to the right, all the while pretending this rightward shift is objective and non-biased.
Döpfner’s media ventures (see: Bild) are quite often opinionated, sensational, and/or just flat out rightward leaning, and Döpfner is on record lauding Trump and lambasting the diabolical wokes. Yet Döpfner then gets to pretend that he has a grand vision for Politico where it operates above the “polarized” fray:
A newcomer to the community of billionaire media moguls, Döpfner is given to bold pronouncements and visionary prescriptions. He’s concerned that the American press has become too polarized — legacy brands like the New York Times and The Washington Post drifting to the left, in his view, while conservative media falls under the sway of Trumpian “alternative facts.” So in Politico, the fast-growing Beltway political journal, he sees a grand opportunity.
“We want to prove that being nonpartisan is actually the more successful positioning,” he said in an interview with The Washington Post. He called it his “biggest and most contrarian bet.”
Politico (like Axios, the New York Times, and countless others) is already routinely accused of delivering rather timid, centrist-to right leaning “he said she said” or “view from nowhere” reporting extremely focused on not upsetting sources and advertisers. It’s the type of reporting that often comically portrays all issues, even issues with very obvious truths (climate change, fascism, white supremacy) with false equivalency kid gloves, then tries to pass off this truth-averse fecklessness as somehow sagely nonbiased.
"There are two words we need to remove from our media vocabulary right now & that is 'both sides.' This crutch, this reliance on 'both sides' as a kind of lazy way of covering our political moment is deeply dangerous."
Outlets pursuing this route aren’t actually interested in being “non-partisan,” they’re interested exclusively in what makes money. And in the U.S., feckless, “he said, she said” “both sides” reporting maximizes potential revenue and avoids offending sources and advertisers, which is why both CNN and CBS have also been pursuing it despite plenty of hard lessons on the perils of this trajectory over the last decade.
There is absolutely zero indication that Döpfner, poised to be a major player in the U.S. media over the next decade, understands absolutely any of this. The Post profile paints the picture of a wealthy jet setter who is politically right wing but pretends otherwise so he can attend the right DC and NY dinner parties, and/or is not really even sure where his own politics lie (despite some pretty obvious indicators):
[Döpfner] worries about what he sees as cancel culture, and in private conversations, friends say, he gripes about identity politics. One of his sons works as the chief of staff to Peter Thiel, the conservative-libertarian tech billionaire turned MAGA kingmaker, but Döpfner has only met him a few times and says they are not close. He does profess a fondness for “contrarians,” though, and called provocateur Tesla CEO Elon Musk, currently embroiled in litigation over his noisy attempt to take over Twitter and upend its moderation policies, “one of the most inspiring people I’ve ever met.”
What the U.S. media needs is greater diversity, a massive infusion of funding, an army of courageous young journalists, better pay, far less consolidation, and leadership that actually understands not only the reality most of us inhabit but the very real threat surging fascism is posing to Democracy. Leadership that’s fully aware how “both sides” reporting is routinely exploited by grifters and authoritarians.
What we keep getting instead are loud-mouthed, ultra-rich, center-right moguls with no shortage of opinions but little actual insight, pushing the kind of chickenshit false equivalency reporting that created a significant chunk of our problems in the first place.
New Politico owner and Axel Springer CEO Mathias Döpfner has called for a ban on TikTok at the Vox Media Code conference. In fact, the lion’s share of the conference involved folks hyperventilating in one form or another over the existential threat posed by a popular social media app:
3 hours into #code2022 the most mentioned tech company is TikTok. Mathias Döpfner, CEO of Axel Springer called for a ban on TikTok “in any democracy.” @amyklobuchar talked about potential bills on TikTok as it became the gatekeeper. @profgalloway called it an existential threat. pic.twitter.com/cW9I7RWrA0
Like most of the folks freaking out about the social media app (see: FCC Commissioner Brendan Carr), Döpfner isn’t quite sure why the app is bad, he’s just damn certain it’s a foundational threat to democracy and should be banned in every country in the world. Because, apparently, it’s a “tool of espionage”:
“TikTok should be banned in every country,” he repeated, in his Q and A with journalist Kara Swisher and professor Scott Galloway. “We have at the moment a naïveté with dealing with China…. We hand over personal data to the Chinese government.” He added: “It is of course a tool of espionage.”
For one thing, Döpfner is a wealthy CEO of a media empire and currently sits on the Netflix board of directors. TikTok is a competitor in both market and mind share, so his motivation for a ban isn’t exactly without financial incentives. Most of the outlets covering his comments just float over the fact he’s got a fairly obvious financial conflict of interest right out of the gate.
But financial incentives aside, most of the folks generally freaking out about how TikTok “provides U.S. user data to the Chinese government” don’t really understand how the modern privacy landscape works, or that banning TikTok would be akin to trying to stop a river with a wink.
As we’ve noted several times, you could ban TikTok tomorrow with a giant patriotic hammer and the Chinese government could nab all the same U.S. consumer data from just an absolute parade of companies and dodgy data brokers. And they can do that because U.S. privacy and security standards have been a trash fire for decades, especially when it comes to things like sensitive user location data.
And they’ve been a trash fire for decades because most of the same folks crying about TikTok prioritized making money over consumer privacy standards. None of these folks, nor the operators of conferences like Code, seem particularly keyed in to any of this.
TikTok is a symptom of a much bigger problem when it comes to consumer privacy. There’s just a laundry list of dodgy, international and domestic companies hoovering up and selling your data to an absolute ocean of shady third parties with little to no oversight. So this idea that you can just “ban TikTok” and somehow cure the planet’s surveillance and propaganda ills is both juvenile and delusional.
There’s been a tendency among some performative politicians (see: Trump) to push scary TikTok stories for xenophobic, political, or cronyistic purposes, yet they turn a completely blind eye to the broader policy failures that made TikTok (and everybody else’s) lax privacy practices possible in the first place.
Much of the pseudo-hyperventilation about TikTok privacy is really about money. Facebook routinely pushes bogus moral panics about TikTok because it’s an existential threat to its fortunes. US telecom has a multi-decade history of riling up politicians about China. Döpfner tells a major conference TikTok should be banned worldwide because he wants the kids reading, watching and listening to his (and Netflix’s content), not TikTok’s.
The last thing on a lot of these folks minds is consumer privacy, the stability of U.S. Democracy, or the potential for mass manipulation. If they cared about those issues, they’d bring them up more than just as they relate to a single hugely popular social media app (that surely just coincidentally threatens their own market share, ad revenues, and ambitions).
Not only does getting DC all hot and bothered about TikTok help these companies, it helps feed xenophobia to a growing right wing base proud of its own bigotry. This kind of scary rhetoric, again, is of great benefit to any U.S. company that doesn’t want to compete with China, because it has a tendency to just turn policymaker brains off. Simplistic U.S. tech press coverage very much reflects this.
Yes, the Chinese authoritarian government routinely does terrible things, and there most certainly are legitimate discussions to be had as to how to actually shore up U.S. consumer privacy in the face of such threats (we very rarely actually do those things, nor are they even brought up at the Code conference, because actual meaningful policy is too boring to get clicks).
For most of these folks, hyperventilating about TikTok is a big dumb performance. One that collapses upon itself like a badly made paper mache art project under the most superficial inspection.
For way too long now, short sighted publishers have insisted that ad blocking is “stealing.” That’s always been bullshit. Back before we turned off all our 3rd party ads last year, we were perfectly fine with people using ad blockers (and we even let you just turn off ads in your preferences, if you preferred that approach).
But some publishers still don’t get it. One of the worst is the German media giant Axel Springer, who was one of the most vocal proponents of the EU Copyright Directive, and owns tons of publications around the globe, including Politico and Business Insider in the US. As obnoxious as some publishers are regarding the internet, Axel Springer has been worse. Years back, Axel Springer sued the company behind Adblock Plus and lost. The courts found that adblocking is perfectly legal.
Axel Springer decided that can’t be left to stand, and decided to try again with everyone’s favorite tool of control: copyright. In 2019 Springer came up with a bizarrely stupid argument that ad blocking is copyright infringement. The argument was that because the browser extensions change how a website is displayed in your browser, that it “changes the programming code of websites” and that makes it infringing. But that’s nonsense. Adblockers work on content that is already directly in your browser that the company sent in an authorized manner.
It’s the equivalent of saying that taking a highlighter to a book that you own is copyright infringement.
Thankfully, last week a court in Hamburg saw it that way as well and said that adblocking is not infringement. This is important not just for adblocking but for basically any kind of browser extension and for the concept of HTML itself.
From an automated translation of the ruling, the court says that “there is no unauthorized duplication and/or reworking of copyrighted computer programs” under the meaning of copyright law. It further says:
Although the HTML file and other elements are loaded into the user’s main memory when the
plaintiff’s pages are called up, the storage takes place with the plaintiff’s consent. Anyone who
provides a website agrees that the corresponding programs are called up from the website
operator’s servers – and in some cases from third-party servers – and stored in the user’s main
memory. The very purpose of offering websites is that they are accessed by users. The
intermediate steps that are absolutely necessary for this include the intermediate storage of the
files provided by the website operator on the user’s computer. Users who call up the pages of the
plaintiff and use the program “AdBlock1 Plus” are also entitled to store the files. If the user calls up
the files by calling up the website and the files – as provided by the plaintiff for the case of the
website call-up – from the servers of the plaintiff – or third party servers – are stored by the plaintiff.
If the files are transferred, an implied agreement is made that the user may save the files. Since
the files themselves remain unchanged, no possible reservation regarding deviations from the
intended program flow applies at this point. It is therefore irrelevant whether the permissibility of
the unchanged storage of the files also follows from Section 69d (1) UrhG and/or Section 44a
UrhG.
The ruling also notes that the HTML files “are not changed by the program “AdBlock Plus.” It merely “has an impact on the data structures generated by the browser.”
More importantly, the court notes that:
It would also represent a
disproportionate encroachment on the user’s freedom of action if it were not up to the user to decide
whether and how to execute a legally acquired program, as long as the user does not modify the
program itself…
This ruling may still be appealed, but as former EU Parliament member Julia Reda notes in response to this ruling:
?This ruling sends an important signal that frivolous lawsuits will not be accepted. The court has correctly concluded that the copyright protection of software does not extend to the outputs of software. Just as copyright law does not entitle a book publisher to forbid readers from underlining sections of a book or writing in the margins, copyright law does not give digital publishers the power to tell users how to display a website,?
But it certainly does tell us just how much big publishers like Axel Springer will seek to abuse copyright law to gain extra control over users…
For over a decade, some Web sites have been moaning about adblockers. The German publishing giant Axel Springer hates them. It has been pursuing Eyeo, the company behind Adblock Plus, through the courts in Germany for years, accusing it of unfair competition. Here’s how that turned out for the publisher, as reported by Eyeo on its blog:
Axel Springer publishing house has been trying to get ad blocking declared illegal. We beat them in the regional courts, we beat them in the appeals court, so they took us to the supreme court in Germany to try their luck a third time.
A year ago, Axel Springer lost at Germany’s supreme court.
Of course, big publishers don’t let little things like losing court cases at every level of the legal system stop them from pursuing their attack. As the Heise Online site explains (original in German), Axel Springer is suing Eyeo yet again, this time for alleged copyright infringement (via Google Translate):
“Advertising blockers change the programming code of websites and thus directly access the legally protected offerings of publishers,” explains Claas-Hendrik Soehring, Head of Media Law at Axel Springer. “In the long run, they will not only damage a central financing basis for digital journalism but will also jeopardize open access to opinion-forming information on the Internet ”
As Eyeo’s company spokesperson pointed out to Heise Online, this claim is ridiculous. Adblocking software operates within a person’s browser; it simply changes what appears on the screen by omitting the ads. It’s no different from resizing a browser window, or modifying a Web page’s appearance using one of the hundreds of other browser plugins that are available. It’s completely under the control of the user, and doesn’t touch anything on the server side. The fact that Axel Springer is making such a technically illiterate argument shows that it is now desperately scraping the barrel of legal arguments. Maybe it’s time for the German publisher to accept that users have the right to format the Web pages they view in any way they like — and that adblocking software is perfectly legal.
Last week, Mike provided a virtuoso excoriation of the European publishers’ shameless demand to be given even more copyright control over tiny snippets of news stories as part of the awful EU copyright directive. As that post pointed out, the publishers’ “mythbuster” did nothing of the sort, but it did indicate a growing panic among the industry as more critical attention is brought to bear on the ridiculous “snippet tax” — Article 11 of the proposed new EU copyright law — which has already failedtwice elsewhere. The German site Über Medien — “About Media” — offers another glimpse of publishers trying desperately to justify the unjustifiable (original in German). Actually, it’s one publisher in particular: Mathias Döpfner. He’s the CEO of the German company Axel Springer, one of the world’s largest publishers, although even his company is unlikely to benefit much from the snippet tax. Speaking on Austrian television, Döpfner made a rather remarkable claim:
It’s about the question of whether the intellectual good that is produced is a protected good or not. At the moment it is a good that is not protected in the digital world. Anyone can take an article, a video, a journalistic element that a publisher has prepared, copy it, put it in another context and even market it successfully.
Yes, the boss of one of the biggest and most successful publishers in the world is claiming that digital material is not protected by copyright, and that anyone can take and use it, which is why new laws are needed. Since he was talking about the EU’s Article 11, he also seems to be conflating using snippets with taking an entire article. To underline his point, Döpfner offered a homely comparison:
If I can go to the grocery store and just grab a pound of butter or a carton of milk without paying for it, why should anyone come and pay for it, and why would anyone else offer butter or milk?
But that’s not what Google is doing when it uses snippets. It’s more like it is taking a picture of the pound of butter, and then showing people the photo along with the address of the grocery store when they search for “butter” using Google’s search engine. Google is not stealing anything, just sending business to the store. It’s the same with displaying snippets that link to the original article. The Über Medien post rightly goes on to note that publishers don’t really have a problem with Google showing snippets and sending them traffic. But their sense of entitlement is so great they want to force the US company to pay for the privilege of sending them traffic. Or, to put it in terms of D?pfner’s forced analogy:
Publishers do not want Google to stop stealing butter and milk in their supermarkets. The publishers want to oblige Google to steal bread and milk from them and pay for it.
The fact that the head of German’s biggest publisher resorts to the old “you wouldn’t steal a car/pound of butter/carton of milk” rhetoric shows just how vanishingly thin the argument in favor of a snippet tax really is. It’s time for the EU politicians to recognize this, and remove it from the proposed copyright directive, along with Article 13’s even-more pernicious upload filter. EU citizens can use the new SaveYourInternet site to contact their representatives. Ahead of the important EU vote on the proposed law early next week, now would be a really good time to do that.
