Elon Musk Has Got Content Moderation All Figured Out: Delete The “Wrong” And “Bad” Content, But Leave The Rest (And Reinstate Trump)

Content Moderation

from the i-can't-believe-we're-all-doing-this dept

Look, we’ve tried to explain over and over again that Elon Musk doesn’t understand free speech or content moderation. He also seems entirely clueless about the incredible lengths that Twitter has gone to in order to actually protect free speech online (including fighting in court over it) and what it has done to deal with the impossible complexities of running an online platform. Every time he opens his mouth on the subject, he seems to make things worse, or further demonstrate his ridiculous, embarrassing levels of ignorance on the topic — such as endorsing the EU’s approach to platform regulation (something that Twitter has been fighting back against, because of its negative impact on speech).

The latest is that Musk continued his trend of speaking nonsense at a Financial Times conference, where he said that he would reinstate Donald Trump’s account.

“I do think it was not correct to ban Donald Trump, I think that was a mistake, because it alienated a large part of the country, and did not ultimately result in Donald Trump not having a voice,” Mr. Musk said at a Financial Times conference on Tuesday.

If you’re into that sort of punishment, you can watch the whole thing here. I just warn you that it’s an hour and twenty minutes of your life that you will never, ever get back.

Now, there are plenty of principled reasons to argue for why Trump should be reinstated to the platform. And there are plenty of principled reasons to argue for why he should be kept off of it. When the ban first happened, I wrote a long piece analyzing the decision, noting that it’s not, in any way, an easy call, but there are reasons you can argue both sides.

Later in the talk, Musk basically clarifies his point, repeating something he’s said before, that he basically does not like permanent “bans” but does support other forms of moderation, including deleting content or making it “invisible.” And, again, there is an argument for that as well — in fact, Jack Dorsey has said he has agreed, though in slightly different framing, noting that getting to the point that the company felt Trump needed to be banned represented a failure for Twitter, and reiterating why Twitter should be an implementation of a social media protocol, rather than a centralized hub. And, also, similarly, Facebook’s own Oversight Board questioned the permanent nature of the ban on that platform, and Facebook responded by saying that the ban would be reviewed every two years (though, I’m realizing that two years passed earlier this year, and I don’t recall any commentary on that…).

So, again, there is some level of reasoning behind moving away from bans. But, Musk’s position again appears to be not based on any principled argument, or understanding of what actually happened, but just random thoughts firing through his head. He continues to (falsely) claim that Twitter’s moderation is biased in favor of “leftists” (evidence points in the other direction, but details, details…). The fact that he says the banning of Trump “alienated a large part of the country” leaves out the fact that Trump himself alienated a large part of the country, and returning him to Twitter would do the same. But, oddly, Musk doesn’t seem to care about alienating those people.

His other point, that it “did not ultimately result in Donald Trump not having a voice” is just… weird? No one ever argued that Twitter removed Trump to stop him from “having a voice.” Indeed, part of the argument many of us made that one reason why it’s not so bad that he was removed was because he still had the ability to speak out in lots of other places including (these days) on his own Twitter-wannabe. All the removal was doing was saying that Twitter did not want him directly using their site to cause more havoc.

Even more ridiculous though, is that Musk then went on to talk about, hell, let’s call it, his content moderation “philosophy.”

“If there are tweets that are wrong and bad, those should be either deleted or made invisible, and a suspension, a temporary suspension is appropriate but not a permanent ban.”

Wrong and bad, huh. I am reminded of what Facebook’s earliest content moderators said was the initial policy at that company, when it was all much smaller: “does this make us feel icky?” But they learned, almost immediately that such a setup does not scale, not even slightly.

It’s also just inherently and obviously ridiculous. “Wrong” and “bad” are just fundamentally subjective terms. Again, this is a point that we’ve raised before: lots of social media companies start off with this kind of simplistic view of content moderation. They say they want free speech to be the touchstone, and that they will only have to push back on the most extreme cases. But what they (and Elon) don’t seem to grasp is that there are way more challenging cases than you can predict, and there is no easy standard that you can set up for “wrong” or “bad.”

Then, as you’re (in theory) trying to scale, you realize that you need to set policies with standards for what constitutes “wrong” and “bad.” It can’t be left up to Elon to decide every one. And from there you quickly learn that for every policy you write, you’ll quickly find way more “edge” cases than you can imagine. And, on top of that, you’ll find that if you have ten different people comparing the edge case to the policy, you may get ten different answers of how to apply it.

And, again, this is actually one thing that Twitter has spent years thinking about: how do you operationalize a set of policies and a set of enforcements to make them as consistent and as reasonable as possible. And you can’t just simply look at it say “bad stuff goes, good stuff stays” because that’s just nonsense and not any way to set up an actual policy.

If he wants to bring back Trump, that’s certainly his call. Trump has claimed he wouldn’t come back, even if Elon lets him back on, but then again, he’s technically still suing Twitter to force the company to let him back on (the judge just dismissed the case, but has left it open for Trump to file an amended complaint, so the case is not yet officially closed).

But Musk is being ridiculously unfair to pretend (as a bunch of Trumpist propagandists have for years) that the decision to ban Trump was because of some “leftist ideology” and an attempt to silence his voice. It was the culmination of a very long series of events, including multiple other types of interventions, including trying to fact check his false claims and limit the spread of them (things you’d think that Musk would appreciate), but which failed to stop Trump from seeking to use the platform to egg on violence that was part of an effort to overturn the results of a free and fair election.

That Musk keeps insisting that democratic values are so important (saying elsewhere that he’d want to follow speech laws, since they represent the will of the people), you’d think he’d recognize that efforts to overturn an election might, well, raise some questions. It did for the people inside Twitter, who thought deeply about it and argued back and forth how to handle this. And that discussion and debate was a lot more serious and deserves more credit than Musk gives it.

At this point, though, it’s clear that Musk’s view of the world is simplistic and child-like. And that seems unlikely to change. Given how we’ve seen this play out on other websites, I don’t imagine it will be good for long term business, but it’s not my billions on the line.

Filed Under: bans, content moderation, content policy, donald trump, elon musk
Companies: twitter

Josh Hawley Introduces Laughably Stupid Copyright Term Reduction Bill

Copyright

from the it's-a-curse dept

Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.

Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.

So… now, we’re actually seeing a bill to reduce copyright terms, coming as promised from Senator Josh Hawley, one of the most performative, least principled elected officials around. Hawley has now officially released his Copyright Clause Restoration Act and made it abundantly clear that he’s doing so to punish Disney for that company’s political speech.

Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).

So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”

(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.

(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.

So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.

Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).

So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.

Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”

That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.

The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:

(2) RETROACTIVE EFFECT.—

(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—

(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.

Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.

But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.

It will not surprise you to learn, of course, that Disney is in the 5121 classification and its theme park division, Walt Disney Parks and Resorts US is listed in NAICS 71.

Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.

I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.

So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.

There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.

Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.

There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.

(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—

(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.

And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.

Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.

Filed Under: bill of attainder, copyright, copyright terms, josh hawley
Companies: amazon, apple, disney, nbcuniversal, netflix

Why Are People Still Blaming Facebook For Australia’s Terrible News Linking Tax Law?

Overhype

from the i-remain-confused dept

We’ve talked a fair bit about Australia’s ridiculous “News Bargaining Code,” which is literally nothing more than a tax on Facebook and Google for sending traffic to media organizations. Again, the law requires Facebook and Google (and just Facebook and Google) to pay media organizations for sending them web traffic. This is, of course, backwards to any sensible set up. Why should anyone have to pay for sending traffic to a website? Here, the answer appears to be, because Rupert Murdoch wants to get paid and is jealous of the success of Facebook and Google. The best summary of the whole thing comes from the Australian satirical video maker, The Juice Media:

The law does seem widely popular in Australia, mainly because the very same media that is getting paid because of this law spent years demonizing Facebook and Google, so many people think the law is good, even though it’s really just transferring money from some giant companies to other giant companies, and making sure that smaller media organizations get screwed in the process.

Anyway, as the law went into effect, Facebook broke out the nuclear option and blocked news sharing in Australia. This move made a lot of people angry, but I still don’t understand why. You don’t create a tax on things you want more of, you create a tax on things you want less of. If you tell a social media company that you are going to make them pay for sending any traffic to news stories, why is it surprising or bad that the company then says “ok, no more links to news stories?” If you don’t like that result, then maybe don’t pass such ridiculous laws?

Eventually, after a slight modification to the law, Facebook caved in anyway, re-enabled links to news stories, and started negotiating to pay money to a small number of big media organizations in Australia.

Anyway, the Wall Street Journal recently had an article revealing some internal Facebook documents from a whistleblower with the fairly provocative title: “Facebook Deliberately Caused Havoc in Australia to Influence New Law, Whistleblowers Say” and I went to read it, expecting some terrible smoking gun, about just how badly Facebook management screwed up — something the company has an uncanny knack for doing. And… I couldn’t really find anything.

Basically, the documents seem to show that when Facebook put in place that Australian news block, it ended up over-blocking sites that shouldn’t have been blocked, including government and charity sites. And, yes, that sounds bad, but again, the way the law was written was that if Facebook was allowing links to any news, it faced potentially massive fees it would be forced to pay up. So, when that’s how the law is structured, the only reasonable response is to over-block. It’s what any lawyer would recommend. It’s what I would recommend too.

The law is written in such a way that if you make a mistake and let news through you’re going to get into trouble, and as we’ve seen from other intermediary liability laws from around the globe, the perfectly natural response to any of this is to over-block. If you don’t, you face massive liability.

So I kept reading the WSJ piece, and waiting for the big reveal of what terrible thing that Facebook had done… and it appears to basically be… exactly what you’d expect. The company rushed to put this in place and over-blocked because they didn’t want to let anything get through that would cause them problems under the law.

Two hours later, the product manager for the team wrote in the internal logs: “Hey everyone—the [proposed Australian law] we are responding to is extremely broad, so guidance from the policy and legal team has been to be overinclusive and refine as we get more information.”

She then outlined the team’s plan to undo the improper blocking, including starting with “the most obvious cases” like government and healthcare pages, and the need to go to outside legal counsel for “more nuanced” cases.

And… yeah? I mean, of course you would want to be overly inclusive. If you weren’t then the whole reason for blocking news links goes away. Again, it seems like the real issue here is the law, and how broadly and stupidly it was written.

The WSJ piece does raise a point that Facebook already had a list of news orgs that it didn’t use, and at first that seemed like perhaps that was significant… until the very next paragraph when it becomes obvious why that list wasn’t used: because it clearly was not comprehensive, and the law applied to a much broader list of news sites:

Instead of using Facebook’s long-established database of existing news publishers, called News Page Index, the newly assembled team developed a crude algorithmic news classifier that ensured more than just news would be caught in the net, according to documents and the people familiar with the matter. “If 60% of [sic] more of a domain’s content shared on Facebook is classified as news, then the entire domain will be considered a news domain,” stated one internal document. The algorithm didn’t distinguish between pages of news producers and pages that shared news.

The Facebook documents in the complaints don’t explain why it didn’t use its News Page Index. A person familiar with the matter said that since news publishers had to opt in to the index, it wouldn’t have necessarily included every publisher.

Okay, so… no real scandal there. The article does make a big deal of the fact that Facebook blocked government websites, and even implies repeatedly that Facebook deliberately did so to put pressure on the government to change its policy… but then 55 (55!) paragraphs into the article, the reporters admit that the internal documents they saw shows that the government website blocking was a legitimate mistake.

On the first day of the action, Facebook executives discussed that the platform had blocked about 17,000 pages as news that shouldn’t have been, of which 2,400 were “high priority” pages such as government agencies and nonprofits that they were working to unblock first, according to emails viewed by the Journal.

I mean, maybe I’m just a small country blogger, but if you’re going to spend all this time hinting at a smoking gun and how the company “deliberately caused havoc… to influence [the] new law” then maybe you shouldn’t wait until paragraph 55 to say, well, actually, the thing we spent many previous paragraphs talking about being really awful, was a legitimate accident that the company spotted almost immediately and moved to fix?

Look, there are many, many reasons why Facebook is a terrible company doing terrible things, and there’s little reason to trust the company to do the right thing when the wrong thing always seems to be the company’s top choice. But this whole article seems bizarrely empty of any actual support of its central premise.

Yes, Facebook broadly blocked news links for a little while until the law was slightly adjusted, but under the law, letting any links to news through would have triggered a provision that effectively would have enabled the government to simply order Facebook to pay huge sums to media companies. It seems like a perfectly logical and reasonable step to respond to such a move by blocking news links, and even more so to block broadly to avoid accidentally tripping the wire to trigger the law. And, yes, the overly broad blocking did include some government websites, but as the article itself admits if you make it all the way down to paragraph 55, the company immediately recognized those issues and set to work on fixing them, though it wanted to proceed cautiously to avoid accidentally triggering the law.

It’s easy to hate on Facebook — again, the company does a lot of terrible things — but this seems like yet another case where the journalists really badly wanted to tell a story of something evil, but the actual documents didn’t support the story… so they just wrote it anyway.

Filed Under: australia, blocking links, google tax, link tax, news bargaining code
Companies: facebook, meta

What Free Speech? Elon Musk Endorses EU’s Highly Censorial Approach To Content Moderation; Which Twitter Has Spent Years Fighting

Free Speech

from the this-is-not-pro-free-speech dept

It’s becoming quite clear that Elon Musk’s approach to dealing with complex issues is not to actually understand the complex realities behind them, but to simply say what he thinks an audience wants to hear, and perhaps relatedly, to simply accept the last thing that someone presented to him as the official state of things. The latest in the long line of bizarrely contradictory and nonsensical breadcrumbs that Musk is leaving regarding his planned approach to handling content moderation on Twitter includes a full warm embrace of the EU’s highly censorial Digital Services Act, as tweeted by Thierry Breton, the European Commissioner for the Internal Market.

The video is pretty short, but here’s a rough transcript:

Breton: So we’re in Austin, together with Elon Musk. Thank you, Elon, for welcoming me.

Musk: Thank you. You’re most welcome.

Breton: Of course, we discussed many issues, and I was happy to be able to explain to you the DSA, a new regulation in Europe, and I think that now, you understand very well. It fits pretty well with what you think we should do on the platform?

Musk: I think it’s exactly aligned with my thinking. I think I very much agree… It’s been a great discussion. I agree with everything you said, really. I think we’re very much of the same mind and anything that my companies can do that would be beneficial to Europe, we want to do that.

Musk responded to Breton’s tweet by saying that “we are very much on the same page.”

Of course, the actual DSA setup seems extremely different than what Musk has said he wants regarding a platform that allows most speech. As we’ve discussed, the DSA, as currently construed would make something of a mess for speech online, and would put much more onerous regulations in place regarding how websites can moderate, and how much content they need to pull down.

I mean, just a few weeks ago, Breton was effectively threatening Musk regarding the takeover of Twitter, which is part of what precipitated this meeting.

Earlier in the day, Musk had once again (after falsely claiming that Twitter has a leftwing bias) tweeted that his preference was to “hew close to the laws of countries in which Twitter operates.” Further saying “If the citizens want something banned, then pass a law to do so, otherwise it should be allowed.”

This is all nonsense on multiple levels. First of all, many, many countries are not actually democracies. So, laws are not always the will of the citizens. Secondly, in the US, we have things like the 1st Amendment that are actually designed so that Congress cannot pass a law that bans speech. But, most importantly, the laws of a country make a terrible guide for content moderation, because they’re really trying to serve two very different purposes.

But, even more to the point, this again demonstrates how little Musk really understands not just about free speech, but also about how Twitter aggressively fights for free speech.

Over the past few years, Twitter has actually been one of the leading companies speaking out about the very serious potential problems with the EU’s approach to speech in the DSA. It’s been a key player in explaining how the rules that the EU is looking to put in place could be damaging for free speech and also how the rules should be changed to avoid attacking free speech. And in walks Musk, with apparently little to no understanding of the details or the nuances, and just endorses the entire approach.

And, let’s not even bother getting into the fact that much of the meeting was actually to discuss other issues regarding Tesla and the EU, and how Musk notes that his companies (plural) want to do what’s best for Europe. People have raised serious questions about the business needs of Tesla in countries like China and India may run into issues with how Twitter is moderated, and now Musk is effectively announcing that if it’s good for Tesla in Europe, he’ll happily agree to much greater speech suppression on the site.

If you actually support free speech, it’s pretty damn maddening, because the last thing we need right now is a company like Twitter endorsing the current DSA approach, which would take a sledge hammer to certain speech rights. But, according to Musk, it’s all good, because it’s what the law says.

Filed Under: dsa, elon musk, free speech, thierry breton
Companies: twitter

Will People Actually Be Happier If Elon Musk Is Selling Their Data Instead Of Pushing Ads?

Business Models

from the seems-doubtful dept

We’re still pretty much in the dark about Elon Musk’s real plans for Twitter. He had talked a little about changing how Twitter’s subscription product worked, and then the only other idea that had leaked was a weird one about trying to charge media organizations to quote or embed tweets. However, late last week, the New York Times published a story with some of the details of what Musk put in a presentation that was sent around to a variety of investors, and somehow convinced some pretty high profile investors to cough up another $7 billion for his Twitter purchase.

And, let’s be clear: there is no way that anyone — especially Elon — thinks that this plan is real or achievable. Musk, somewhat famously, hates business plans, saying that “these things are always wrong, so I just didn’t bother with business plans after that.” And one of the new investors in the deal, Binance CEO CZ made it clear he was investing in Musk, not because of any business plan:

“We, from our friends, heard that [Musk] was looking for third party investors, and are we interested?,” he recounted to the British newspaper. “We immediately said that we are. He didn’t have a plan for Twitter. There isn’t, like, a business plan. So it wasn’t that type of discussion.”

Must be nice to just have people throw billions of dollars at you despite having no business plan, more or less admitting that you’re doing this on a lark, and despite repeatedly showing a severe lack of understanding of Twitter’s current operations.

But, it seems he felt he needed to put at least something together, because, while he told Chris Anderson at TED that he’s not buying Twitter for the economics of it or to make money, at least some of the people he’s convincing to invest don’t want to lose all their money. And, the structure of the highly leveraged deal actually means that Twitter is going to need significant cash flow to service the debt.

Of course, he demonstrated his stated disdain for business models by putting in some details in his plan that make it clear that he thinks this is all a joke. Most notably this included insisting that he expects Twitter’s subscription service, Twitter Blue, to have (one of his two favorite childish numbers) 69 million users by 2025.

But, since we don’t have much else to go on, we do need to at least consider that some of what he writes in the plan, might actually be what he’s thinking. And that’s why this stood out:

Quintuple revenue to $26.4 billion by 2028.

In his pitch deck, Mr. Musk claimed he would increase Twitter’s annual revenue to $26.4 billion by 2028, up from $5 billion last year.

Cut Twitter’s reliance on advertising to less than 50 percent of revenue.

Under Mr. Musk, advertising would fall to 45 percent of total revenue, down from around 90 percent in 2020. In 2028, advertising would generate $12 billion in revenue and subscriptions nearly $10 billion, according to the document. Other revenue would come from businesses such as data licensing.

As others have noted, Musk actually needs the cashflow from advertising to pay for this deal, but also, Musk has long said that he hates advertising. And, many have pointed out that his plans for less moderation (should they ever actually be implemented) would likely drive away some advertisers.

Either way, it’s no surprise that he’d look to decrease the company’s dependency on advertising, and saying so publicly is the kind of thing that Musk would do, since he appears to absolutely crave adulation from the kind of perpetually online dudes who similarly hate advertising (this is not a knock on those people, because I’m one of them myself). And, lets be clear, I am all for any internet company learning how to decrease their dependency on advertising. I’ve spent plenty of time trying to do that myself. So, I think it could be interesting if he actually finds a better business model for Twitter that isn’t so advertising heavy (though, based on the numbers in that presentation, he’d still be growing the ads business in absolute terms, but would be making it a much smaller percentage of overall revenue.)

But, that leaves the big question of what those other revenue streams would actually look like. And here’s where the plan (as much as you can take it seriously) goes kinda weird:

Other revenue would come from businesses such as data licensing.

And here’s where you shout: “WHAT other data?” Twitter really doesn’t have that much other data about users (it has some, but nowhere near as extensively as Facebook or Google). In theory, Twitter could get a lot more aggressive about collecting more data, and tracking everyone’s whereabouts across the web, but people are already pretty damn creeped out by the way that Facebook does that, and it’s already resulted in some pretty large fines for that company. Jumping into the data brokering business like that seems ripe for setting up the company to also face some huge fines, when (as noted) the company needs cash flow coming in, not flowing into government treasuries in the form of paying off fines for failing to protect data.

And then there’s the creepiness factor. Whatever people think of Twitter’s failings around content moderation, people certainly don’t think of it in the same “kinda uncomfortable, but I’ll mostly live with it to see birthdays and wedding photos” feeling that many people feel towards Facebook.

So, sure, in theory Musk could build up Twitter’s data selling business, but with that comes lots and lots of challenges, including an increasingly ridiculous patchwork of laws that seem only likely to get worse — and the almost certain result of pissing off lots of users who, sure, hate ads, but the type of person who hates online ads tends to hate online tracking and companies selling off their data even more. (And that’s not even getting into the fact that Facebook really isn’t even selling data, it’s merely better targeting ads, meaning that the selling of data for Facebook is really just increasing the ads business, not a separate line of business.)

Things would get a lot more complicated for Twitter if it’s actually “selling data.”

And, again, all of this is fine. I have no doubt that Musk can think up some new ideas that maybe will work, and maybe will align incentives better overall, and make this whole deal possible. But, so far, it seems that all of his ideas don’t seem particularly well thought out to even begin to grapple with the second order effects of those decisions.

And, hey, if that works for getting people like CZ, Marc Andreessen, and Larry Ellison to throw billions of dollars your way, awesome, wonderful. That’s great. But, it at least feels a little bizarre that anyone should pretend that Musk has any real idea of what he’s getting into here. Currently, he’s an emperor with no clothes, and we should call that out; not pretend that we can see some magnificent threads because of a devotion to the belief that if Musk is standing there naked, it must be because he’s actually wearing some space-aged invisible nano clothes.

Filed Under: advertising, business models, business plan, data, elon musk, selling data
Companies: twitter

Judge Is Not At All Impressed By Trump’s Lawsuit Against Twitter; Dismisses It Easily

Legal Issues

from the judge-to-trump:-this-is-not-how-any-of-this-works dept

As you probably recall, former President Donald Trump sued various social media companies for kicking him off their platforms, claiming (absolutely ridiculously) that private companies deplatforming the President of the United States violated his 1st Amendment rights, and claiming that Section 230 was unconstitutional. As we noted at the time, this is not how any of this works. The lawsuits have not gone very well. While they were filed in Florida, they were quickly transferred to the proper venue in California, and now Judge James Donato has tossed out the lawsuit against Twitter, and done so easily — though he does allow Trump to try again with an amended complaint (something that will almost certainly be coming).

Judge Donato wastes little time in pointing out the problems with the claim that Twitter moderation violates anyone’s 1st Amendment rights:

Plaintiffs’ main claim is that defendants have “censor[ed]” plaintiffs’ Twitter accounts in violation of their right to free speech under the First Amendment to the United States Constitution… Plaintiffs are not starting from a position of strength. Twitter is a private company, and “the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.”

You don’t say?

There’s this whole concept of the State Action Doctrine that Trump would need to overcome to make this a 1st Amendment issue, and guess what Trump’s lawyers did not do? Yeah, you guessed it. Because you’re smarter than a Trump lawyer.

Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter was in effect operating as the government under the “state-action doctrine.” This doctrine provides that, in some situations, “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.”… This is not an easy claim to make, for good reasons. Private entities are presumed to act as such, and maintaining the line “between the private sphere and the public sphere, with all its attendant constitutional obligations,” is a matter of great importance, as “[o]ne great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law.” Edmonson, 500 U.S. at 619. “As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (citation omitted). “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.”

Plaintiffs say that the question of whether they have a First Amendment claim on the basis of the state action doctrine is a factual matter “ill-suited to a Rule 12(b)(6) motion.” …. Not so. It is certainly true that the ultimate determination of state action is a “necessarily fact-bound inquiry,” Lugar, 457 U.S. at 939, but that does not relieve plaintiffs of their obligation under Rule 8 and Rule 12(b)(6) to provide in the complaint enough facts to plausibly allege a claim against Twitter on the basis of state action. See, e.g., Heineke v. Santa Clara Univ., 965 F.3d 1009, 1015 n.5 (9th Cir. 2020) (“Heineke’s contention that it is inappropriate to dismiss his § 1983 constitutional claims at the motion to dismiss stage, is unpersuasive. We have accepted his allegations as true. Because he has failed to plead any allegations sufficient to support his argument that SCU acted under color of state law, however, his § 1983 claims must fail as a matter of law.”). To conclude otherwise, as plaintiffs urge, would fly in the face of the pleading requirements squarely stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Here we need to break in, because those two cases, Twombly and Iqbal, are now considered pretty well accepted and fairly standard cases regarding what you need to plead in order to actually plead a claim that can survive a motion to dismiss. The two cases together, nicknamed Twiqbal, stand for the idea that you can’t just randomly plead nonsense and promise to bring actual claims down the road. You have to claim actual factual claims that, if true, would be legitimate. Twombly applied this to antitrust law, and then Iqbal applied the same standard broadly across all federal cases.

Since Iqbal in 2009 this has all been widely understood for anyone practicing in federal courts. Except, apparently, Trump’s lawyers. They tried to argue that Twiqbal only applied to antitrust. The judge dismissed that, well, dismissively, in a footnote:

Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy actions. Dkt. No. 145 at 6 n.7. Twombly and Iqbal expressed no such limitation, and their standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every federal district and circuit court. A scant minute of online research makes this abundantly clear. See, e.g., Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 n.1 (9th Cir. 2022) (labor and employment case); Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (Bivens claims)

Ouch.

Anyway, back to the substance. Is this a state action? Well, duh, no.

To start, the amended complaint does not plausibly show that plaintiffs’ ostensible First Amendment injury was caused by “a rule of conduct imposed by the government.” id. at 835 (cleaned up); see also Mathis v. Pacific Gas and Elec. Co., 891 F.2d 1429, 1432 (9th Cir. 1989) (“no state, or federal, action unless” a private entity’s decision is “made on the basis of some rule of decision for which the State is responsible.”) (quotations and citation omitted). The amended complaint merely offers a grab-bag of allegations to the effect that some Democratic members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter because such “content and views” were “contrary to those legislators’ preferred points of view.” See, e.g., AC ¶¶ 53, 55, 60, 61. But the comments of a handful of elected officials are a far cry from a “rule of decision for which the State is responsible.” Legislators are perfectly free to express opinions without being deemed the official voice of “the State.” Government in our republic of elected representatives would be impossible otherwise. It is also not plausible to conclude that Twitter or any other listener could discern a clear state rule in such remarks, or even determine what a legislator’s “preferred views” might be.

The weakness of the state action theory in the amended complaint is further demonstrated by plaintiffs’ own explanation of why their accounts were closed. Twitter is said to have closed Mr. Trump’s account because of “the risk of further incitement of violence” and “threats to physical safety.” Id. ¶¶ 114-15. Twitter closed plaintiff Cuadros’s account “due to a post about vaccines,” id. ¶ 124, and Dr. Wolf’s account for “vaccine misinformation,” id. ¶ 162. Plaintiff Barboza’s account was closed “after retweeting President Trump and other conservatives on January 6, 2021,” id. ¶ 137; plaintiff Latella after he “post[ed] positive messages about Republican candidates and President Trump,” id. ¶ 142; and plaintiff Root for “messages he posted related to COVID-19 and the 2020 election results,” id. ¶ 152.

If anything, these explanations indicate that Twitter acted in response to factors specific to each account, and not pursuant to a state rule of decision. These circumstances are not at all comparable to those in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), as plaintiffs urge. In that case, which is discussed infra in more detail, a state commission was empowered to compel a private book distributor from selling or supplying certain books. The amended complaint does not allege anything like this type of state dictate to Twitter.

Also, the ruling notes that just because some legislators were whining about social media moderation choices, that does not magically turn those websites into state actors:

Paragraph 55 is said to offer “examples of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230 immunity for Defendants and other social media platforms if Twitter did not censor views and content with which these Members of Congress disagreed.” … The actual quotes do not live up to that billing. The statements attributed to “Bruce Reed, Biden’s Top Tech Advisor,” and Michelle Obama are of no moment because Reed and Obama were not legislators…. Other statements in Paragraph 55 pertain only to Facebook, and not Twitter. … (Senator Markey’s question and Mark Zuckerberg’s answer regarding Facebook’s algorithms and policies; Rep. Adam Schiff’s Tweet that “Facebook must ban” Trump). Then-Senator Kamala Harris is quoted three times for calling for “Trump’s Twitter account [to be] suspended” and calling on Dorsey to “do something about this Tweet” from Trump, but conspicuously missing is any threatening remark directed to Twitter….

Also, randomly complaining about Section 230 does not change things either:

Five statements are nothing more than general comments about Section 230 (e.g., “We can and should have a conversation about Section 230”) untethered to any substance that might have conveyed any threat or punishment tied to any specific action by Twitter

The judge then distinguishes the various cases where state action was found, noting that in all of those, the connection to the state, and the clear threats, are much more obvious.

These cases, which are the centerpieces of plaintiffs’ state action argument, are strikingly different from the allegations in the amended complaint. In each of the cases, a concrete and specific government action, or threatened action, was identified. Here, plaintiffs offer only ambiguous and open-ended statements to the effect that “we may legislate” something unfavorable to Twitter or the social media sector. This is a world away from: (1) a state commission sending local police officers for drop-in visits and threatening prosecution by the state attorney general (Bantam Books); (2) a city mayor and police superintendent threatening law enforcement action to crack down on sit-in demonstrations (Lombard); (3) a deputy county attorney threatening prosecution against a private company under a specific law (Carlin); and (4) a federal administrative commission threatening the suspension of licenses or formal rulemaking if its specified elements for an anti-drug program were not followed voluntarily (Mathis).

Then there’s the part about Section 230. That takes all of two paragraphs to dismiss and only one actually matters (the first one just discusses the nature of the claim about 230 supposedly being unconstitutional):

To establish an injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). These facts are entirely absent from the amended complaint with respect to Section 230. Plaintiffs offer only the vague and speculative allegation that “[u]pon information and belief, defendants would not have deplatformed the plaintiff or similarly situated putative class members but for the immunity purportedly offered by Section 230(c).”… Why this might be plausible is left unsaid. The Court declines to accept such speculative and conclusory allegations as grounds for a declaratory judgment claim.

Florida’s Deceptive and Unfair Trade Practices claim also doesn’t do well at all. Twitter’s terms say they can remove you for any reason at all, so there’s nothing deceptive going on here:

A good argument can be made that plaintiffs did not plausibly allege deceptive conduct by Twitter for purposes of either the FDUTPA or the UCL. The TOS expressly states that Twitter may suspend or terminate an account “at any time for any or no reason.” … It also states that Twitter may remove or refuse to distribute any content…. There is nothing cagey or misleading about these provisions, and plaintiffs’ suggestion that Twitter may have applied them inconsistently,…, or at the government’s behest, does not change that. The TOS gave Twitter contractual permission to act as it saw fit with respect to any account or content for any or no reason, which makes its ostensible motives irrelevant for a deceptive practices claim.

Trump also tried to use Florida’s already-declared unconstitutional social media law, and, well, you know how that went. It also fails because only one plaintiff was actually a Florida resident, and the Twitter actions all took place before that law would have come into effect anyway (and, oh yeah, the court blocked it from coming into effect, because it’s unconstitutional):

An initial problem for plaintiffs is that only one named plaintiff (Dominick Latella) was a Florida resident with any active Twitter account at the time the statute took effect on July 1, 2021, … and so he is the only plaintiff who might conceivably have a SSMCA claim. See Fla. Stat. § 501.2041(1)(h) (“user” is “a person who resides or is domiciled in [Florida] and who has an account on a social media platform.”). The amended complaint alleges that all of the other plaintiffs were domiciled outside of Florida, or had their Twitter accounts closed prior to July 1, 2021.

Another problem is that plaintiffs say they are challenging only conduct that occurred after the SSMCA effective date…. But the amended complaint focuses on actions affecting plaintiffs’ accounts prior to July 1, 2021. … Consequently, it is unclear what plaintiffs allege to be the potential application of the statute to their case.

There is also a major concern about the enforceability of the SSMCA. Florida government officials were enjoined from enforcing the SSMCA on June 30, 2021, the day before the law was to take effect, in a well-reasoned decision issued by the Northern District of Florida. NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082 (N.D. Fla. 2021), appeal pending sub nom, NetChoice LLC v. Attorney Gen., State of Fla., No. 21-12355 (11th Cir.). The court concluded that the statute violated the First Amendment and was preempted by 47 U.S.C. § 230; it also expressed strong concerns that the statute was impermissibly vague. The Court declines plaintiffs’ invitation to disregard this decision, particularly while an appeal is pending, and dismisses the SSMCA claim without prejudice.

Still, the judge allows Trump and the other plaintiffs a chance to amend the complaint, but makes it pretty clear he doesn’t find it likely that they’ll get past any of these hurdles.

All in all this is a nice clean win, exactly as expected. I look forward to the trolls in our comments who were so sure the original case was a winner rationalizing away this ruling, and how the amended complaint or the appeal will magically make this case a winner rather than the obviously frivolous lawsuit it has been from the second it was filed.

Filed Under: 1st amendment, california, content moderation, donald trump, florida, free speech, social media, state action doctrine, state actors, unfair and deceptive
Companies: twitter

Missouri And Louisiana Sue Biden Administration Because Twitter Blocked Hunter Biden Link Before Biden Was President

Stupidity

from the that's-not-how-any-of-this-works dept

This one is just absolutely bizarre. The Attorneys General of Missouri and Louisiana are now suing President Joe Biden and a whole bunch of his administration, including press secretary Jen Psaki, Dr. Anthony Fauci, DHS boss Alejandro Mayorkas, and newly appointed Disinfo czar Nina Jankowicz, in a nearly incomprehensible complaint that the Biden administration forced social media sites to take down information, mostly before it was in office. Also, apparently Section 230 is both bad and the Biden support for repealing it violates the 1st Amendment. Or something. It really does not make much sense at all.

Putting the complaint in the best possible light, they’re trying to make a jawboning complaint: that government intimidation is forcing certain content moderation decisions. But even then, this complaint is ridiculously poorly written and laughable.

The complaint kicks off with a weird quote of George Washington on the importance of free speech and then jumps to quoting Supreme Court Justice Clarence Thomas’ extraordinarily non-binding random riffing about Section 230. But the crux of the complaint — again, I must remind you that it is against many parts of the Biden administration — is that they somehow colluded with private social media companies to censor speech, even though they weren’t even the government at that time.

A private entity violates the First Amendment “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” Biden v. Knight First Amendment Institute at Columbia Univ… (Thomas, J., concurring). “The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.”

And, yes, it’s true that the government cannot coerce private actors to do things like suppressing speech, but unless there’s a pretty clear threat associated with it, the government does still retain its right to speak out generally on what it likes and does not like. Now, it’s true that the line can get blurry here, but contrary to lots of complaints, the administration merely whining about disinformation on social media does not, in any way, count. We already discussed how the Press Secretary saying they don’t like disinformation on social media comes nowhere close to being an actual threat.

We also discussed how an angry anti-masker suing the administration because his posts got taken off Twitter wasn’t going to work, because Twitter remains a private company. But this lawsuit isn’t from some random anti-masker. It’s from the states of Louisiana and Missouri! States shouldn’t be filing such preposterous lawsuits, but here we are in the year 2022.

Anyway, as you dig into the details of this lawsuit, it gets progressively worse. At least with the anti-masker dude he was pointing to specific content he felt was banned because of the White House. What content are real life Attorneys General Jeff Landry and Eric Schmitt suing over?

The Hunter Biden laptop story in the NY Post.

Perhaps most notoriously, social-media platforms aggressively censored an October 14, 2020 New York Post exposé about the contents of the laptop of (then-Candidate Biden’s son) Hunter Biden, which had been abandoned in a Delaware repair shop and contained compromising photos and email communications about corrupt foreign business deals.

So, so much to unpack here. Let’s start with the big one though: the Biden administration did not exist at the time of the Hunter Biden laptop story. So there is no way that the Biden administration could have violated the 1st Amendment into pressuring social media not to carry that story.

And that’s not even getting into how silly the whole claim about the Biden laptop was. We’ve explained over and over and over again why that’s not a story of political censorship. And if you keep claiming it is, then you have to explain why the exact same policy used against a website for revealing internal police chat messages wasn’t equally political (and let’s not even get into the claim that the laptop revealed “corrupt” foreign business deals).

Either way, it takes an incredible lack of shame to argue that Twitter (a private company) using its existing “hacked materials” policy to block a single link to a single story, is a 1st Amendment violation, because the Biden administration, which did not exist for another three months, was pressuring the company to block it.

And it gets worse.

The second example used in the lawsuit is social media companies limiting discussions of the whole “lab leak” theory… in early 2020. Also, efforts by social media companies to pull down disinformation about mail-in ballots. All of these things happened under the Trump administration, and not because of government pressure, but because the companies didn’t want to have their platforms abused by malicious actors.

The lawsuit also has a weird, somewhat contradictory position on Section 230. First, it blasts Section 230, saying (falsely) that it “subsidized, protected, and fostered the creation of speech-censorship policies in a small, concentrated group of social-media firms.” This is not just false, it’s laughably false, and any lawyer who claims this is true, shouldn’t still be a lawyer.

The 1st Amendment is what allows any website to moderate as it sees fit. It’s called editorial discretion. And, again, it applies to any website that is hosting 3rd party speech, and not just a “small, concentrated group of social-media firms.” I mean, I guess it’s not that surprising that a lawsuit that claims that Twitter following its own moderation rules 3 months before the Biden administration exists means the Biden administration violated the 1st Amendment, was written by lawyers who don’t realize the 1st Amendment is actually what protects a website’s rights to moderate.

But then, after blasting Section 230, and insisting that it’s been interpreted wrongly… the lawsuit suddenly does spins around, and claims that… the Biden administration’s many (incredibly stupid) claims to want to repeal Section 230 is the mechanism by which it was threatening social media companies into doing its bidding. So, according to this lawsuit, Section 230 is an evil, unconstitutional, problematic law, but any attempt to reform or repeal it is… itself a 1st Amendment violation. How’s that work?

Finally, the lawsuit calls out the ridiculous “Disinformation Governance Board” that Homeland Security is setting up. We’ve already talked about how dumb the rollout of this board is, and the administration has since fumbled multiple chances to explain what the Board is and what it’s going to do. I’d be fine if they just canceled the whole stupid plan. But, considering it doesn’t even exist, and may be doing something totally benign — like studying how disinformation flows — it seems a bit premature to be suing it as a 1st Amendment violation.

The entire lawsuit reads more like something we read from trolls in our comments, not a lawsuit filed by two actual, honest-to-goodness state Attorneys General. But, kudos, Jeff Landry and Eric Schmitt, you’ve truly outdone yourselves in stupid, performative, nonsense lawsuits.

Filed Under: 1st amendment, alejandro mayorkas, anthony fauci, eric schmitt, jawboning, jeff landry, jen psaki, joe biden, louisiana, missouri, nina jankowicz, section 230

Disney Is Still Trying To Avoid Paying Its Writers

Copyright

from the hollywood-accounting dept

There are all sorts of silly and made up reasons to be mad at Disney, but those shouldn’t take away from the many legitimate ways in which Disney is a terrible, awful company. For years, it was one of the most aggressive in pushing for ever expanded copyrights, and was one of the chief lobbyists pushing to extend copyright in all sorts of directions. To be honest, over the last two decades, some of the other big Hollywood/media companies have gotten even more aggressive than Disney, but Disney has certainly remained aggressively awful.

And, of course, any time someone pushes back on this aspect of Disney colonizing culture, they pull out the copyright landlord’s favorite justification: “we’re doing it for the artists.” Over and over again, we see the big TV and movie studios, the giant record labels, and the biggest publishers claiming they need to fight for ever expanded copyrights to help the actual creators — all while doing absolutely everything they possibly can to avoid paying anyone anything at all.

Even for those of us deeply aware of the nature of “Hollywood Accounting,” the story that came out late in 2020 was still stunning. The Science Fiction & Fantasy Writers of America (SFWA) kicked off a campaign on behalf of famed author Alan Dean Foster — who wrote many of the early Star Wars books. Disney had claimed that when it bought the Hollywood studio 20th Century Fox, that it only bought the assets and none of the liabilities, and therefore, Disney’s lawyers claimed, it could keep on publishing the books Foster wrote without paying any royalties.

Now, that’s quite a trick. Indeed, if you could do that, well, then it would seem to create quite a lucrative business opportunity. Sign up a bunch of creatives to publishing deals. Hell, promise them extremely high royalty rates (you’re not going to end up paying them, so who cares?), and then after the contracts are in, sell off the “assets” but not the “liabilities” of your business to a different entity, allowing them to keep publishing and you never actually have to pay any royalties. Genius! Pure evil. But, genius.

But it seems especially rich that Disney, which has spent so many decades insisting its out there fighting the good fight to support “creative artists” to be doing this. Recently, the SFWA published an update on the campaign, noting that while Disney did agree to pay some high profile authors, it is still refusing to do it for less well known authors:

You’ve paid some authors what you owed them. But there are other creators that you don’t want to talk about. And, because you did not take our advice, new creators are coming forward who are owed money, too.

You still refuse to recognize your obligations to lesser-known authors who wrote media tie-in works for Marvel, for Star Wars, for Aliens, for Predator, for Buffy: TVS, and more, universes that you’ve bought the rights to, along with the obligations to those creators. You’ve re-published their works but have failed to do even the bare necessities of contract and talent management. You’ve failed to pay these writers royalties they’re legally owed and have not given them the courtesy of royalty statements and reprint notices.

Cory Doctorow has written up an interesting post on this as well, noting how it lays bare Disney’s blatant hypocrisy:

This is shameful, and it points to the hollowness of Disney’s long-running holy war to get us all to “respect copyright.” Disney respects copyright only to the extent that it serves as a charter for corporate abuse of creators, or a means by which Disney can reach beyond its corporate walls and dictate the conduct of its competitors or other industries. When it comes to copyright as a tool for securing the rightful wages of creative workers, Disney exhibits contempt far beyond the taunts of The Pirate Bay or the insouciance of bootleg DVD hawkers in a night market.

Copyright’s power to create worker power has always been oversold, mostly by giant entertainment companies who correctly understood that the more copyright creators got, the more copyright they could expropriate through non-negotiable contracts. Copyright isn’t useless to creators, but it is also no substitute for fair contracting laws, labor organizing, and antitrust enforcement.

His article also looks at a few others ways that Disney is trying to use copyright to abuse, rather than help artists.

Of course, I was curious what organizations, that pretend to “represent the creators,” had to say about all of this, so I went to the website of CreativeFuture. Their website insists that they’re there to help “creative people.” They even have this amazingly ridiculous banner (that they apparently registered a trademark over, because why not?)

So, here’s a story where the industry is literally refusing to pay creative people what they’re contractually owed, for their creations. Surely, CreativeFuture has spoken up about this attack on the livelihoods of creators, right? I mean, the organization even set up a whole hashtag campaign, #StandCreative, to pretend it is “standing with” creators. So, surely, they’ve come out in support of Alan Dean Foster and the SFWA and all of the creators Disney is not paying, right? Right?!?

Huh. Guess not.

Instead, the top article on their website… is attacking EFF, the organization Cory Doctorow works for. Doctorow is out there advocating for artists to actually get paid, while CreativeFuture is attacking his work and pretending it actually supports creatives.

I wonder why CreativeFuture isn’t supporting these creative people? Hmm. I mean, I’m sure that CreativeFuture’s board of directors would be right there at the front of the line demanding that Disney pay the writers it owes, right? I mean, look, let’s just grab a randomly selected CreativeFuture board member and see…

So who is that? Oh, just the senior executive vice president, secretary and general counsel to the… oh…. The Walt Disney Company. Ah, well. That explains it.

Well, I’m sure some of CreativeFuture’s other board members would note his conflict of interest and stand up for the actual creators, right? Hmm. There’s Leah Weil, the General Counsel of Sony Pictures, so that’s not going to work. Oh, and the General Counsel of Warner Bros., John Rogovin, (well until just recently). Well, I’m sure this other person, Kimberly Harris will stand up for… oh, oh I see. General Counsel for NBCUniversal, you say?

Yes, yes, I’m beginning to see why CreativeFuture apparently wants nothing to do with this actual campaign to support actual creators. It might interfere with the interests of the Hollywood studios that set up CreativeFuture as a pure front group in the first place.

Filed Under: alan dean foster, copyright, pay the writer, paying creatives, supporting creators
Companies: creativefuture, disney, sfwa

Medical Device Makers Sue Library Of Congress For Allowing People To Fix Their Own Medical Devices

Copyright

from the so-much-nonsense dept

For many years we’ve discussed the sheer ridiculousness of the “triennial review” process of Section 1201 of the DMCA. If you’re lucky, and don’t spend that much time deep in the weeds of semi-obscure copyright law, Section 1201 of the DMCA is the “anti-circumvention” part of the law, that was initially designed to outlaw breaking digital rights management (DRM) tools. Of course, 1201 was written broadly, saying that basically any attempt to “circumvent a technological measure” (even just talking about ways to circumvent a technological measure) would itself be considered copyright infringement even if the underlying purpose for which you were circumventing the technological measure had nothing whatsoever to do with copyright.

This was a bizarrely structured law for so many reasons, and even the drafters of it at the time realized that this would likely lead to all sorts of perfectly reasonable and normal activity being declared “infringing” of copyrights. Indeed, lots of companies almost immediately moved to take advantage of this in order to block people from using “unauthorized” ink cartridges in printers, or unauthorized garage door openers, among other things.

So, the drafters of the DMCA added in this ridiculously weird safety valve: every three years, people could apply to the Librarian of Congress to “exempt” certain classes of items from the law for a three year period. The process itself is ridiculous. People need to apply for the exemption, then there’s a public comment period, followed by recommendations from the director of the Copyright Office, before the Librarian of Congress comes down from the mountain and blesses certain types of circumvention as non-infringing for the next three years.

No sane system would ever do things this way. A reasonable legislature would realize that if you have to apply for exemptions every three years, perhaps the underlying law itself is problematic. But, no, every three years we go through this ridiculous song and dance. Sometimes it leads to truly wacky outcomes, like the time, a decade ago, when the Librarian of Congress refused to renew the phone unlocking exemption, forcing Congress to grandstand about how they should fix things (something that never actually happened).

Anyway… last year was the latest three year cycle, and it’s gotten to the point that it’s barely even worth reporting on the results, which the Librarian of Congress adopted last fall. One of them was an expansion of an earlier exemption (from six years prior) exempting the circumvention of technological protection measures (TPMs) on medical devices in order to access the data on those devices. For the 2021 round, petitioners sought to expand that exemption somewhat, getting rid of the part of the original exemption that limited it to “wholly or partially implanted” devices, arguing that it should apply to any type of medical device.

The Copyright Office recommended allowing this broader exemption and the Librarian of Congress agreed:

For the reasons detailed in the Register’s Recommendation, the Register concluded that accessing medical data outputs likely qualifies as a fair use and that expanding the exemption to include non-implanted medical devices and non-passive monitoring would not alter the fair use analysis. Additionally, the Register concluded that proponents set forth sufficient evidence that the ‘‘wholly or partially implanted’’ language and the passive monitoring limitation are causing, or are likely to cause, adverse effects on these noninfringing uses. The Register also recommended expanding the exemption to permit circumvention ‘‘by or on behalf of a patient.’’ After consultation with the U.S. Food and Drug Administration, the Register recommended removing the language requiring compliance with other laws, and replacing it with a statement that eligibility for the exemption does not preclude liability from other applicable laws.

Basically, in the midst of a pandemic, where locked down medical devices had represented a real problem, the Copyright Office and the Librarian of Congress reasonably decided that both users of medical devices, and their medical care professionals, ought to be able to circumvent various technological protection measures in order to access their own data.

All of this should be relatively uncontroversial. But… that’s not how any of this works. Earlier this year, some medical device company trade associations decided to sue the Librarian of Congress over this exemption. They’re using the standard administrative law argument that the exemption was “arbitrary and capricious.” The complaint has a lot of overwrought language:

The Exemption is manifestly unlawful. By issuing a rule that enables unregulated, for-profit service providers to piggyback off the creative efforts and intellectual property of medical device manufacturers, it not only thwarts the purpose of the Copyright Act, but also puts patient safety, device integrity, and device cybersecurity at risk. What is more, the process by which the Exemption was adopted was infected with major procedural errors, including a failure to address many of the significant legal concerns raised by plaintiffs and other opponents.

In the course of the rulemaking at issue here, moreover, the Library of Congress was acting as an executive agency and is therefore subject to the strictures of, and judicial review under, the Administrative Procedure Act (APA). Because the Exemption is not in accordance with law and was adopted without observance of required procedures, it should be set aside. Alternatively, if the Library of Congress did not assume the character of an executive agency within the meaning of the APA, the Exemption violates separation-of-power principles twice over. Either way, it should be vacated.

Then, before the government was able to respond to the lawsuit, the medical device makers moved for summary judgment. A big part of their argument is that because this exemption might will allow third party companies to service medical devices (at a cheaper rate than the manufacturers themselves) that it serves a purpose unrelated to copyright and thus is not allowed as an exemption:

But the exemption is for a manifestly infringing use. It was granted at the behest—and solely for the commercial benefit—of two so-called independent service operators, or ISOs, which are unregulated third-party service providers who freeride on the creative labors of device manufacturers. And the Librarian readily admitted the true reason for her decision: Allowing ISO circumvention would reduce the cost of machine servicing contracts and thus serve a separate executive-branch policy. But the DMCA does not grant the Librarian free-ranging policymaking authority untethered to copyright law. In approving the exemption, moreover, the Library failed to address numerous substantial comments that called into question the underlying fair-use analysis. The exemption is thus unlawful many times over: It is contrary to the statutory text, it is arbitrary and capricious, and it was promulgated without observance of procedure required by law

So, to some extent, I find this absolutely hilarious. Because the reason medical device manufacturers lock down these devices with TPMs and then rely on the DMCA to block competitive service providers is also wholly unrelated to copyright law. So, they are actually the ones abusing copyright law to lock out competition — and then when they’re effectively called on it by the Librarian of Congress, they whine that the Librarian of Congress can’t use the triennial review process to exempt their abuse of copyright law, because… it goes beyond the intention of copyright law!

The government has responded, asking for a chance to actually file a motion to dismiss before it has to deal with the summary judgment demand and noting the somewhat bizarre rush by the medical device manufacturers for summary judgment when they waited many months before filing the lawsuit in the first place.

Either way, this really appears to be little more than an extremely cynical move by the device manufacturers. Hopefully the court sees through it, but should it succeed, I imagine we’ll see many other similar lawsuits filed on behalf of other industries where exemptions were granted, potentially taking us back to an even worse world, in which companies can abuse the 1201 anti-circumvention rules to block out all sorts of competition.

Filed Under: carla hayden, competition, copyright, copyright office, dmca 1201, librarian of congress, library of congress, medical devices, triennial review
Companies: advamed, medical imaging technology alliance, mita

Who Needs SOPA: Judge Orders Every US ISP To Block Entire Websites Accused Of Enabling Piracy

Copyright

from the that's-not-how-any-of-this-works dept

Almost exactly a decade ago, a few months after the US Congress rejected the site blocking setup of the SOPA copyright bill, which would enable copyright holders to force ISPs to block access entirely to websites deemed as being dedicated to “piracy,” we wrote a post about how it wasn’t even clear SOPA was needed when courts were willing to issue such blocking orders already. That was in a case around counterfeiting, where Louis Vuitton sought, and obtained, an order from a judge that demanded that domain registrars and ICANN effectively wipe certain website domains off the internet entirely.

Fast forward almost exactly a decade and TorrentFreak points us to a somewhat similar series of orders that demand that every ISP in the US block access entirely to three websites accused of infringement by a series of movie, TV, sports, and news content providers in Israel. The three orders are all embedded below, though they’re all basically the same — but they order non-party ISPs to block access to three domains that are accused of showing infringing streams: israel-tv.com, israel.tv, and sdarot.tv.

For all three of the websites, no defendants showed up in court (not too surprising, given that the cases were filed in the US). Without a defendant showing up, the court ruled for the plaintiffs in a default judgment — which is pretty typical. However, what is atypical, is that the judge then basically set the 1st Amendment on fire, and basically ordered a ton of non-parties to do things to stop enabling any access to these websites. It first issues a permanent injunction for anyone operating or working with those websites, but then issues an order for EVERY single ISP in the US to block access to these websites.

IT IS FURTHER ORDERED that all ISPs (including without limitation those set forth in Exhibit B hereto) and any other ISPs providing services in the United States shall block access to the Website at any domain address known today (including but not limited to those set forth in Exhibit A hereto) or to be used in the future by the Defendants (“Newly-Detected Websites”) by any technological means available on the ISPs’ systems. The domain addresses and any NewlyDetected Websites shall be channeled in such a way that users will be unable to connect and/or use the Website, and will be diverted by the ISPs’ DNS servers to a landing page operated and controlled by Plaintiffs (the “Landing Page”) which can be reached as follows:

Domain – zira-usa-11026.org
IP Address: 206.41.119.50 (Dedicated)

The Landing Page will include substantially the following information:

On April 26, 2022, in the case of United King Distributors, et al. v. Does 1-10, d/b/a Sdarot.tv (S.D.N.Y., Case No. 1:21-cv-11026 (KPF) (RWL)), the U.S. District Court for the Southern District of New York issued an Order to block all access to this website/ service due to copyright infringement

It’s unclear who created this particular landing page, but it does not exist, and at least it doesn’t include the silly badges with eagles on it.

The blocking order shows a very long list of ISPs, covering nine pages. For unclear reasons, the list shows not just the names of the ISPs, but also the estimated population covered, the number of states they cover, and their max speeds. As far as I can tell, the list appears to come from BroadbandNow’s “Internet Providers in the United States of America” list. This is the first page that comes up if you Google “list of US ISPs” and it also displays the exact same data sets in the exact same order. The list doesn’t match exactly, though, so it appears to be a subset of the larger list — though the court order says that it should be considered to apply to any US ISP.

And Judge Katherine Polk Failla doesn’t stop there. After ordering every ISP to block these websites, she also orders all third party service providers to cease doing business with these three websites. This includes an incredibly long list of possible service providers (notably a list that is even more in-depth than would have been required under SOPA — which, again, Congress rejected):

IT IS FURTHER ORDERED, that third parties providing services used in connection with Defendants’ operations — including, without limitation, ISPs, web hosting providers, CDN service providers, DNS service providers, VPN service providers, domain name purchasing service, domain names privacy service, back-end service providers, affiliate program providers, web designers, shippers, search-based online advertising services (such as through-paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), any banks, savings and loan associations, merchant account providers, payment processors and providers, credit card associations, or other financial institutions, including without limitation, PayPal, and any other service provider which has provided services or in the future provides services to Defendants and/or the infringing Website (including without limitation those set forth in the list annexed and made Exhibit C annexed hereto) (each, a “Third Party Service Provider”) — having knowledge of this Order by service, actual notice or otherwise be and are hereby permanently enjoined from providing services to the Website (through any of the domain names set forth in Exhibit A hereto or at any Newly-Detected Websites) or to any Defendant in conjunction with any of the acts set forth in subparagraphs (A)(1) to (A)(6) above;

And, as if that was not enough, she also orders domain registrars effectively kill those domains as well and hand them over to the plaintiffs:

1. That all domain names associated with the infringing Website, including without limitation those set forth in Exhibit A hereto, as well as any Newly-Detected Websites, be transferred to Plaintiffs’ ownership and control; and
2. That in accordance with this Court’s inherent equitable powers and its power to coerce compliance with its lawful orders, and due to Defendants’ on-going operation of their counterfeiting activities, in the event Plaintiffs identifies any Newly-Detected Website registered or operated by any Defendant and used in conjunction with the streaming any of Plaintiffs’ Works, including such Websites utilizing domain names containing any of Plaintiffs’ service mark or marks confusingly similar thereto, Plaintiffs shall have the ongoing authority to serve this Order on the domain name registries and/or the individual registrars holding and/or listing one or more of such the domain names associated with the Newly-Detected Websites; and
3. That the domain name registries and/or the individual registrars holding and/or listing one or more of the domain names associated with the Newly-Detected Websites, within seven (7) days of service of a copy of this Order, shall temporarily disable any domain names associated with the Newly-Detected Websites, make them inactive, and channel them in such a way that users will be unable to connect and/or use the Website, and will be diverted to the Landing Page (as defined in Paragraph B, above); and
4. That after thirty (30) business days following the service of this Order, the registries and/or the individual registrars shall provide Plaintiffs with all contact information for the Newly-Detected Websites; shall transfer any domain names associated with the Newly-Detected Websites to the ownership and control of Plaintiffs, through the registrar of Plaintiffs’ choosing, unless the Defendant has filed with the Court and served upon Plaintiffs’ counsel a request that such Newly-Detected Websites be exempted from this Order or unless Plaintiffs requests that such domain names associated with the NewlyDetected Websites be released rather than transferred;

Again, this is way, way beyond what even SOPA would have allowed. But Congress didn’t do it — and for good reason. This ruling has some really significant 1st Amendment issues. Ordering the complete takedown of a website like this is the equivalent of shutting down a magazine — ordering that the landlord evict the publisher, that the printing presses be destroyed, that the postal service refuse to send copies of the magazine, that the local waste management company refuse to pick up the garbage, etc. etc. An order like that would obviously have tremendous 1st Amendment problems as an attack on speech, even if you recognize that some of the content was infringing.

Of course, given that the websites chose not to show up in US court, it seems unlikely that they will challenge the order. It is possible that some ISPs might push back on it, not because they want to support piracy, but because of the extraordinarily problematic general precedent of allowing a judge to order such an extreme internet kill order. Allowing these kinds of orders to survive creates tremendous instability for the internet, and hopefully some ISPs will push back.

Filed Under: blocking orders, cdn, copyright, dns, israel, new york, registrars, site blocking, sopa, website blocking
Companies: dbs satellite services, hot communication, screen il, united king film distribution