Streaming video still provides some meaningful advantages to traditional cable: it’s generally cheaper (assuming you don’t sign up for every service under the sun); customer satisfaction ratings are generally higher; and users have more power to pick and choose and cancel services at a whim.
But the party simply isn’t going to last.
Thanks to industry consolidation and saturated market growth, the streaming industry has started behaving much like the traditional cable giants they once disrupted. As with most industries suffering from “enshittification,” that generally means steadily worse service at higher prices to appease Wall Street’s demand for improved quarterly returns at any cost (even long term company health).
As a result, Netflix has started acting like password sharing, something it advocated for for years, is a dire cardinal sin. Amazon now thinks would be fun to increase the number of ads it runs, charging Amazon Prime users even more money to avoid them. Consumers are paying more for streaming than ever as layoffs abound, streaming catalogs shrink, and the underlying product quality gets worse.
“Disney and Warner Bros. Discovery recently announced that they’ll set aside their competitive impulses and team up, Avengers-style, to offer a super-bundle of their streaming services: Disney+, Hulu, and Max.”
Disney recently spent $8.6 billion to buy Comcast’s share in Hulu, so it’s not really “setting aside their competitive impulses” as much as it is just consolidation. Hunting and pecking through numerous streaming competitors to find who currently owns the rights to your favorite show certainly can be annoying. But the industry’s solution is generally going to be, over time, mergers and consolidation:
“But if bundles are back, why did we ever give up cable in the first place? That question stares me in the face every time I find myself in a hotel, enamored with the nostalgia of flipping from late-night talk shows to Family Feud to The Real Housewives of Salt Lake City to whatever Adam Sandler comedy is playing on Comedy Central.”
At this point, most of the same executives who ruined cable TV are now working in streaming. And they’re being driven by the same underlying motivation that ultimately destroyed cable TV: Wall Street’s insatiable need for impossible quarterly growth at any cost. It will likely do the same thing to streaming as it has done to countless other U.S. publicly-traded sectors (air travel, banking, insurance, telecom, etc.)
As the streaming industry consolidates and competition among streaming services wanes, you’ll likely see petty stuff like making it harder to actively cancel your streaming services (see: AOL, the Wall Street Journal’s online subscription, or cable TV). You’ll see weird new restrictions. You’ll see layoffs. And you’ll most certainly see a lot of completely and very broken mergers (see: AT&T Time Warner Discovery).
You’ll also, like in airlines and in telecom, see weird efforts to funnel you into higher and higher price points if you want the user experience you used to have.
I suspect most customers will still generally find streaming a better, more flexible value proposition than cable for the next few years. But all the financial incentives point in fairly twisted directions, driving bad decisions made in the pursuit of the impossibility of unlimited growth at preposterous scale.
Which will, in turn, annoy consumers, making streaming vulnerable to disruption by either resurgent piracy (something that’s already happening), or other services. And the cycle repeats.
For all the pissing and moaning I did during the acquisition of Activision Blizzard by Microsoft — principally over the latter’s routine desire to talk about non-exclusivity in its games only to make them exclusive — Sony sure does know how to shit the bed when it comes to cross-platform titles and how to treat its customers well. On the more general side, the company has an unfortunate habit of disappearing all kinds of content from its published games and other media on a whim. And while Sony is happy to gobble up console exclusives itself — making the whining over Microsoft’s actions fall at least partially flat — the company also has found itself backtracking on occasion when it takes some dumb anti-customer action that it then has to walk back.
Which brings us to Helldivers 2. If you aren’t at least familiar with that game title, then you clearly have very little interest in gaming generally. The game launched with some issues, certainly, but was an absolute hit from the get go, including for PC gaming. Then, in the last few days, the development studio announced that the game would be patched to require that those playing the game on the PC would, for some reason, need to sign up for a PlayStation Network account or the game would be unplayable.
Last week, Arrowhead Studios announced that an upcoming update to its hit co-op shooter Helldivers 2 would require existing PC players on Steam to make a PlayStation Network account to continue playing. If they didn’t, they’d lose access to their Helldivers accounts, and that news did not land well. The move was bad for a litany of reasons, not least of which was the fact that Steam is supported in more countries than PSN, meaning that many players in some regions of the world would have no viable way to play the game they’d already owned on PC for months. As Helldivers 2 began getting delisted from several countries over the weekend, its community took to the offensive and review-bombed both the game and its ten-year-old predecessor.
Now PlayStation has predictably reversed course on its decision, and Helldivers 2 will no longer receive the aforementioned update. On its face, this appears like a wonderful development for the community, which won a decisive victory over PlayStation. However, this error also spells out that for all its success, PlayStation simply does not know what it’s doing when it comes to cross-platform titles, and will either continue to stumble upwards or accidentally burn itself time and time again at the repeated cost of its developers.
That last bit is really, really important. While there was plenty of ire saved for Sony from customers in this instance, far more of it was directed at Arrowhead Studios. To be clear, the account requirement was always part of the plan for this game and it was documented as such. But, that it was planned this whole time neither means it was ever a good idea, it certainly doesn’t mean it was a good idea given how the eventual rollout of the game went. It’s no exaggeration to say that people have been playing this game on their PCs for months and months. Why in the world you would suddenly press this PSN account requirement on them, the earliest adopters of the game, is beyond me.
And the reaction from the public is both telling and part of this overall problem. Sure, it’s good that Sony eventually decided it didn’t want to be pelted with digital rocks any longer and caved to the review bombing pressure it suffered. But it’s also true that nobody wants to show just how easy it is to weaponize the reviews for games for some vocal minority, or even majority, to get its way in all cases.
And again, this hurts the smaller Arrowhead Studios much, much more than it does a goliath like Sony. With the gaming giant so willing to risk the reputations of its studio partners, this really should cause potential future partners to wonder seriously whether such a partnership is a good idea.
To the outsider who doesn’t know about any of the drama of this weekend and decided to check out Helldivers 2 on Steam on a whim, its reviews likely made it seem like a bad purchasing option. Arrowhead community managers were taking hits in forums and getting chastised for doing a poor job of communicating the terms of PlayStation’s sudden policy change. Arrowhead’s CEO spent the weekend apologizing for initially disabling the PSN requirement to help support a bigger player audience, and he was the internet’s whipping boy for it. Not only did PlayStation force an otherwise beloved studio into this position, but its constant kowtowing to tactics such as review-bombing continues to legitimize bad actors.
Snatching defeat from the jaws of victory is never what you want to be known for, but that is starting to be Sony’s reputation when it comes to cross-platform games and its consumer practices in general. Perhaps the company could actually listen to its customers, rather than trying to dictate to them?
Walled Culture has been warning about the financialization and securitization of music for two years now. Those obscure but important developments mean that the owners of copyrights are increasingly detached from the creative production process. They regard music as just another asset, like gold, petroleum or property, to be exploited to the maximum. A Guest Essay in the New York Times points out one of the many bad consequences of this trend:
Does that song on your phone or on the radio or in the movie theater sound familiar? Private equity — the industry responsible for bankrupting companies, slashing jobs and raising the mortality rates at the nursing homes it acquires — is making money by gobbling up the rights to old hits and pumping them back into our present. The result is a markedly blander music scene, as financiers cannibalize the past at the expense of the future and make it even harder for us to build those new artists whose contributions will enrich our entire culture.
As well as impoverishing our culture, the financialization and securitization of music is making life even harder for the musicians it depends on:
In the 1990s, as the musician and indie label founder Jenny Toomey wrote recently in Fast Company, a band could sell 10,000 copies of an album and bring in about $50,000 in revenue. To earn the same amount in 2024, the band’s whole album would need to rack up a million streams — roughly enough to put each song among Spotify’s top 1 percent of tracks. The music industry’s revenues recently hit a new high, with major labels raking in record earnings, while the streaming platforms’ models mean that the fractions of pennies that trickle through to artists are skewed toward megastars.
Part of the problem is the extremely low rates paid by streaming services. But the larger issue is the power imbalance within all the industries based on copyright. The people who actually create books, music, films and the rest are forced to accept bad deals with the distribution companies. Walled Culture the book (free ebook versions) details the painfully low income the vast majority of artists derive from their creativity, and how most are forced to take side jobs to survive. This daily struggle is so widespread that it is no longer remarked upon. It is one of the copyright world’s greatest successes that the public and many creators now regard this state of affairs as a sad but unavoidable fact of life. It isn’t.
The New York Times opinion piece points out that there are signs private equity is already moving on to its next market/victim, having made its killing in the music industry. But one thing is for sure. New ways of financing today’s exploited artists are needed, and not ones cooked up by Wall Street. Until musicians and creators in general take back control of their works, rather than acquiescing in the hugely unfair deal that is copyright, it will always be someone else who makes most of the money from their unique gifts.
There’s no shortage of prognostication about the future of generative AI, including plenty of predictions that it won’t actually be around forever for various reasons. A lot of these takes are a little too speculative or just not very interesting, but one that stands out comes from law professor and returning podcast guest Eric Goldman, who joins us this week to discuss his recent lecture and subsequent paper arguing that the regulatory environment won’t allow generative AI to survive.
You may recall last month’s hilarious story of lawyer Mike Dunford’s response to a vexatious angry demand letter from IMG, representing the LAPD Foundation, claiming that a t-shirt with the following “Fuck the LAPD” logo violated its IP rights:
The response was as simple as it was direct: Lol, no.
As we highlighted in our post, the threat letter was ridiculously vague about what “IP” the LA Police Department Foundation believed it owned. It’s not difficult to figure out why: because nothing in the image above could possibly constitute either trademarks or copyright belonging to the LAPDF. Still, we had a few paragraphs explaining how if they claimed copyright, it would be wrong and another few paragraphs on why they’d be wrong about trademark too.
It turns out that in addition to the “LOL, no” letter, Dunford also sent a more detailed response to someone higher up at IMG, the rights company that sent the original, basically asking why his client, Cola Corporation (makers of fine anti-police wear), shouldn’t seek attorneys’ fees from IMG for their vexatious takedown.
If you’re wondering why the two separate letters were sent, it’s almost certainly because the first short one was the response. This second, much longer (but still hilarious) one was to basically say “y’all fucked up so bad, that you probably need to pay us for the time you wasted.”
The letter is a rollicking good time, as posted by Cola Corporation on Bluesky:
The second letter that @questauthority.bsky.social sent to LAPD reps on my behalf. Even more savage than “LOL, no.” I’ve highlighted my fave parts. What are yours?
I’ve extracted the letter and PDF’d it, which you can see embedded below.
It’s a hoot, and shows that Dunford is good for more than simply “lol, no” responses.
I write to give you and the thin-skinned bullies you represent an opportunity to provide whatever reason you can think of why my client should not seek to recover attorneys’ fees in this matter under 17 U.S.C. § 512(f) — and, really, to ask you to explain why any of you ever thought any of this was in any way a good idea.
Tell us how you really feel, Mike.
As you know, and I know, and every competent intellectual property lawyer knows, the ‘C’ in DMCA stands for “Copyright.” Unsurprisingly, a valid DMCA takedown therefore requires a valid, good-faith claim of copyright infringement. But you obviously do not have any such claim — or anything that is in the same time zone as such a claim. Neither the LAPDF nor the Los Angeles Police Department itself owns a copyright to the acronym “LAPD.” Nobody does, and nobody can. It is black letter law that individual words and short phrases are not subject to copyright protection. We both know that. Students in Intro to IP classes know that. But as a professional courtesy and on the off chance you somehow forgot, the footnote call at the end of this sentence is a relevant string cite.
I’m going to just post an image of the two footnotes on this page, because, for some reason, the OCR isn’t working great on the PDF copy I made, so I’m retyping all the quotes in this article, and there’s no way I’m retyping all these citations. But, yeah, you get the idea:
If you cannot see it, it’s a long string of recent cases that all highlight the point stated above, and then noting (“wow, that’s a lot of cases saying the same thing from just the last six months, right?). For the sake of brevity, we’re not providing you with a citation from every federal district court to prove the point. We’re pretty sure we could.”
Now, I wasn’t entirely sure that DMCA 512(f) would apply, because looking over the original letter that was sent to Cola Corporation that we posted with the original article, it does not directly purport to be a DMCA takedown. I recognize that “DMCA” has become shorthand for any sort of request for a takedown or any kind of copyright claim, but to be a true DMCA 512 notice for the purpose of demanding a takedown it requires some specific things.
However, as Dunford’s more verbose letter indicates, the guy who sent it, a lawyer named Andrew Schmidt, gave the document the title: “DMCA Takedown Notice – LAPD – The Cola Corporation.” And then emailed it with the subject line “DMCA Takedown notice.” It may be fine (well, not fine, but understandable) for a lay person to use the shorthand of calling something a DMCA notice. But, not a lawyer.
It seems clear that Schmidt was either lazy… or (more likely) was hoping that because “DMCA takedowns” are so widely known as a concept, that simply calling his document as such would lead an unsophisticated individual at Cola Corporation to get scared and fold.
Dunford further makes it clear that the format of the letter “mirrors the requirements” of an official DMCA takedown notice, to effectively argue that even if it wasn’t officially a “DMCA takedown notice,” it was substantially close enough that Cola Corporation might actually have a legitimate 512(f) claim.
Now, if you’ve followed Techdirt for any length of time, you probably know that DMCA 512(f) claims for filing a misleading DMCA takedown claim are nearly impossible to win for a variety of (mostly stupid) reasons. But, damn, if this weren’t a case where it’s pretty clear that, not only was IMG misrepresenting stuff, but that they knew full well they were misrepresenting stuff. And that means that it’s a situation where a 512(f) claim might actually be legit.
17 U.S.C § 512(f) provides a cause of action to those who are harmed by a knowing material misrepresentation that material was infringing. The representation that “Fuck the LAPD” infringes on the LAPD’s copyrights is clearly false. As noted above, your client owns no copyright relevant to the alleged infringement, because the phrase “LAPD” is not remotely subject to copyright protection. As it is literally impossible to infringe on a copyright that cannot exist, the “DMCA takedown” misrepresented both the ownership and infringement of the copyright. And it did so materially — it affected my client’s response to the purported takedown by leading it to pay me to deal with your blatant bullying.
And, yes, the one area where 512(f) claims most often fall down was whether or not the sender really “knew” it was misrepresenting things. In the Lenz case, famously, the court said as long as the sender subjectively believed the notice was legit, that’s all that’s necessary. But here…
Your company does this type of work professionally. Schmidt is an attorney, senior counsel to your company. Either he knew that there was no conceivable copyright claim here, much less a good faith one, or he is staggeringly incompetent. I would honestly prefer not to believe that IMG knowingly sent a false DMCA takedown to aid and abet a police organization in bullying my client — who was, at the time you sent the document containing the knowing misrepresentations, an unrepresented party — for exercising its First Amendment rights. Yet I simply cannot believe IMG hires attorneys so terrible at their job that IMG was unaware that its client did not have a copyright claim when it sent a DMCA takedown based, in part, on allegations of copyright infringement.
Ouch.
And while the DMCA 512(f) claim is specific to the copyright arguments (the C part, remember), the letter also makes it clear that IMG can’t get away with claiming there was at least good faith in the trademark part. Because there clearly is not.
I could explain why such a claim would fail by methodically working through the eight Sleekcraft factors, but, really, all that would do is waste all of our time. Let’s not pretend: it is inconceivable that a reasonable person, no matter how unobservant or hurried, would be confused into thinking that the Los Angeles Police Department or the Los Angeles Police Department Foundation are the source of “Fuck the LAPD” merchandise.
There’s a fun footnote 7 wedged in that paragraph for law nerds, but I’ll leave that for you to check out on your own.
The next part is just good old-fashioned fun:
That only becomes more obvious when the First Amendment implications of this deplorable incident are examined. The LAPD is to state the obvious a police department. They are an arm of the state. Criticism of the state is protected speech even when it is profane and disrespectful; “speech cannot be restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). That, too, is black-letter law, taught in every law school. The First Amendment acts to ensure that “individual expressions of ideas remain free from governmentally imposed sanctions,” Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988), it does so when that speech is critical of the government, and it even does so when that speech insults those in power. That’s not just basic law. It’s part of what makes America America.
I’m sure your response to that is going to be something along the lines of “but we don’t actually represent the LAPD, we’re acting on behalf of the LAPD Foundation, which really is different from the LAPD and just wants to protect its economic interests in selling licensed stuff that says “LAPD” on it. But we all know that’s not what this was about. There’s no likelihood of confusion, no infringement of copyright, no conceivable reason to think that people who like the LAPD will stop buying LAPD stuff if they can instead buy a shirt that says “Fuck the LAPD”. This isn’t about the IP. It’s about the LAPD and the LAPD Foundation being thin-skinned bullies who resent the existence of “Fuck the LAPD” merchandise.
Too damn bad.
The LAPD is not expected to like the existence of “Fuck the LAPD” merchandise. But their sole remedy is to not do things that result in people wanting to buy and wear “Fuck the LAPD” merchandise. I understand that would be a difficult task. But I promise you that it would still be easier than trying to get a court to rule that “Fuck the LAPD” shirts violate the LAPDF’s intellectual property rights.
To be honest, when we wrote our original post on Techdirt about all this, I had wanted to dig in deeper on all of these issues but felt like maybe I was going too hard in response to an issue that really only required “lol, no.”
But I do appreciate that Dunford also was willing to go deep and point out the obvious absurdities here. I eagerly await finding out if IMG ever replied…
Not that any of that mattered to any of these suburban authoritarians. All they knew is they had cameras capable of surveilling unwanted “intruders,” even if these were just lost drivers, people passing through their “exclusive” neighborhoods on the way to their own less-exclusive neighborhoods, or just kind of “brown.”
Since the rich and the (predominately) white consider law enforcement to be little more than a customer service department, pitching to HOAs meant drawing in cops — the kind of vertical integration all tech companies dream of.
Vertical integration explains a lot of what’s reported here by Thomas Brewster for Forbes. If you’re rich, have a bunch of your own (privately-purchased) cameras, why wouldn’t you just invite cops to shoulder surf your camera feeds? And if they’re your cameras, you can claim it’s a private venture, even if it’s cops doing most of the watching.
Emails obtained via public records requests show Simon Property — the largest mall owner in America — has deputized itself by giving cops always-on access to its parking lot camera feeds.
The emails reveal a previously undisclosed agreement between Simon Property and Flock Safety, a $4 billion car surveillance company backed by Andreessen Horowitz that works with police departments in over 4,000 cities across the country. Simon is a “customer nationwide” and had “recently made the decision to limit access to their individual properties and instead share directly with law enforcement,” according to a July 2023 email between a Flock employee and one of its customers, the San Diego County Sheriff’s Department.
In other words, it appears that Simon is cutting back on providing access to malls’ internal security staff in favor of handing over its video feeds to local cops. The company owns more than 150 shopping centers across 37 states, along with stakes in major retail brands like Forever 21 and J.C. Penney’s.
You’ll notice something in that first sentence. This agreement — while involving law enforcement agencies — was apparently brokered by Flock Safety, a company that has a definite interest in selling more of its ALPRs to more law enforcement agencies.
But the agreement is with Flock. It’s not an agreement with local cops because that would involve oversight, approval from city officials, opportunities for public comment, and all those other things law enforcement agencies consider a waste of time.
Flock is more than happy to perform these intercessions, of course. First off, it wants more private customers. Second, it wants more government customers. Eliminating friction means pleasing both sets of customers simultaneously. And, like many law enforcement agencies, Flock isn’t exactly respectful of applicable laws or whatever few privacy rights might still remain in areas the public can access.
Here’s just one example of this confluence of public and private surveillance from the emails obtained by Forbes:
The emails, obtained by Forbes from the San Diego County Sheriff’s Department, show that Simon began sharing its Flock feeds from its Fashion Valley mall with the agency in May last year. The Sheriff’s Office didn’t respond to requests for comment asking how it used that access.
The emails also pointed to a collaboration between Flock and the San Diego Police Department (a separate agency from the Sheriff’s), and. SDPD Captain Jeff Jordan told Forbes it too had access to Simon Property feeds. Jordan said it would also get alerted when a car on a criminal suspect hotlist went through one of Simon’s cameras.
Simon declined to comment.
What’s shown here is only the tip of the spy-berg. If this is happening in San Diego, it’s happening elsewhere. Lots of retail outlets are beefing up surveillance in response to increases in shoplifting and other criminal activity. (And they’re doing this even if they’re attempting to obscure their own market failures behind sensationalized reporting on retail theft.) If these outlets are owned by Simon Property, chances are they’re sharing live feeds with cops or are at least being nudged in that direction by the property management firm.
More information of this type is bound to surface as time goes on. And while this is somewhat similar to retail outlets sharing surveillance footage with police investigators when reporting criminal acts, it goes far beyond what your average American retail shopper expects to be happening when they park their car in lot loaded with surveillance cameras. It’s one thing to call in the cops to report criminal acts. It’s quite another to give cops always-on or on-demand access to live footage and recordings. But that’s what Flock wants to facilitate. And it will continue to do so because it allows the company to simultaneously be a private company and a government contractor by proxy, allowing it to make the most money from both sides of the public/private gap without having to be fully accountable to either side.
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Former FCC Chair Ajit Pai seems to have forgotten the First Amendment in his rush to support the TikTok ban. In a recent Fox Business interview, Pai stumbled through a series of perplexing statements, leaving us wondering if he’s ever actually read the bill he’s defending.
And look, we’ve criticized Pai a lot here on Techdirt over the years, but I’ve always thought that he had a firm grasp of the legal issues he was discussing, even when I disagreed with his conclusions. That was especially true around the First Amendment. The only time I thought he truly went weird on the First Amendment was when he caved to then President Trump in agreeing to “review” Section 230.
Pai knows full well that the FCC has no authority over 230. There was really nothing he could do there, so the whole thing appeared to be much more about political expedience, rather than any sort of policy reversal. Pai only finally pushed back on the nonsense demands from Trump over Section 230. It was conveniently timed to just when everyone was focused on the January 6th insurrection at the Capitol.
Again, even when I disagree with Pai on where he comes down on things, I generally think he understands First Amendment law. So I found myself fairly perplexed by his claims in this interview with Cavuto.
It seemed to not just misunderstand the First Amendment issue at play, but suggested that Pai was wholly unfamiliar with the TikTok ban bill he was there to discuss as a supposed expert.
It kicked off with Cavuto replaying a snippet of current FCC Commissioner Brendan Carr defending the TikTok ban at some other point (in totally nonsensical terms, talking about lock-picking and stealing), and then asking Pai for his thoughts. Pai immediately kicked off with an obviously (to anyone who’s actually read the bill) false claim.
“What is at stake here is not the First Amendment rights of TikTok, but simply a national security concern. Indeed, the law that is motivating all of this, doesn’t identify TikTok, and it doesn’t restrict speech. It simply says that any online platform that is subject to the control of a foreign adversary, like China, Iran, North Korea, or Russia, there has to be divestiture there, after a year. Otherwise, the platform will be banned. So I don’t think the First Amendment arguments hold much sway here. Look, I jealously safeguard as much as any American the First Amendment freedoms that we have, but that’s simply not in play in the case of the TikTok bill.”
So, about all of that. Almost everything he said here is wrong. That’s not just a difference of opinion, Pai just seems to not know what he’s talking about.
That’s the law literally calling out ByteDance & TikTok. So, yeah, it does identify them. By name. Directly.
And, yes, it restricts speech. If ByteDance doesn’t divest, then the app will be banned from US app stores. That is absolutely a restriction on speech. Like, this is a restriction on speech right here:
It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application.
And it’s not like we haven’t tried this before the Supreme Court before. We have. Distributing foreign propaganda is still protected under the First Amendment.
As for the claims of foreign ownership, as Pai knows full well, the only restrictions we have on media involving foreign ownership are those involving public spectrum (you know, the stuff he controlled while at the FCC). The Supreme Court has also been pretty clear that when you get beyond public spectrum, the First Amendment rules.
Again, Pai knows all of this, so I’m not sure why he’s saying otherwise, other than that he has already shown that he’ll compromise his free speech principles for political expediency.
Cavuto then points out that his kids are “cynical” about the ban saying that if it wasn’t TikTok, it would just be some other company spying on them, and asks Pai what to say to them. Pai then responds, effectively proving that he knows this is about speech, not national security, contra his statement above:
“What I would say is there’s a difference between social media companies taking your personal information and using that to send you, for example, individualized ads, and what TIkTok has been shown to be doing, which is using US consumer sensitive information, sending it to China, manipulating the algorithm so that Americans see different content and the like….”
So, first off, there isn’t much of a difference in that first one. Chinese entities are already able to buy US consumer personal information from data brokers. And if that’s a problem, then we should pass a federal privacy law regarding data brokers.
But, second, the point about “manipulating the algorithm” (which I’d argue is just “having an algorithm”) is a free speech right. An algorithm that is recommending content is a set of recommendations. It’s a set of opinions. Those are protected speech, which Pai seems to be admitting.
That’s exactly the concern. It’s still protected speech whether we like what TikTok’s algorithm shows. That’s how the First Amendment works.
Cavuto points out that there’s a slippery slope worry here, and Pai says that’s not true because it’s not like the President can just choose which apps to ban here:
“Well, I think so long as the action is being taken on the basis of objective criteria… if we just said the President, or a cabinet secretary, or even a member of Congress, can simply put a finger in the wind, and that particular application or service would be banned, that would be fairly arbitrary and capricious action…“
I mean, again, the law literally says that the President gets to determine whether or not an app has been successfully divested from a foreign adversary “through an interagency process.” I guess Pai could be arguing here that the “interagency process” is “objective criteria,” but it sure seems to put an awful lot of power in the Presidency to determine if it’s okay to ban an app.
There doesn’t seem to be anything in the law preventing the President from “simply putting a finger in the wind” and saying that an app must be banned.
But I know that because I read far enough into the law to see that it directly names TikTok.
One of the primary reasons U.S. consumers pay some of the highest prices in the developed world for mobile data is because U.S. regulators — from both parties — routinely sign off on “growth for growth’s sake” mergers that reduce competition, lower product quality, raise prices, and trigger waves upon waves of layoffs. Usually under the pretense of “amazing new synergies” and job growth.
Yet every single time the exact opposite happens. And despite this happening repeatedly, year after year, nobody learns anything from the experience because the folks doing the wheeling and dealing got what they wanted (usually tax breaks, a short-lived stock price bump, and outsized compensation packages).
“The WSJ reports that a T-Mobile/US Cellular “deal could be reached as soon as later this month.” Verizon reaching its own deal with US Cellular could result in “separate transactions that would give both buyers access to valuable airwaves,” the report said.”
You might recall that when the Trump DOJ and FCC greenlit the Sprint T-Mobile merger (purportedly without even reading deal impact studies) they proposed a “fix” in the form of creating a new fourth major wireless carrier out of Dish Network. But that effort has been a preposterous mess, with most predicting a likely Dish bankruptcy and spectrum sale (likely to Verizon or T-Mobile).
Wall Street demands its quarterly growth at all costs. You can’t get there by offering a quality, affordable product people like. You can get there through subscriber growth at first; but eventually as a market saturates you need to start getting creative. That usually means nickel-and-diming consumers, price hikes, weird and annoying technical restrictions, layoffs, worse customer service, and wave upon wave of otherwise pointless megamergers (you see it happening in streaming TV right now as well).
But because the folks making these decisions (revolving door regulators and over-compensated fail-upward executives) never see anything remotely resembling accountability, nobody learns anything from the experience and the consolidation machine endless repeats itself — until there’s nothing left to buy.
Of course, lawmakers caping for cops have done their best to make this act more difficult. Multiple attempts have been made to create a protective area around cops (the bigger the better!) that would make it more difficult to film police, as well as give cops an excuse to arrest anyone in the area attempting to record them. Most of those efforts have failed, either because they’ve been voted down or they’ve been rejected by courts as unconstitutional.
Cops have also used wiretapping statutes to make bullshit arrests of people who record them. A lot of those efforts have been undone by federal court decisions upholding the right to record officers, even in states where recordings are subject to two-party consent laws.
A teenager who video-recorded his mother’s forceful arrest by Louisiana sheriff’s deputies in 2020 has been awarded $185,000 by a federal jury in a lawsuit filed over one deputy’s attempt to interfere with the recording.
De’Shaun Johnson was 14 when deputies arrived at his family’s home in St. Tammany Parish to question his mother, Teliah Perkins, about allegations she had ridden a motorcycle without a helmet — a charge her attorneys said was baseless and that was never prosecuted.
The confrontation turned physical, and video showed the woman being forced to the ground.
That wasn’t the only confrontation that turned physical. As Johnson attempted to record this arrest occurring in his own home, he was accosted by a deputy far more concerned with the teen’s cell phone than the arrest still underway behind him.
As Mr. Johnson started to record the incident on his phone, Deputy Moring stepped in front of him to prevent him from capturing the incident. Moring shoved Mr. Johnson in the chest and aimed his Taser directly at him. When Mr. Johnson objected, saying, “You can’t Tase a child,” Deputy Moring responded: “Watch me.”
Since the incident, Mr. Johnson was diagnosed with post-traumatic stress disorder and received treatment as a result.
Lovely. I guess it was worth it. After all, the parish residents will be paying this bill and Deputy Moring still got to threaten a non-threatening teen with a Taser. It works out for everyone!
The remarkable thing is this settlement still happened despite the Fifth Circuit granting immunity on the excessive force claims brought by the teen’s mother. It did, however, rule that the teen’s claims against Deputy Moring could proceed. The case proceeded to trial and jury decided a rights violation did occur and it was worth slightly under $200,000.
Of course, this being the Fifth Circuit, at least one judge had stupid things to say about civil rights and cops. This time it was Judge James Ho, who has demonstrated multiple times he believes the government should have more rights than the governed.
Ho dissented from the part of the Nov. 30 decision allowing action against Moring to continue over his attempt to stop the filming of the arrest. “The Constitution does not compel police officers to affirmatively help a citizen secure the ideal camera angle while that citizen is actively berating the police just a few feet away from an active physical struggle with another person,” Ho wrote.
Yeah. That’s why the Fifth is the mess it is. Too many judges like Ho, too few like Judge Don Willett. In other words, cops should be able to “affirmatively” threaten someone with a Taser if they don’t stop filming because heavily armed officers with the force of law behind them shouldn’t have to deal with the immense burden of being “actively berated” while performing an arrest.