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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 5 June 2020 @ 1:01pm

Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230

from the better-for-free-speech dept

Here's an interesting tidbit: the latest move by Twitter to deal with a tweet related to President Trump is that it pulled down a Trump campaign video that was presented as a "tribute" to George Floyd, the Minneapolis man murdered by police last week, and whose senseless death has brought so many thousands to the streets across the US. The video remains on YouTube for the moment. It includes a lot of still photos and a few short video clips. It appears that the copyright holder on one (or perhaps more) of those images and clips likely didn't like it to be included for use by a President for a propaganda video they disagreed with, and filed the DMCA claim.

I think there's a very strong fair use argument here for a whole variety of reasons (and, yes, I fully understand the moral claims that whoever took this photo may feel about it being used in this way, but copyright is not supposed to be used in that way).

But seeing as this comes so soon after Trump's complete and total meltdown over Twitter and Section 230 after it added some additional context to one of his tweets -- leading him to state publicly that Section 230 should be revoked -- I do wonder if this move, in which a video was actually taken down (unlike with his tweets), will have him similarly rage against copyright law? Will we see an executive order demanding an impossible reinterpretation of Section 512's notice-and-takedown provisions? Or does it not work like that?

Of course, what this really demonstrates is why Trump and his fans should absolutely support Section 230, rather than pan it. Section 230, among other things, gives Twitter the freedom to decide how best to run its site, and to date, that's meant bending over backwards to keep the President's tweets online and available for people to view. However, Section 230 explicitly exempts intellectual property. For copyright, there's Section 512 of the DMCA, which is much, much weaker than CDA 230. With CDA 230, there's an immunity -- if there's 3rd party content, a site is not liable and also a site cannot be liable for its moderation choices. With DMCA 512, it's a "safe harbor." Where if you meet certain conditions, you can then be protected. But one element of that safe harbor, is that to retain it you have to take down the content upon receipt of a valid DMCA takedown notice.

I've long argued that this aspect of the DMCA 512, in which the threat of significant liability from the state (i.e., the court system) raises serious 1st Amendment issues. That's because the law heavily favors silencing content with the threat of massive liability if you don't. And the system is heavily imbalanced as there's no effective punishment for false notices, meaning the system is weighted very, very heavily in favor of censorship.

So here's a good point to compare how the two different "intermediary liability" regimes actually work. Under CDA 230, free speech is much more protected. Indeed, the very nature of it is that the courts under 230 cannot force sites to take down speech (they leave that choice up to the sites themselves). Under DMCA 512, however, the liability issue makes it very, very easy to issue bogus takedowns that lead to content being removed.

It's interesting that this is all coming a week after Trump's bizarre tirade against 230, and the same week that the Senate argued that we should make the censoring power of the DMCA even more censorial.

It seems a much better approach would be to leave 230 alone, but fix DMCA 512 by getting rid of the imbalanced nature in putting tremendous state pressure on websites to remove content based solely on an accusation of infringement.

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Posted on Free Speech - 5 June 2020 @ 9:38am

If The NY Times Doesn't Publish My OpEd On Why James Bennet Is An Incompetent Dweeb, It Must Hate Free Speech

from the this-is-not-how-any-of-this-works dept

Buckle up, because this one is going to be quite the long road trip, and I hope you won't rush to the comments without joining me on the entire journey first. But if you want a sense of where we're heading, here's the route map: the New York Times published an insane warmongering Senator's push to turn our own soldiers on protesting Americans, people (including many Times journalists) complained, the Times tried to defend the decision, and then admitted "mistakes were made," and a bunch of very silly people who pretend to be "serious thinkers" whined nonsensically about free speech and the "unwillingness to listen to opposing ideas," all while refusing to listen to opposing ideas. And all of it's nonsense: because editorial discretion is not a free speech issue and calling out a terrible paean to fascism is not an unwillingness to listen to "opposing ideas."

Off we go.

If you've been paying attention to the world of media in the past few days, you've probably already seen some of the loud and raucous debate. On Wednesday, the Times made the incredibly bad decision to publish the truly awful op-ed from Arkansas Senator Tom Cotton, suggesting that President Trump should send the US military to invade US cities, because, while the vast majority of protests around the nation have been peaceful (other than all those disrupted by police violence), there have been a few cases of some people breaking windows, setting fires, and stealing goods. There seems to be little evidence that this is as widespread a problem as the President and his supporters make it out to be, but in an effort to control the narrative, they're claiming that there's widespread violence and attacks overshadowing protests.

Cotton's op-ed is bad. Just to take one bit of it, this paragraph is utter hogwash:

One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what’s necessary to uphold the rule of law.

This is a "the beatings will continue until morale improves" approach. It doesn't work. It's never worked. It will only make things much, much worse, and put many more lives in danger. It is based on a combination of false statements (regarding the extent of "riots"), a misunderstanding of why people are expressing their anger in this way, and huge confusion about how people are likely to react to even scarier militarized soldiers and weaponry arriving on city streets. The people are protesting the very concept that they are an enemy, and sending in our own military is not only scary and authoritarian, it simply reinforces the message that they are protesting against.

An overwhelming show of force is the problem. Doubling down on that doubles the problem.

Leaving that aside for the moment, what's been much more fascinating is the response to the publication. Many people pointed out that it was simply ridiculous for the New York Times to run this op-ed. After many people on Twitter raised questions about why the Times would publish such dreck on its opinion pages, a bunch of Times journalists themselves decided to speak up and call out their bosses for allowing the op-ed to run. Many pointed out that the op-ed itself put Times staffers in danger.

It's worth noting that the Times is one of the newspapers that has a set of very stupid social media policies that forbid journalists and staff from making any comment "that undercuts The Times' journalistic reputation." That means speaking out in this manner may actually threaten their jobs as well. As the complaints grew louder, James Bennet, who runs the frequently awful opinion section of the paper, first defended the decision to publish the op-ed on Twitter with a painfully weak and predictable argument along the lines of "we want to show both sides of the debate." He then posted a somewhat better and more thoughtful explanation in the Times itself (seriously, I'd recommend reading that over his terrible Twitter thread). He's still wrong, but his argument is much better articulated.

Of course, later in the day after an apparently vocal discussion inside the newspaper (more on that in a moment), the Times admitted that the Cotton op-ed did not meet its editorial standards, and should have received a more thorough review. Incredibly, that piece says James Bennet claims he never read the op-ed before it was published:

James Bennet, the editor in charge of the opinion section, said in a meeting with staff members late in the day that he had not read the essay before it was published. Shortly afterward, The Times issued a statement saying the essay fell short of the newspaper’s standards.

“We’ve examined the piece and the process leading up to its publication,” Eileen Murphy, a Times spokeswoman, said in a statement. “This review made clear that a rushed editorial process led to the publication of an Op-Ed that did not meet our standards. As a result, we’re planning to examine both short-term and long-term changes, to include expanding our fact-checking operation and reducing the number of Op-Eds we publish.”

This is insane on so many levels. I find it unbelievable (in the most literal sense) that no one within the editorial process thought to flag a piece as obviously as incendiary as this one for the top opinion editor to review. It suggests either that Bennet is really, really bad at his job, or the entire NY Times opinion section is a complete joke. Or both. There's enough evidence to suggest both of those may be the case. Meanwhile, a new report notes that the Cotton op-ed went through three rounds of revisions, which is quite odd for an op-ed piece, and makes the NY Times look so much worse. It means they really spent time thinking about it and still felt it was worth running, and yet Bennet never even bothered to read it? How is that possible.

In the midst of all this, there were a bunch of tweets and accusations thrown around about the internal debate at the NY Times, with one of its many terrible opinion writers, Bari Weiss, writing a huge thread pushing a narrative that there was a "civil war" between the young "woke" journalists and the older traditional "liberal" journalists. The only problem with this is that almost everyone else who was actually involved in the discussion pointed out that Weiss was completely full of shit.

Click through, because that thread goes on and on and on with examples of Times journalists saying that Weiss' statements appear to be more gaslighting than reality.

But then, of course, you had other "serious people" complaining about the complainers. You had long-time mainstream media "political analyst" Jeff Greenfield pushing a truly ridiculous strawman that complaining about one particular op-ed means you don't think the Times should have an op-ed page at all.

If that's the case, I'll refer to the title of this post. The Times must publish my op-ed on why James Bennet is an incompetent dweeb, or it proves that it's afraid to take on the difficult-to-hear opinions of the day. Prove me wrong, Jeff Greenfield. Prove me wrong.

And there was ever sanctimonious Andrew Sullivan, who called Times reporters speaking up about their own fears for their own safety "an attempted coup."

If you're playing along at home, apparently the rules are that if you're a white, war-mongering Senator with opinions about turning the US military on our own citizens, everyone must listen because that's free speech. But if you're a black reporter who is afraid for the risks you now face, and speaks up about it, that's an "attempted coup."

I sense a double standard.

There was also a truly disingenuous focus on the idea that this represented "safetyism" as a way to silence opposition. This was brought up by both Weiss and Randy Barnett, claiming that by playing the "victim" you are somehow "silencing opposition."

Of course, I have trouble seeing how they're doing anything differently than the people they're complaining about. Those complaining about the op-ed are stating their opinions and suggesting that it was silly of the NY Times to publish a garbage op-ed, which might lead to more death and destruction. Barnett and Weiss are now complaining that it was silly of those complaining to publish those complaints. Would it be okay if I accused both of them of resorting to "safetyism" and trying to hide from the opposing viewpoint that "promoting outright fascism is bad"? Or does this only work in one direction?

Unfortunately, this framing is picking up in certain circles, including among people I respect. The folks at Reason, who I tend to agree with much more frequently than not, ran a silly "mock the woke snowflakes" piece, arguing that this is the end result of political correctness run amok.

The woke left's march through the institutions, from experimental liberal arts campuses to the most hallowed journalistic outlets, has been breathtaking in its speed and scope. It's a generational war, and the GenXers for whom this stuff doesn't come natural are learning that they have to become fluent in the new language or end up as pariahs in their own newsrooms. The country's top editors—Jeffrey Goldberg at The Atlantic, David Remnick at The New Yorker—discover during moments of staff revolt that their old-timey notions about broad public squares and multi-viewpoint conversations are no longer tolerable.

And, of course, Senator Cotton is loving every moment of this nonsense, and gleefully playing up the controversy and using it to attack the Times (which, who knows, may have been his goal all along, or perhaps was just a bonus):



But there's a huge problem with this nonsense. It has nothing to do with "woke mobs," "political correctness," "safetyism," or an "unwillingness to listen to opposing viewpoints." Speaking up about your concerns is not "an attempted coup" and opposing the decision to publish a stupidly bad op-ed is not an unwillingness to have op-eds.

This is all free speech, and no one has even remotely attempted to stop anyone's right to speak their mind. They've just been highlighting the difference between discretion and censorship that we've been talking about here lately. The New York Times is the New York Times because it has a reputation (for some, good, and for others, bad). But part of that reputation is its editorial discretion. Declining to publish a bad op-ed is not about ignoring "the opposition" or wanting to play the victim and squelch "non-woke" speech, nor is criticizing the Times for its decision to publish it.

It's calling out bad editorial discretion. Every choice the Times Opinion section makes involves editorial discretion. Not agreeing to publish my op-ed on James Bennet being an incompetent dweeb is editorial discretion. Continuing to publish whatever utter bedbug nonsense its columnists come up with is editorial discretion. People can and should criticize bad editorial discretion, because that encourages better editorial discretion.

But it is simply ridiculous to say that complaining about a single editorial decision suggests an unwillingness to engage, or an unwillingness to hear ideas someone disagrees with. As far as I can tell, no one in this debate has suggested that Tom Cotton not be allowed to speak his militaristic, ahistorical nonsense. He can say what he wants. The question is whether or not it's appropriate for the New York Times to publish it at all.

This whole silliness hits home deeply for me for a variety of reasons, not the least of which is that just last week we launched a new project, the Techdirt Greenhouse, in which we will be hosting many opinions I disagree with strongly (oh, and for what it's worth, unlike James Bennet, I do read every piece before it goes out). And, over the past two years, as we worked on this effort, I've had to explain to many people that part of the idea was to publish smart, thoughtful, nuanced commentary that will involve fundamental differences of opinion and disagreement -- but without the crazy takes.

And I'll admit that there are times in this process that I questioned myself closely: when I say "no crazy takes," does that mean that I am silencing a certain point of view? Or is it simply a recognition that there are intellectually honest ways to disagree, and intellectually dishonest ways, and I have no desire to be a part of the latter? That, too, is part of editorial discretion.

It is entirely possible to believe in free speech, to believe in hearing all kinds of viewpoints, including those we disagree with and that make us feel uncomfortable, without saying "yes, this publication should post fundamentally terrible, intellectually dishonest support for a truly crazy idea." That's not running from things that make people uncomfortable. It's having the understanding of what's being discussed in good faith, and what's dangerous populist nonsense, designed to stir up emotions through dishonest means, rather than a debate of ideas.

So, of course, the Times should not publish my op-ed about how James Bennet is an incompetent dweeb (even though it's quite good). That's well within its editorial discretion and (mostly) an editorial position I'd agree with. That does not mean that anyone is uncomfortable with my ideas, or trying to silence me. It's just that they understand that my (mythical, theoretical) piece is an attempt at absurdist, emotional nonsense -- just like Senator Cotton's piece -- and deserves no space in a serious publication.

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Posted on Techdirt - 4 June 2020 @ 12:03pm

Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

from the not-a-good-look-guys dept

For many years, we've said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

Over the last few months, we've discussed why publishers and authors were overreacting in their verbal attack on the Internet Archive's decision to launch a "National Emergency Library" to help out during a pandemic. While many publishers and authors declared this to be "piracy," that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don't need special licenses to lend out books.

In other words, this was yet another attack on property rights. Publishers and some authors were trying to argue that the Internet Archive needed extra licenses to lend out legally made scans of legally obtained books. And to respond to a few common criticisms of the NEL: they were doing this since so many libraries and schools around the world were shuttered due to the pandemic, meaning that millions of books were literally collecting dust on shelves, un-lendable. More importantly, the NEL was not targeting recent releases (all books in the NEL are over 5 years old, and the commercial life of nearly every book is much shorter than that). Finally, contrary to some claims, the books in the NEL are not "bit for bit copies" of high quality ebooks. They are relatively low quality scans. If a more legit version is available, nearly any reasonable person would go for that instead (indeed, I've personally purchased multiple books after first borrowing copies from the Open Library before deciding to get a permanent copy). Also, most of the books available in the NEL are simply not available at all in ebook format, meaning that they're not available at all during the pandemic for many people.

There was some chatter that publishers might choose not to sue the Internet Archive over this, because losing this fight would seriously challenge a bunch of other copyright claims that they rely on. But, come on. These guys are so obsessed with copyright, how could they not sue? So, earlier this week, all the big publisher teamed up to sue the Internet Archive, represented by former RIAA lawyer Matt Oppenheim, who has a long history of being on the bad side of nearly every big copyright case.

Here's the thing, though: the publishers didn't just decide to sue over the National Emergency Library: instead they're also suing over the entire "Controlled Digital Lending" process. That's the program that the Authors' Guild has been whining about, which is the underpinning of the NEL. The CDL/Open Library program involves letting libraries lend out digital books if they retain a physical copy of the book on the shelf (so maintaining a one-to-one relationship between books lent out and books that the libraries have in their possession). The NEL took away that limitation, with the argument that this was allowed due to their reading of fair use in the midst of a pandemic with so many books locked up.

While I support the NEL -- I can recognize that courts may not buy their fair use arguments. On the CDL/Open Library front, though, that's just blatantly attacking a very standard library procedure. There can be no argument of "lost revenue" from the CDL, unless you're attacking the very basis of libraries themselves. And that's what the lawsuit appears to do.

The scale of IA’s scheme is astonishing: At its “Open Library,” located at www.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.

Except the identical argument applies to public libraries lending physical copies as well. It does not "grossly exceed legitimate library services." It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That's a LIBRARY.

The lawsuit tries to pay lip service to libraries, and to argue that what IA is doing is somehow different than a library, but it doesn't hold up to much scrutiny. Instead, the lawsuit and the Publisher's Association's press release about this are filled with nonsense rhetoric about how crucial books are to society and how evil, evil piracy is. From the lawsuit:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That's right: and for tons of people they way they read those books is from a library. The Association of American Publishers, led by fired former Copyright Register Maria Pallante is spitting fire over this:

Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

In willfully ignoring the Copyright Act, IA conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and eBook lending.

Yeah, but that's kinda the point, isn't it? The publishers have been chipping away at "libraries" for years. Before ebooks, libraries could buy books and lend them out. They didn't need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

It's that very new imbalance that the CDL/Open Library system was designed to fight back against. But, no, the publishers act as if they've always been able to block libraries from lending.

And, of course, filing this lawsuit in the midst of a pandemic (not to mention all the social unrest) in which libraries around the globe remain closed is just... crass.

For what it's worth, in looking down the list of works sued over, and doing a spot sampling, it looks like at least some (though not all) of the works being sued over are no longer available through the National Emergency Library. Since the NEL has always had a simple opt-out system, it does make you wonder why these publishers and authors didn't just make use of that. But also looking over that list, I see a bunch of books that I know are read in schools -- meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being "essential to our society."

But, of course, this is copyright, and the rule of the land tends to be that when big legacy copyright holders file lawsuits, they tend to win. I'd say there's a more than even chance that the Internet Archive loses. Not because it should, but because when big old industries scream copyright infringement, we've seen the courts buy it over and over again, even when the legal arguments are nonsensical. And, in this case, the Internet Archive's legal theories are certainly untested. There isn't real legal precedent to guide this. For its part, the Internet Archive has said that they hope this can be resolved quickly, however, there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

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Posted on Free Speech - 4 June 2020 @ 9:48am

CDT First Out The Gate In Suing To Block Donald Trump's Silly Executive Order On Section 230

from the go-go-1st-amendment-go dept

The Center for Democracy and Technology appears to be the first out of the gate in suing Donald Trump to block his silly executive order on Section 230. In the aftermath of the EO being issued I know some people wondered if it was actually worth suing over, since it actually did so little in practice. But, as I discussed in this week's podcast, it can still be used to create havoc.

The basic argument in the lawsuit is that the executive order is clearly retaliatory against Twitter for its 1st Amendment protected speech in fact-checking the President, and thus violates the 1st Amendment:

A private company engaged in constitutionally protected speech on its own online platform by including a label on President Trump’s tweets on May 26, 2020, and linking to information regarding the subject matter of President Trump’s tweet, thereby expressing its viewpoint and adding to the discourse on its platform regarding the subject matter of the President’s tweets.

Two days later and after a series of public attacks directly focused on the company’s exercise of free speech, President Trump retaliated on May 28, 2020, by issuing the “Executive Order on Preventing Online Censorship,” expressly mentioning the company by name six times. The company’s constitutionally protected speech was the proximate or “but for” cause of President Trump issuance of the Executive Order. President Trump also issued the Executive Order to pressure the company into removing its constitutionally protected speech from its online platform and to coerce other Internet intermediaries into refraining from similar constitutionally protected speech on their own platforms, and into prohibiting such speech by their users, in the future.

President Trump’s retaliatory acts would deter a person of ordinary firmness from engaging in First Amendment speech and activity.

The Executive Order was intended to have, and is having or is likely to have, the effect of chilling the constitutionally protected speech of online content platforms, including Twitter, Facebook, Instagram, and YouTube that were explicitly named in the Executive Order.... The Executive Order seeks to curtail and chill the constitutionally protected speech of all online platforms and individuals—by demonstrating the willingness to use government authority to retaliate against those who criticize the government.

The complaint goes into great detail as to why this is obviously retaliatory, laying out the timeline:

Twitter did not remove the President’s tweets about mail-in voting. Those tweets remain available to the public. Instead, Twitter provided more information regarding the subject matter of the President’s tweet.

In response, on May 26, 2020, the President tweeted “@Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the Amazon Washington Post . . . .” “Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!”

[....]

On May 27, 2020, the President tweeted at 7:11 a.m., “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that . . . happen again.” “Just like we can’t let large scale Mail-In Ballots take root in our Country. It would be a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win. Likewise, Social Media. Clean up your act, NOW!!!!”

The President continued his targeted attacks by tweeting at 10:22 a.m., “Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct. Big action to follow!” At 9:36 p.m., he followed up by tweeting, “Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election. If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!”

On May 27, 2020, White House adviser Kellyanne Conway, appearing on “Fox & Friends,” spelled out the Twitter handle for Twitter’s head of Site Integrity (a “handle” is the means of identifying a specific individual via Twitter) and said, “somebody in San Francisco will wake him up and tell him he’s about to get more followers. This guy is constantly attacking Trump voters, Trump, Mitch McConnell, you name it.” The handle for Twitter’s head of Site Integrity is “@[y*****].”

At 10:47 p.m. on May 27, 2020, Twitter’s CEO Jack Dorsey stated on Twitter that he personally took responsibility for the decision to add a label to Trump’s tweets, adding, “Please leave our employees out of this.”

On May 28, 2020, the President retweeted Rep. Elise Stefanik’s tweet: “Thanks for the clarification @jack[.] This makes YOU accountable for allowing the Chinese Communist Party to abuse this site with mis-information & propaganda spread across the globe - all while the CCP bans and suppresses their own people from using Twitter!”

Later that morning, at 8:37 a.m., President Trump tweeted, “This will be a Big Day for Social Media and FAIRNESS!” At 12:44 p.m. he continued, “So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World. Tell that to your hater “@[y*****].”

There's more in the complaint on Trump's retaliatory efforts, including examples of him retaliating against companies in the past as well.

One question I was concerned about was whether or not CDT actually would have standing to bring this lawsuit, since it's not an interactive computer service, as targeted by the complaint. CDT argues that it has standing due to its efforts to fight for free speech online, which the order will likely impact:

CDT is a nonprofit advocacy organization that works to ensure that the human rights people enjoy in the physical world, like freedom of speech, are realized online and that technology continues to serve as an empowering force for people worldwide. Integral to this work is CDT’s representation of the public interest in the creation of an open, innovative, and decentralized Internet that promotes the constitutional and democratic values of free expression, privacy, and individual liberty.

Critical to CDT’s mission is advocating in favor of First Amendment protection for speech on the Internet. To that end, among other things, CDT has participated in a number of cases addressing First Amendment rights and the Internet, including as litigants in CDT v. Pappert, 337 F. Supp. 2d 606, 646, 649-63 (E.D. Pa. 2004) (striking down as unconstitutional a statute that imposed criminal liability on Internet service providers who failed to comply with requests issued by the Pennsylvania Attorney General to block access to websites containing child pornography); challenging, as part of a broad coalition, key portions of the Communications Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997) (striking down portions of the CDA prohibiting transmission of obscene or indecent communications to persons under Age 18 as a content-based blanket restrictions on speech and facially overbroad in violation of the First Amendment); and as amicus curiae in First Amendment challenges including Backpage.com, L.L.C., v. Dart, 807 F.3d 229 (7th Cir. 2016) (holding campaign by sheriff’s office to pressure pressuring financial intermediaries to cease payment processing for online classified advertising website to be an unconstitutional prior restraint) (See ECF Nos. 29, 34, 35, and 37, No. 15-3047 (7th Cir.)).

CDT has been deeply engaged in law and policy advocacy regarding intermediary liability frameworks, free speech, and content moderation since the organization was founded in 1994.

The organization devotes significant resources to advocating in favor of individuals’ online free expression rights and the legal frameworks that support them, including evaluating proposals to amend the proposed laws on free speech online and challenging legislation that burdens individuals’ fundamental rights, holding public events, and communicating with policy makers in the Executive and Legislative Branches.

The Executive Order injures Plaintiff CDT by infringing on its interests, including its interests in enhancing freedom of expression, preserving the unique nature of the Internet, and limiting government surveillance, and by causing Plaintiff CDT to divert resources to safeguarding the principles underlying the First Amendment, 47 U.S.C. § 230, and the free speech rights of online content platforms and individuals that the Executive Order places under attack.

As a result of the Executive Order, CDT will be required to devote substantial resources to (a) participating in the planned FCC rulemaking proceeding; (b) monitoring federal agencies’ reports regarding and any action by the Department of Justice; (c) tracking any FTC action with respect to online speech, and participating in any proceedings that the Commission institutes; (d) engaging with federal and state policymakers with respect to the development of proposed legislation—as well as informing the public about all of these activities and the potential consequences for protection of free speech online. These activities will be time-consuming and resource-intensive, and will require CDT to reallocate resources that it planned to use for other activities furthering its mission.

I don't know if this will be enough to convince the court, but I hope it is. CDT has been on the frontlines of so many lawsuits defending free speech on the internet, with many success stories behind it. Hopefully this is another one.

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Posted on Free Speech - 3 June 2020 @ 11:01am

Copyright Blocks Interview Of Protesters Because Marvin Gaye's 'Let's Get It On' Was Playing In The Background

from the copyright-as-censorship dept

Another day, another example of copyright acting as censorship. The folks over at Unicorn Riot have been covering the protests around the country, but apparently they can't do that as they'd like because copyright is getting in the way. Unicorn Riot announced on Twitter that video interviews they had conducted and posted have been pulled down from both Facebook and YouTube due to copyright claims such as this one:

If you look closely at that image of the info within YouTube, it shows what are most likely ContentID matches of five different songs that were flagged, playing in the background while protesters were being interviewed. Three of the songs -- by Beyonce, Kanye West, and Kendrick Lamar -- were listed for demonetization (which would allow Unicorn Riot's videos to play, just without monetization). But two more -- by 2Pac and Marvin Gaye -- said the entire video had to come down.

Now, YouTube does let the user "trim out" that sequence, or "mute" the song, but doing so would trim or mute the interview at the same time, and that kinda defeats the purpose.

And so you have an end result where important historical documentation of huge and important protests, focused on police brutality against black Americans, is being blocked and erased from history, due to the copyright on music created by black musicians.

That cannot and should not be the point of copyright. And yet, it is what we have today.

Unicorn Riot (understandably) is complaining that Facebook and YouTube have "algorithmically interfered" with their reporting, but the reality is that it's copyright to blame here. And we should not confuse the two.

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Posted on Techdirt - 3 June 2020 @ 3:27am

Italian Public Prosecutor Says Project Gutenberg's Collection Of Public Domain Books Must Be Blocked For Copyright Infringement

from the protecting-the-copyright-of-dante? dept

Back in 2013, we made clear our concerns with the Italian communications watchdog AGCOM setting up new administrative copyright enforcement powers that would allow them to simply up and declare sites to be infringing, at which point ISPs would be ordered to block websites. Soon after that Italy's public prosecutor seemed to decided that part of his job was also to order websites blocked based solely on the public prosecutor's say so.

In the latest such order from the Public Prosecutor's office declaring a list of sites to be infringing, apparently Italy has decided that the famous and wonderful Project Gutenberg website, which is a repository of public domain books, must be blocked. I don't know about the other 27 sites listed in the order, but Project Gutenberg is no piracy site. Yet here it is at number 25 on the list:

They even go to the trouble of looking up the whois info. You would think that maybe someone would recognize that a site founded in 1996 maybe is not a giant piracy site:

The Italian Library Association is asking what the fuck is going on (translation via Google Translate):

As everyone knows, Project Gutenberg promotes the widest dissemination and knowledge of the registered cultural memory. For years it has been hosted by large universities that made their servers available, before becoming an autonomous organization, one of the main of this type and inspiring model for many other similar ones (such as the Manutius Project in Italy), mainly supported by work. of many volunteers. We reiterate that it is one of the most qualified projects on the net, with a large amount of documents accessible for free in compliance with the US Copyright Act, because it is in the USA that it is based: they are works in the public domain, out of rights because they have always been public domain (such as the Bible) or because the maximum terms of duration of copyright have passed.

Seeing the Gutenberg Project linked to a whole series of domains that contain pirated editorial materials for commercial purposes causes bewilderment and disapproval in the world of libraries.

It appears that neither the Italian Public Prosecutor nor the Court even attempted to contact Project Gutenberg which only found out about it after a visitor to the site in Italy made them aware of it:

And, if you want to understand how this happened -- which also might raise some huge questions about how the public prosecutor's office works -- it appears that they were monitoring some Telegram private channels, and saw someone there link to some pirate sites and link to Project Gutenberg, and rather than, you know, investigate, they just decided to ban the entire list. Pretty incredible that they'd look up the whois, but apparently not check out the actual website. Because of copyright, apparently, they must censor all.

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Posted on Techdirt - 2 June 2020 @ 11:59am

Just As The Copyright Office Tries To Ignore The Problem Of Bad Takedowns, NBC & Disney Take Down NASA's Public Domain Space Launch

from the copyright-censorship dept

The recent Copyright Office report on Section 512 of the DMCA (the notice and takedown provisions) has been frustrating on many levels, including the fact that it simply ignores that the public is a stakeholder (actually the main stakeholder) in copyright policy. But one of the most frustrating parts of the report is that it ignored a ton of testimony (including some provided by me) about how frequently the 512 notice-and-takedown process is abused (either on purpose or accidentally) to take down non-infringing content. The Copyright Office acts as if this is a fringe issue, when the data suggests it's a massive problem impacting millions.

And just to put a pretty fine point on it, you probably heard about or (hopefully) saw the launch this weekend of the SpaceX Dragon capsule, with the first private manned mission to space, that was done in conjunction with NASA. It was pretty cool, and a ton of people tuned in to watch it live. Of course, many also tuned in the previous Wednesday to try to watch the original planned launch, before it got scrubbed due to weather. NASA had a wonderful live stream going for both (which I watched). And works produced by NASA are in the public domain -- which is why many other broadcasters were easily able to use them as well.

But because the numbskulls at NBC Universal work with the default mindset that everything must be owned, and if everything must be owned, then obviously anything that NBC Universal broadcasts must be owned by NBC Universal, it made bogus copyright claims on a ton of others using NASA's footageincluding NASA itself leading to NASA's own public domain video being blocked on NASA's own YouTube page.

Nice work, copyright!

And, that's not all. Having dealt with a bogus claim on Wednesday, one would hope that people would get their shit together for the actual launch on Saturday and the docking on Sunday. No such luck. Because for Saturday's launch, National Geographic, a property owned by Disney, did the same thing:

The end result is that people going to NASA's own feed to try to watch some of the launch/flight/docking got to see things like this:

Now, to be clear, these appear to have been a ContentID claims, which are sort of the ugly cousin of a DMCA 512 notice-and-takedown, but it's the same basic principle. Copyright is abused constantly, every single day, to censor the speech of people. Sometimes in absurd ways like this, but often in serious and significant ways as well.

That the US Copyright Office doesn't see this or doesn't think it is a problem is a travesty and calls into question the credibility of the entire 512 report.

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Posted on Techdirt - 2 June 2020 @ 9:24am

New Study Finds No Evidence Of Anti-Conservative Bias In Facebook Moderation (If Anything, It's The Opposite)

from the there-we-go dept

Over the last few months, it's been weird to watch how any time we point out that there's no actual evidence of anti-conservative bias in the content moderation practices of social media, some in our comments absolutely lose their shit. One commenter, has been on a rampage in just the last week to declare me an evil liar for refusing to admit the "obvious" fact that there's anti-conservative bias in moderation. However when I and others ask these people for that evidence, it never seems to show up.

I imagine they are not going to like this story either. A new study from CrowdTangle, a data analytics firm that is owned by Facebook, and has access to Facebook data, seems to suggest that if there's any bias, it goes the other way:

In fact, according to CrowdTangle, a data-analytics firm owned by Facebook, content from conservative news organizations dominates Facebook and often outperforms content from straightforward news organizations.

Additionally, over the last month on Facebook, Trump has captured 91% of the total interactions on content posted by the US presidential candidates, according to CrowdTangle. Biden has captured only 9%.

And if the moderation efforts are designed to harm conservative media, it doesn't seem to be working:

Over the last month, the top performing news organization in the US was Fox News, a conservative network which largely echoes the Trump White House's messaging.

Fox News captured 13% of all interactions among US news organizations with more than 29 million likes, comments, and shares, according to CrowdTangle.

The second top performing page belonged to Breitbart, a right-wing website that is largely supportive of the President and has close ties to the White House. Its Facebook page accounted for 9% of the total US media interactions over the last month with more than 20 million likes, comments, and shares.

And in just looking at "political pages" the data again shows a lean towards more conservative pages:

Ben Shapiro, the prominent conservative news personality, generated more than 25 million interactions over the past month on his page, accounting for 29% of the total share from US political media on Facebook, according to CrowdTangle.

The second top US political media page belonged to Breitbart, with 23% of total interactions.

Other conservative outlets in the top 10 for US political media over the last month: The Western Journal in fifth with 4% of the total interactions; TheBlaze in seventh with 3% of the total interactions; IJR in eight with 2% of total interactions; and the Washington Examiner in ninth with 2% of interactions.

Now, does this mean that Facebook has an "anti-liberal bias"? No. It's just how these things shake out in the end and how Facebook's algorithms work. Though, this data suggests, at the very least, one of the key reasons why the Trumpist crowd keeps resorting to the false narrative of bias: it's working the refs to make sure that they get these kinds of results.

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Posted on Free Speech - 1 June 2020 @ 10:40am

Joe Biden Wastes A Huge Opportunity To Support Free Speech; Still Wants To 'Revoke' Section 230

from the dude,-seriously? dept

Joe Biden had a golden opportunity to actually look Presidential, and stand up for free speech and the 1st Amendment at a moment when our current President is seeking to undermine it with his Executive order that is designed to intimidate social media companies into hosting speech they'd rather not, and scare others off from fact checking his lies. And he blew it. He doubled down on the ridiculous claim that we should "revoke" Section 230.

A spokesperson for the campaign told The Verge Friday that the former vice president maintains his position that the law should be revoked and that he would seek to propose legislation that would hold social media companies accountable for knowingly platforming falsehoods.

In other words, he wants to go even further than Trump and literally wipe out free speech online. Of course, the problem with that "proposed legislation" is that it's clearly unconstitutional and the man who wishes to be President still thinks that Section 230 does what the 1st Amendment actually does. He's simply wrong in claiming that taking away 230 will magically make Facebook liable for spreading false info.

Indeed, as we've pointed out multiple times, the claim that taking away 230 will make Facebook liable for false info is itself false info. But Biden (and Facebook and anyone else) are protected in repeating that false info because of the 1st Amendment.

Biden's ongoing attacks on free speech are truly unfortunate -- especially given that Trump's silly Executive order basically put the issue on a tee for Biden to respond to. And instead, we get a plan to go even further than Trump in trying to harm the internet that enables the speech of so many people.

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Posted on Techdirt - 1 June 2020 @ 9:40am

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It's Time To Use Copyright To Make The Richest Musicians Richer

from the read-the-fucking-room-guys dept

There's kind of a lot going on in America right now -- what with widespread protests about police violence (leading to more police violence), and we're still in the middle of the largest pandemic in a century. You'd think some of those things would be priorities for Congress, but instead, Senate Republicans have decided that now is the time to pushing ahead with helping Hollywood by examining how to make copyright worse. Even the Washington Post is completely perplexed as to how this could possibly be a priority right now.

“I don’t think we have yet felt the urgency of acting immediately” on further help for those devastated by the pandemic, McConnell said two weeks ago. Now, with 100,000 dead and 40 million out of work, he still talks of waiting a month.

So what makes Senate Republicans feel the urgency of acting immediately? What would make them Take It to the Limit?

Don Henley would.

I Can’t Tell You Why.

Actually, I can. The Eagles singer and drummer has been summoned by the Senate Judiciary subcommittee to testify Tuesday about the functioning of the Digital Millennium Copyright Act’s “Notice-And-Takedown System.”

Henley, of course, is one of the wealthiest musicians in history, considering that he was a founding member of the Eagles, a band that literally has both the best selling album of all time AND the third best selling album of all time. Yes, in the top 3 best selling albums of all time, Don Henley's on two of 'em.

If Don Henley is hurting for money, I'm going to suggest that it ain't copyright that's the problem. But this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. "I don't condone it," he said of such practices. "I'm vehemently opposed to it. Not because I don't like parodies or satires of my work. But it's simply a violation of U.S. copyright law."

[....]

"People in my age group generally don't like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating."

Really, none of this makes any sense. You'd think (1) that right now wouldn't be the time to focus on copyright, (2) that Republican Senators wouldn't be in such a rush to aid Hollywood (which is generally not known for its support of the GOP), and (3) that of all the possible people to testify, they'd pick a rich rocker who's big complaint about the internet is that it allows the kids these days to be creative. But for whatever reason, this is what the Republican leadership in the Senate feels is most important right now. Helping super rich rockers who dislike the kids get even richer at the expense of the public.

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Posted on Free Speech - 29 May 2020 @ 2:03pm

No, Twitter Fact Checking The President Is Not Evidence Of Anti-Conservative Bias

from the get-a-fucking-grip dept

I know we've gone through this a bunch already, but there remains no evidence to support the claims of "anti-conservative bias" at major social media platforms. Some people (usually self-claiming conservatives, though they rarely seem to represent actual conservative principles) get really angry about this. But, oddly, none ever seem to present any actual evidence.

Of course, the very underpinnings of the White House's silly and nonsensical executive order regarding social media is that of course there's is anti-conservative bias in the moderation, and it even points to the action that kicked off this entire temper tantrum from the thin-skinned President: they provided a link under his debunked conspiracy theory tweet about mail-in ballots. Many Trump supporters and the executive order itself argue that this kind of fact checking is only done to conservatives:

Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.

This is a sample size of one. And, indeed, while it's not a "politician's tweet," Twitter has used the same fact check labeling system to defend this administration. Indeed, the first time I ever saw such a fact check was a few weeks ago when it was used to defend Mike Pence from misleading claims in a Jimmy Kimmel bit:

It turned out that Kimmel's portrayal of Pence was totally inaccurate, and he took what was an obvious joke by Pence and pretended it was serious. And Twitter's fact checkers debunked the viral tweet. Even though it was a story going viral in the anti-Trump world, and the fact check aided the administration.

Now, these are both just anecdotes, but, at the very least, they suggest that the idea that Twitter is applying these fact checks in a politically biased manner is not obviously supported by the evidence. So far I've seen this feature show up on two viral tweets. One that debunked Trump and one that debunked people making fun of Pence.

Meanwhile, perhaps the funniest thing I've seen in a while is a bunch of famous people, who claim to be conservatives, gloating over how this executive order is so necessary because Twitter censors conservatives... and all of their gloating is on Twitter itself.






If Twitter is stifling free speech, and censoring conservative voices, it's doing a shit job of it.

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Posted on Free Speech - 29 May 2020 @ 10:01am

Trump's Final Executive Order On Social Media Deliberately Removed Reference To Importance Of Newspapers To Democracy

from the because-of-course dept

We wrote a detailed breakdown of the President's silly, nonsensical, legally wrong Executive Order regarding social media yesterday. A few hours later the official version came out, and it was somewhat different than the draft (though, in no ways better). If you want to see the differences between the draft and the final version, here's a handy dandy redline version put together by Professor Eric Goldman.

The new version inserted a bunch more nutty ramblings that have no legal meaning, but should the executive order ever need to be challenged in court, more or less made it clear that this was done vindictively. It honestly reads like Trump read the draft and whined that there wasn't enough about how unfair everyone is to him and what a meanie Rep. Adam Schiff has been in investigating the President. Separately, the very fact that the draft changed so drastically from the night before to the moment of release shows that it was drafted hastily, which provides even more evidence that it was done directly in retaliation for Twitter fact checking his false claims.

The biggest change in the final version is that beyond setting up a "working group," the final version instructs the Attorney General to "develop model legislation for consideration in States where existing statutes do not protect Americans from such unfair and deceptive practices." Theoretically, this might become a nuisance, but (1) Barr already put together such a working group last year, and (2) had already been working on various legislative proposals to undermine Section 230, including the EARN IT Act that we've discussed at great length.

One other notable change is in the instructions given to the FCC, which (despite having literally no legal authority over websites) is to come up with an interpretation of Section 230 (also, the FCC has no reason or basis to interpret Section 230, as that's a job for the courts). The difference from the draft is that it instructs this analysis to look at "the interaction" between the two clauses of the Good Samaritan clause:

... requesting that the FCC expeditiously propose regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

If you don't recall, we've discussed at great lengths the two parts of 230. (c)(1) is the sites are not liable for content posted by users part and (c)(2) is sites are not liable for moderation choices. These are two separate things. There is no "interaction" between them. There's never been any interaction between them. No court has said there's any interaction between them. As far as I know, no party in a case has competently argued that there's an interaction between them.

Yet, to try to make this EO have teeth, the Trump administration seems to want to invent an interaction between the two. Specifically, (c)(2)(A) says that:

No provider or user of an interactive computer service shall be held liable on account of.... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

The Executive Order is hinting that "good faith" and the "objectionable" content part should somehow restrict the part that makes a website liable for what it's users do. There is no credible lawyer who thinks this makes any sense. It's just a weird move by someone looking for any scrap of a way to increase the liability of websites.

But to me, the craziest part of the "changes" between the draft and the final version is that someone apparently flipped out that during the patriotic nonsense part, the original draft mentioned that open and free debate in businesses and newspapers is "essential to sustaining our democracy." And the final version crossed out both businesses and newspapers, and replaced them with "town halls."

It's almost as if someone saw that and said "shit, we can't admit that open debate in newspapers is good for democracy when we keep attacking them and calling them fake news."

Once again, this whole thing is nonsense, and is designed to distract from the President's own failings.

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Posted on Free Speech - 28 May 2020 @ 11:15am

Mark Zuckerberg's Ridiculously Wrong, Misleading, And Self-Serving Statements Regarding Twitter Fact-Checking The President

from the oh-shut-the-fuck-up dept

As we continue to deal with the fallout of our thin-skinned President throwing a hissy fit over Twitter daring to provide more context to conspiracy theory nonsense that Trump himself tweeted, Facebook founder and CEO, Mark Zuckerberg, has apparently decided that it's more important to stomp on Twitter while it's down, rather than protect the wider internet. In a shameful display of opportunistic nonsense, Zuckerberg went on Fox News and pretended that Facebook was somehow not interested in moderating content the way Twitter did:

"We have a different policy, I think, than Twitter on this," Zuckerberg told Dana Perino, host of the Fox News show The Daily Briefing, in an interview clip. The full interview is expected to air on Thursday.

"I just believe strongly that Facebook shouldn't be the arbiter of truth of everything that people say online. In general, private companies probably shouldn't be, especially these platform companies, shouldn't be in the position of doing that," Zuckerberg added.

Perino said that Zuckerberg told her that Facebook refuses to intervene in censoring public posts unless there's a threat of imminent harm. She added that Facebook is "hands off" when it comes to political speech.

Sure, they have a different policy, because almost all sites have different policies, but if you compared Facebook's policies on content moderation to Twitter's you'd find that Facebook does vastly more moderation than Twitter has ever done and Facebook introduced similar "fact checking" efforts years ago. To pretend that Facebook doesn't do the exact same thing that Twitter is accused of doing here is just ridiculous. And, we all agree that no platform should be "the arbiter of truth" but that's not the same as saying "do no moderation" (and again, Facebook does a ton of moderation). As for the final claim that Facebook is "hands off" when it comes to political speech, that's also false. Facebook is hands off on political ads, but not all political speech. And so is Twitter, in that it bars all political ads in the first place.

This is disappointing, but all too common from Facebook, the company that stabbed the open internet in the back by supporting FOSTA a few years ago. The company has clearly made the decision that it can sell out the open internet in favor of more political clout.

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Posted on Free Speech - 28 May 2020 @ 10:12am

The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless

from the the-season-of-dumb dept

We've officially reached pure silly season when it comes to internet regulations. For the past two years now, every so often, reports have come out that the White House was exploring issuing an executive order trying to attack Section 230 and punish companies for the administration's belief in the myth that content moderation practices at large social media firms are "biased" against conservatives.

However, it apparently took Twitter literally doing nothing more than linking to people arguing that Trump's tweets were misleading, to cause our President to throw a total shit fit and finally break out the executive order. This one is somewhat different than drafts that have been floated in the past, though it has the same origins (and, according to a few people I spoke to, this new executive order was "hastily drafted" to appease an angry President who can't stand the idea that someone might correct his nonsense). You can read the draft that get sent around to everyone last night. The final version is expected to be at least somewhat close to this.

To be clear: the executive order is nonsense. You can't overrule the law by executive order, nor can you ignore the Constitution. This executive order attempts to do both. It's also blatantly anti-free speech, anti-private property, pro-big government -- which is only mildly amusing, given that Trump and his sycophantic followers like to insist they're the opposite of all of those things. But also, because the executive order only has limited power, there's a lot of huffing and puffing in there for very little actual things that the administration can do. It's very much written in a way to make Trump's fans think he's done something to attack social media companies, but the deeper you dig, the more nothingness you find.

Let's dig into this clusterfuck of nonsense. It starts out with what might sounds like a sensible argument, if you don't understand the ins-and-outs of Section 230, by saying that because Section 230's "good samaritan" clause requires good faith, that "pretextual actions restricting online content or actions inconsistent with an online platform's terms of service" are somehow not covered by 230:

Section 230(c) was designed to address court decisions from the early days of the Internet holding that an online platform that engaged in any editing or restriction of content posted by others thereby became itself a “publisher” of the content and could be liable for torts like defamation. As the title of section 230(c) makes clear, the provision is intended to provide liability “protection” to a provider of an interactive computer service (such as an online platform like Twitter) that engages in “‘Good Samaritan’ blocking” of content when the provider deems the content (in the terms of subsection 230(c)(2)(A)) obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. Subsection 230(c)(1) broadly states that no provider of an interactive computer service shall be treated as a publisher or speaker of content provided by another person. But subsection 230(c)(2) qualifies that principle when the provider edits the content provided by others. Subparagraph (c)(2) specifically addresses protections from “civil liability” and clarifies that a provider is protected from liability when it acts in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” The provision does not extend to deceptive or pretextual actions restricting online content or actions inconsistent with an online platform’s terms of service. When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United States that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

This, like so much misinformation, has a tiny nugget of truth, buried in a mound of pure bullshit. The nugget of truth: content created by a platform has never been covered by Section 230. That means that the text of the line notifying people that there was more information about mail-in ballots, was a Twitter creation and of course it's liable for that content alone. That's always been the case though. This executive order does nothing to change that.

But nearly everything else here is ridiculous nonsense. Courts have ruled over and over and over again that "otherwise objectionable" covers a lot of ground and the President doesn't get to just change that. Besides, it's beyond evident that Twitter had a good faith belief that its users were better served by providing additional context (additional speech!) to Trump's conspiracy theory. That's a basic editorial function well protected by the 1st Amendment.

Also, importantly, the order that "all departments and agencies should apply" this nonsense interpretation of 230 is... meaningless. Federal agencies don't interpret or enforce Section 230. The courts do that. So what will this actually do or change? Literally nothing.

From there, the President tries to get agencies to "do something," that they cannot do and which would be meaningless even if they wanted to do something anyway.

To further advance the policy described in subsection (a) of this section, within 30 days of the date of this order, the Secretary of Commerce (Secretary), through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:

(i) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly the conditions under which such actions will be considered to be:

(1) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(2) the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard; and

(ii) Any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

So much nonsense to unpack here. First of all, the FCC has no authority to issue such regulations. None, zip, zilch. Part of the ruling in Reno v. ACLU that tossed out all the other parts of the CDA as unconstitutional made it clear that the FCC has no authority to regulate websites. And it's even more ridiculous when you realize that this is being handed to the very same FCC that has sworn up and down, left, right, center, backwards, and forwards, Monday through Sunday and back again, that it has no authority to regulate "neutrality" and doesn't want to have any authority to regulate "neutrality," and even thinking that the FCC might want to enforce neutrality over the parts of the telecom system that it does have authority over is crazy talk and nonsense. So, you have an FCC saying it can't enforce neutrality for infrastructure players (again, over which the courts have made clear it has authority), being told that it needs to enforce neutrality for edge providers (which no sensible person believes it has authority).

Second, courts have long determined that the only reasonable interpretation of "taken in good faith" is to mean that the platforms have a very wide berth in choosing what to moderate. A court cannot second guess that without running into significant 1st Amendment issues regarding compelled speech and anyone's ability to make their own editorial judgments. Third, "deceptive, pretextual, or inconsistent with a provider's terms of service" is again outside the FCC's authority. It might be covered by the FTC, but in a very, very limited way. Making editorial decisions that an immature crybaby with too much power doesn't like is not deceptive nor inconsistent with a website's terms of service.

Third, note the specifics of the order. The NTIA, which the President can command, is told to petition the FCC (which the President cannot command). The FCC need not do anything with that petition. Fluff and nonsense designed to make people think something was done.

Perhaps recognizing how silly the FCC part is, the EO also ropes in the FTC. But this won't get very far either:

The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to 15 U.S.C. 45. Such unfair or deceptive acts or practice shall include practices by entities regulated by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

First off, the FTC already has the power to prohibit unfair and deceptive acts. So telling the FTC that it should do what it already does is... once again... meaningless. As for telling the FTC to go after platforms for restricting speech... well, that's just blatantly unconstitutional, and the FTC knows it would lose any such case. It would lose badly and embarrassingly. I'd be very surprised if the FTC chose to go through that just for the hell of it.

The entire framing of this section is like a fever dream from all of the failed lawsuits trying to challenge Section 230 by misreading three very important Supreme Court decisions, two of which don't say what many whining people think they say, and one of which they ignore. You'll see the two they misread here:

(a) It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech. The Supreme Court has described that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing a public forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

Packingham and Pruneyard are regularly cited by people who don't understand either, to argue that Twitter is a public forum. Courts have shot this down repeatedly. As they should, because neither case says what people claim they say. Packingham was a very important case, in which the Supreme Court said, quite clearly, that governments cannot pass a law that kicks people off the internet. That's it. Note that it applies to governments. It does not apply to private companies.

Pruneyard is a case about whether or not a particular shopping mall had become a public square, limiting the ability of the owners to kick people out. Anyone citing that case to argue that its ruling applies to social media has to ignore (1) the very specific fact pattern in Pruneyard, and (2) multiple cases since Pruneyard that have narrowed that decision down to the point that it appears to apply to just the shopping center in question. And this is made clear in the Manhattan Neighborhood Network case from just last summer, in which the 5 "conservative" justices made it clear that Pruneyard was a special case, and social media would not even come remotely close to meeting the "public forum" standard. For what it's worth, the 4 "liberal" judges dissented on the overall decision, but even their dissent makes it clear that they agreed with the fact that private companies do not turn into public forum bound by the 1st Amendment just by hosting conversations.

This is the case that the executive order totally ignores, despite being written by the most recent Trump appointee, Brett Kavanaugh, and which lays out in painstaking detail, that in order to meet the Pruneyard standard, a website would need to perform a function that had "traditionally and exclusively been performed by government." That's not Twitter. Indeed, Kavanaugh's opinion in the MNN case was a robust support for private property rights, and makes it clear why Trump's executive order is the exact opposite of that:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

In other words, the executive order's reliance on the the completely unrelated Packingham, and completely irrelevant Pruneyard cases, is just more nonsense.

Then the executive order tasks the Attorney General with hassling companies the President doesn't like:

(a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.

Of course, this is already happening with antitrust, and I doubt it will be any different here. Just more bad faith harassment over supposed political viewpoints.

The only thing in the executive order that is something that can be handled by an executive order is a petty and silly decision to maybe, kinda have the federal government stop buying ads on platforms the President dislikes. Except it doesn't even say that. The title says that it's a "prohibition on spending federal taxpayer dollars on advertising with online platforms that violate free speech principles" but that's only the title. The actual details beneath that heading do not say that anyone has to stop buying ads. It just asks federal agencies to waste their time to account for how much they're spending on advertising on these platforms and "assess." That might lead to reduced advertising in practice, but it is not ordered here.

The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms supported, the viewpoint-based speech restrictions imposed by each online platform, an assessment of whether the online platform is appropriate for such agency’s speech, and the statutory authorities available to restrict advertising dollars to online platforms not appropriate for such agency’s speech.

This, of course, seems kind of pointless and petty. It's unlikely to do very much, but if it does lead to less advertising, it just harms the ability of the federal government to get out the messaging it wants to get out, so if the President wants to shoot himself in the foot that way, well, that's his call. Of course, you can pretty much bet that as this is happening, the President's re-election campaign is spending gobs and gobs of money on these very same platforms.

Anyway -- this is all a distraction. The polls currently don't look great for Trump and over 100,000 people are dead in large part due to Trump's own mismanagement of the COVID-19 pandemic. He doesn't want people talking about this, so he does something performative like this instead. It does get people talking about it, and he knows full well that his ignorant base of sycophantic followers will eat this up in the false belief that it actually means something and will somehow "take away" Section 230. It doesn't. It can't. It's nonsense.

Still, it's already working. I've already seen major media claiming that this is Trump "limiting" Section 230 or paring it back, and his fans are jumping up and down, even though the end result of this is not at all what they think it is. Don't be one of those foolish people.

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Posted on Tech & COVID - 27 May 2020 @ 4:04pm

Doctor With Rare Disease Crowdsourced His Own Cure, And Is Now Using That Network To Work On COVID-19

from the the-internet-to-the-rescue dept

A recent episode of NPR's Fresh Air ran an amazing interview with Dr. David Fajgenbaum, who was diagnosed years ago with the rare Castleman's Disease, about which very little information was known (and the general prognosis was grim). Fajgenbaum talks about how he ended up in hospitals believing that he was about to die five separate times (he even had his last rites read to him), but then set up his own organization to try to crowdsource a cure. He details the full story in his book that was published last fall, called Chasing My Cure.

The good news is through that crowdsourcing effort, called the Castleman Disease Collaborative Network (CDCN), they at least found a treatment that (for now...) appears to work for Fajgenbaum himself:

The biggest difference between this fifth time I nearly died and the previous four times is that, at this stage, I was engaged. And I had the ultimate date in mind, which is our wedding date, May 24, 2014 - in mind as the driver to say, I need to find something. I failed to respond to all these drugs. There's nothing left for me. But I have to make it to May 24, 2014. And so thankfully, this combination of seven chemotherapies saved my life.

And when I got out of the hospital, I was able to go back to all those samples I'd been storing on myself and performed a series of experiments where, from within my experiments, I found this pattern that suggested this one communication line in the immune system called the mTOR pathway was highly activated. And what was so exciting about finding this communication line turned on is that there is a drug that was developed 30 years ago that's really good at turning it off. It's called sirolimus.

And just knowing that this pathway was on did not guarantee that blocking it would work and that taking this drug would save my life. In fact, the immune system is a very finicky system. And basically, turning off this communication line could have actually caused even more problems. No one knew because this drug had never been given to a Castleman disease patient before.

But really, knowing that I needed to try something if I wanted to make it to our wedding date, I decided to take the leap of faith and to start taking this drug as the first patient with my disease ever to take sirolimus back in early 2014. And amazingly, thankfully, I was able to make it to Caitlin and I's wedding date. And you wouldn't think this is too important, Dave, but my hair grew back just in time.

He admits that the treatment that works for him has not been shown to work for everyone with Castleman's -- in fact, it appears to help only about 1/3 of those treated with it. But just the fact that it's been helping some is worth noting.

And here's the really interesting part: as we've gone into this whole pandemic thing, many of the participants in the CDCN have noticed some similarities between the issues with Castleman's disease, and with what people are reporting about COVID-19. So they've been repurposing the crowdsourcing effort to work on COVID-19:

DAVIES: So the collaborative that you formed to try and share information and leads about treating Castleman is now focused on COVID-19. I mean, this is obviously an urgent public health matter. Did you see similarities between Castleman disease and COVID-19 that made this a good fit?

FAJGENBAUM: That's right. So early on in this pandemic, it became clear that the most deadly aspect of COVID-19 is actually the cytokine storm that the virus ignites. And the cytokine storm that it ignites is almost identical.

While there are lots of different groups working on different ideas -- from vaccines to antibodies -- the CDCN is focused on what it does best: looking to see if there are FDA approved drugs out there that might have some useful effect here, and recognizing that the only way to really figure that out was to actually get the data (something very few others seemed set up to do):

And so with this similarity between - at the very basic mechanism, what drives the deadliness of COVID-19 is almost identical to what makes Castleman disease so deadly, it's these - the cytokine storm. That was one aspect of it. The second is that we know that drug repurposing is our best shot at identifying a drug that can help patients in the short-term, so a drug that's either already FDA-approved or a drug that is maybe experimental but is not yet approved for anything that could be repurposed for COVID-19. We knew that was our best shot.

And, Dave, I found myself, in early March, thinking to myself, I really hope that some research group out there that has experience studying cytokine storms and has experience doing drug repurposing will follow our blueprint and search for drugs that can be repurposed against this cytokine storm. And I was sitting there hoping that someone would do it.

And then I realized that I needed to listen to my own advice, and that if I'm going to hope that some research lab out there that has experience with cytokine storms and repurposing would turn their effort towards this, then I would need to turn my effort towards this. This is what we've been doing to chase my cure for these years. And we felt like we needed to do what we could in the fight against COVID-19.

The really incredible part here is that he notes that there's no official tracking of the various tests that doctors are doing, and that's a key aspect of what they've set up for doctors around the world:

I mean, you can basically think about the state that we're in right now is that doctors are trying all kinds of things - hydroxychloroquine, remdesivir and many other drugs. Yet there's no system in place to track what's working and what's not working. And so recognizing that this wasn't being done, we decided to build a database, what we called the CORONA database - COVID-19 Registry of Off-label & New Agents. So it's a database to track all of the drugs that have been used against COVID-19 to date 'cause we want to know everything that's been tried, and we want to see what's working and what's not working. And amazingly, almost 150 different drugs have already been tried against COVID-19. And of course, we hear about a handful of them, but there are a lot of others that have already been tried as well. And so we've created this giant database from - right now it's over 11,000 patients and growing - to collect data on every drug that's been used and so that we can really dig into what's working and what's not working.

And the second part of this equation is that you want to track what's being used, but then you also want to piece together all of the data that's emerging from labs around the world to try to map out what are maybe some new drugs that we could start trying to use? What are some new pathways from all of this data that we should start going after? And interestingly, from the state of - we're finding signals that are Castleman-like, basically. A number of the features that we're seeing in the COVID-19 data, these same features we see in Castleman disease.

Think about that first part for a second. In the past, if you wanted to have a database of how certain drugs were used to treat different diseases, and what the impacts of those treatments were, you'd probably need a government to set up a program -- with lots of bureaucracy and mess. But here, a doctor and some other interested researchers were able to set up their own such database on the fly and get a massive amount of data piped into it, from which they can do all sorts of (hopefully!) useful analysis.

This is not to say they're ignoring other approaches -- because these things work together. In the interview, it's mentioned that the crowdsourcing team at CDCN has combed through over 2,500 published papers to look for potential promising treatments.

Also important: they're being very open about all of this. While some keep insisting that we need to lock up successful treatments and ideas, Fajgenbaum recognizes the power of sharing information widely (the very root of crowdsourcing, after all):

You know, what we really want to do with this corona project is to map out everything that's being tried, to put in one place all of the studies that are being published, all of the data on every drug that's being tried so that other people can go to it and they can kind of decide for themselves what looks promising and what doesn't. We didn't build this to say this is the drug and that's not the drug; we built this to say this is where all the data is. If anyone wants to use the data, we have this very data-first approach. Anyone can use the data.

And from our perspective, we want to use the data to determine and to prioritize what drugs should go on to clinical trials. So the fact is, is that this drug is already being studied in randomized controlled trials, and that's all that we can really ask for. We want to use the database to say what's being given, what looks really promising and what should go forward to randomized controlled trial. We don't want to use the database to say this drug should be given or that drugs should not be given. So we're hopeful.

And actually, we put together a paper based on our first pass of analyses of the data and recently received favorable reviews. So hoping that that'll get published in peer-reviewed journal shortly and that we will be able to get the word out about this database. But the goal is not to say this is the drug that everyone should be on; the goal is to say these are the promising drugs. Let's make sure that we don't forget anything along the way because you're right - I think that we all have a tendency to jump on every major drug or every major headline. But we need to keep an eye on all the drugs that are being tried and make sure that we're doing this really systematically.

Once again, the ability for anyone to just setup and build something on the internet, without needing to ask for approval or go through some big bureaucratic process, may be helpful yet again, and hopefully the very open process of bringing in data, and sharing it outward, will lead to real breakthroughs.

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Posted on Free Speech - 27 May 2020 @ 10:16am

Trump, Twitter, And Free Speech

from the trump-impossibility-theorem dept

Content moderation at scale is impossible to do well. But, also content moderation of a world leader spewing blatant conspiracy theories may be just as difficult, and that's not even at scale.

We're only partway through this week, and Donald Trump has already created a textbook's worth of content moderation questions to explore. It started with Trump going nuts with a bunch of tweets about a blatantly disproved conspiracy theory regarding a young staffer of TV host Joe Scarborough from back when he was in Congress. That staffer, Lori Klausutis, died from an undiagnosed heart condition years ago. The police and coroner found no evidence of foul play. And suddenly Trump, who used to appear on Scarborough's show back in the day, decided to spew a bunch of utter nonsense hinting strongly at the blatantly false idea that Scarborough had something to do with Klausutis' death.

This is straight out of the Trump playbook. It is blatant false news (the accusation he likes to make about anyone who reports accurately on his activities). It is insane conspiracy mongering. It is hurtful. It is hateful. It is potentially dangerous. And it serves Trump in two distinct ways: as a distraction from his ongoing cataclysmic handling of the COVID-19 pandemic, and as part of his never-ending intimidation campaign against anyone in the media who dares to point out that the emperor has no clothes. As the Atlantic noted, this is malignant cruelty. It is disgusting.

Many people have been arguing that Twitter should shut down Trump's account or, at the very least, delete the tweets in question. Indeed, Klausutis' husband sent a deeply moving letter to Jack Dorsey begging him to remove the President's tweets:

I have mourned my wife every day since her passing. I have tried to honor her memory and our marriage. As her husband, I feel that one of my marital obligations is to protect her memory as I would have protected her in life. There has been a constant barrage of falsehoods, half-truths, innuendo and conspiracy theories since the day she died. I realize that may sound like an exaggeration, unfortunately it is the verifiable truth. Because of this, I have struggled to move forward with my life.

The frequency, intensity, ugliness, and promulgation of these horrifying lies ever increases on the internet. These conspiracy theorists, including most recently the President of the United States, continue to spread their bile and misinformation on your platform disparaging the memory of my wife and our marriage. President Trump on Tuesday tweeted to his nearly 80 million followers alluding to the repeatedly debunked falsehood that my wife was murdered by her boss, former U.S. Rep. Joe Scarborough. The son of the president followed and more directly attacked my wife by tweeting to his followers as the means of spreading this vicious lie.

I’m sure you are aware of this situation because media around the world have covered it, but just in case, here it is:

My request is simple: Please delete these tweets.

I’m a research engineer and not a lawyer, but I’ve reviewed all of Twitter’s rules and terms of service. The President’s tweet that suggests that Lori was murdered — without evidence (and contrary to the official autopsy) — is a violation of Twitter’s community rules and terms of service. An ordinary user like me would be banished from the platform for such a tweet but I am only asking that these tweets be removed.

I am now angry as well as frustrated and grieved. I understand that Twitter’s policies about content are designed to maintain the appearance that your hands are clean you provide the platform and the rest is up to users. However, in certain past cases, Twitter has removed content and accounts that are inconsistent with your terms of service.

I’m asking you to intervene in this instance because the President of the United States has taken something that does not belong to him — the memory of my dead wife — and perverted it for perceived political gain. I would also ask that you consider Lori’s niece and two nephews who will eventually come across this filth in the future. They have never met their Aunt and it pains me to think they would ever have to “learn” about her this way.

My wife deserves better.

The letter was first published in a NY Times article by Kara Swisher in which she, too, backs the idea that the tweets should be deleted. Swisher's article is carefully argued -- and she notes that Twitter is facing a Gordian knot (though, not quite sure that's the right metaphor) with no good solution. She points out that kicking Trump off Twitter is a non-starter. As she says, it "would be pointless and too drastic," and (perhaps more importantly), "the firestorm it would set off would alone be disastrous for Twitter to manage." She also feels that labeling the tweets as false wouldn't do very much at all (more on that in a moment...) and concludes that the best of a bunch of not-good options is to delete the specific tweets. As she notes, it would be different if this was just about two public figures, like Scarborough and Trump. But the inclusion of a non-public figure makes it much trickier.

I am supportive of the suggestion Mr. Klausutis makes in his letter to simply remove the offending tweets.

While the always thoughtful Mr. Dorsey has said previously that he has to hew to Twitter’s principles and rules, and that the company cannot spend all of its time reacting, its approach up until now results only in Twitter’s governance getting gamed by players like Mr. Trump, in ways that are both shameless and totally expected.

So why not be unexpected with those who continue to abuse the system? Taking really valuable one-off actions can be laudable since they make an example of someone’s horrid behavior as a warning to others. While it is impossible to stop the endless distribution of a screenshot of the tweets, taking the original ones down would send a strong message that this behavior is not tolerated.

I think that Swisher's analysis is thoughtful, but I come to a different conclusion. I think that deleting those tweets would set off a shit storm almost as big as closing Trump's account.

And to make that case, let's look no further than the second big content moderation case study that Trump has kicked off this week. Trump spewed some more of his usual nonsense, claiming that mail-in ballots would result in widespread voter fraud -- a laughable claim not supported by any of the data out there, including among states that already do universal mail-in ballots. Given Twitter's policies regarding misinformation directly around elections, as well as its recently launched tools to label certain tweets as misleading, Twitter (for the first time with a Trump tweet, but not the first time using this feature) put an additional note on Trump's tweet that simply said "Get the facts about mail-in ballots" and linked to a Twitter Moments page detailing the facts regarding mail-in ballots.

This is a pro-free speech approach to handling these matters. It's a "respond to bad speech with more speech" approach. Hell, even the notes on Trump's tweets were incredibly tame. I've seen other ones that directly claim that certain tweets are "misleading." The note on Trump's tweet didn't even say that -- it just said "get the facts" (indeed, I saw some people who thought the wording of the notification almost looked like it was in support of Trump's tweet.

And yet the crybaby in chief still threw a ridiculously stupid temper tantrum:

This is ridiculous on many, many different levels. First off, and most importantly, adding more speech is literally the opposite of "stifling free speech." Second, all they're doing is providing an opinion and more information to a statement by the President -- which is itself quintessential protected free speech under the 1st Amendment. Third, because of that, there's nothing that the President can do about this, no matter how big a temper tantrum he throws. Fourth, the idea that providing factual information is "interfering with the election" seems to be an "I know you are but what am I" kind of childish taunt from the President.

And yet, the President's usual lapdogs immediately went to work in support of the Emperor and his missing clothes. Spineless Marco Rubio jumped up with some nonsense about "forums" and "publishers" that suggests that he is either ignorant of the law, or simply playing dumb to get a pat on the head:

Twitter is already held legally liable from content that they themselves publish. So if they added something to a tweet, they would be liable if that content violated any law. But they are not liable for moderation decisions and it would be totally counterproductive if they were.

Hell, if Rubio or others removed Twitter's Section 230 protections, it seems quite likely that Trump's tweets about Klausutis would be among the first removed, because without that protection, the site might face legal liability.

But all this brings us back around to the question of what Twitter should do in this situation. If merely adding a link to more information causes Trump and his cadre of yes-men to freak out to this level, imagine the insanity that would rain down on us if Twitter actually did delete one of his tweets. It seems highly unlikely that it would create a good outcome. Everyone who already thinks Trump is a giant man-baby who shouldn't be anywhere near the halls of power wouldn't be any better off. But Trump and his fans would be able to play the victim, which is about the only role he seems able to play. There's no need to give him that martyrdom. It would just entrench the false belief that Twitter is targeting a particular political viewpoint, and do little to help anyone.

Again: there are no good answers here. Trump is spewing utter nonsense that is deliberately malicious and harmful to people. But he does remain the President. His comments won't disappear even if his tweets do. And the utter shit storm that would be unleashed by deleting those tweets would drown out whatever flicker of excitement it would create among Trump haters. It's a short-term feel-good move with massive long-term consequences. Twitter should stand its ground here, even while recognizing that Trump is going to continue to work the refs to make sure more of his nonsense is left unimpeded. But taking down one of his tweets seems only likely to make things worse, not better.

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Posted on Techdirt Greenhouse - 27 May 2020 @ 9:00am

Introducing The Tech Policy Greenhouse: Let's Have Thoughtful Conversations About The Biggest Tech Policy Challenges

from the conversations-that-can-go-places dept

Today we're introducing something very new: the Tech Policy Greenhouse. This is a project that I've been working on for about two years now, and I'm both thrilled and relieved to finally be getting it out the door. It starts from this basic premise: many of the biggest issues facing technology and innovation today are significant challenges that have no easy answer. Every possible approach or solution (including doing nothing at all) has tradeoffs. And yet very few people seem willing to admit that, as admitting to tradeoffs in policy proposals is seen as a sign of weakness or giving in. But the issues facing innovation policy today are too big and too important to not have a truly open discussion.

And having a truly open discussion about difficult policy questions means a lot more than the way the media has traditionally held these conversations: pitting two sides against one another and letting them argue it out. That rarely brings enlightenment, and mostly seems to just involve everyone digging in to their previously held beliefs. Having an open discussion about big challenges with no easy answers means being willing to dive deep into details, exploring ideas that might make you uncomfortable, and testing hypotheses that sometimes seem absurd on first glance -- but then being open to the feedback, ideas, improvements, and critiques raised about the ideas.

The Tech Policy Greenhouse is an attempt to have those discussions. Think of it as something of an online symposium, where we will be bringing in a variety of experts to give their thoughts on these issues, but hopefully with the humility to recognize that what is being discussed is difficult, and understanding all of the variables at play is an impossibility. Part of this means that we'll be publishing stories that challenge us -- including some arguments that I personally disagree with -- but which we believe are being presented in good faith and for the purpose of open discussion and debate, in the hopes that whatever future policy proposals and decisions are made, they are better informed by understanding a variety of points of view, a variety of proposals, and a variety of ideas about what might work.

This does not mean that the Tech Policy Greenhouse will or should be a clearing house for nonsense or half-baked ideas. There are certainly plenty of those. Instead, the goal is to get the best minds out there, willing to discuss difficult-to-impossible problems in a way that allows for greater understanding and greater humility about the eventual policy choices that are made.

To help with this project, we are pleased that we have help from two excellent editors, whose names should be well recognized around here: Karl Bode and Mike Godwin. Karl, of course, has long been a writer for Techdirt, as well as a number of other tech, telco, and policy publications -- and has agreed to take on a more involved editorial role for Greenhouse. Godwin, of course, is so internet-famous that he has an entire "law" named after him. He was also the first lawyer EFF hired, as well as the General Counsel for the Wikimedia Foundation. His insights into all things related to tech policy are unmatched and always thought-provoking.

For readers of Techdirt, you will see the new Greenhouse posts directly in the main feed, though they will be visually distinct (you may notice they look a bit... greener). We will continue to post regular Techdirt posts and content in the regular format, but the green posts will be from various experts and will be based around a theme that we are exploring at the time. Our plan is to roll out a few themes each year (the exact pace we'll figure out along the way). There is also now a Greenhouse tab at the top, if you want to see only the Greenhouse posts.

There is one other change regarding the Greenhouse posts. While they will have our regular comment area, there will also be a separate "Featured Discussion" area, in which those who are participating in the Techdirt Greenhouse project will be encouraged to comment and discuss the other posts in the series. This is very much an experiment that might not work, but we're excited to test it out. If the panelist discussion is happening, you will see it between the post and the regular comment section.

Our inaugural topic is digital privacy, because we decided to jump right into the deep end of extremely important, but controversial, problems with no easy solutions. Karl will introduce the overall topic in another introductory post, followed by Godwin's introduction regarding his thoughts on why the privacy debate needs to be reframed. And then, starting tomorrow and over the next few weeks, you'll see a variety of Greenhouse posts from experts interspersed among the regular Techdirt content. We are also open to more such posts, so if you have expertise and would like to contribute, please feel free to contact us.

Also, I should address the elephant in the greenhouse: this project is currently sponsored by Google, Twitter, and Protocol Labs. For some, this will discredit the entire project. We set out to try to launch this project with only grants from foundations and without corporate sponsorship, but so far have not been able to find foundations willing to support it (if you know of any who might be interested, or if you happen to work for one, please also reach out and let us know). Given that unfortunate lack of interest from foundations so far, we were happy that these three companies were willing to step up and sponsor the launch of this effort which, again, is a few years in the making. From the beginning, we were upfront that the whole point of this project is to discuss challenging tech policy questions, and that if any company sponsored this project, they would probably disagree heavily with some of the content, but that we felt that enabling those open and thoughtful discussions was good for the future of innovation itself -- and all three sponsors seemed to recognize the value of the conversations, even when some of the content might go against the company's own interests (indeed, the interests of the three sponsors are not aligned with one another in many cases, and sometimes diametrically opposed).

Still, if this concerns you, I only ask that you judge the content on its own merits. The whole point of this project is to take us all out of our comfort zone. I hope that people everywhere, no matter how they feel about various tech policy questions, can at least recognize that thoughtful conversation and debate are important to coming up with better policy overall. I look forward to this inaugural discussion on privacy -- and I hope everyone here will welcome it.

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Posted on Techdirt - 26 May 2020 @ 6:42pm

A Mess In The House: Dirty Pool As Rep. Schiff Inserts Loophole To Help The FBI Spy On You

from the doesn't-the-4th-amendment-matter dept

As the debate continues over the renewal of some Patriot Act provisions for NSA surveillance techniques, the House now has a chance to correct a failure by the Senate, by one measly vote, to require a warrant for the FBI to go sifting through your internet histories that the NSA scooped up along the way. The intelligence community refuses to reveal how often this is done, but Senator Wyden is indicating that it's a lot more than you think -- and he's been right pretty much every time he's made those suggestions.

It's now up to the House, and while Rep. Lofgren had a version of the warrant requirement amendment, some petty political squabbling from Democratic leadership threatened to quash it -- mainly by Rep. Adam Schiff inserting a massive loophole to allow for more warrantless surveillance. Earlier on Tuesday it was reported that, after a long weekend of haggling, it appeared that a vote will be allowed on Lofgren's Amendment and that the language had been cleared up to the point that even Senator Wyden backed it:

“After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” Lofgren, a Democrat of California, said. “Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant,” she added.

[...]

The Lofgren-Davidson amendment will require the FBI to obtain a warrant even if there’s only a possibility that the data it seeks is tied to a U.S. person. If the government wishes to access the IP addresses of everyone who has visited a particular website, it could not do so without a warrant unless it can “guarantee” that no U.S. persons will be identified.

Wyden's support was seen as critical, because if he felt that Schiff had torpedoed the Amendment he wouldn't support the amendment. So the original reports saying that he was on board, was a good sign. He even put out a detailed statement in support.

Then, the full language came out, and Schiff appeared to torpedo the whole deal anyway by telling the NY Times that the amendment didn't really do anything anyway:

But in his own statement, Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders "to seek to obtain" an American's internet information.

Soon after Wyden pulled his support of the bill, realizing that Schiff was making a ridiculous interpretation to allow for more spying on American's internet browsing habits:

“The House Intelligence Committee chairman’s assertion that the Lofgren-Davidson amendment does not fully protect Americans from warrantless collection flatly contradicts the intent of Wyden-Daines, and my understanding of the amendment agreed to earlier today. It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.

Again, however, I remain perplexed about Schiff trying to water this down. Remember, Schiff was literally the House manager of the Trump impeachment campaign, and more than anyone, Schiff has a front row seat to how this President has politicized all aspects of government at his disposal. You would think that's a good enough reason to pass a bill that would protect American citizens from being spied on by the FBI without a warrant (as, I should mention, the Constitution requires). Why would that be at all controversial? I get that Schiff comes from a background where he has traditionally had a kneejerk support for greater law enforcement and intelligence powers -- but given what he knows about this administration, it's crazy that he wouldn't want to restrict those powers in the hands of someone who still regularly seems to threaten his political opponents, including Schiff.

Of course, as all of this was happening, the President himself urged his supporters in Congress to vote against the bill anyway, so who the hell knows what's going on any more anyway. What is clear is that Congress had a real chance to make sure the FBI had to live under the 4th Amendment, and it appears that it has failed to do so, so far.

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Posted on Free Speech - 26 May 2020 @ 3:50pm

Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

from the they-deserve-to-be-in-the-trash dept

It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court.

There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.

For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.

The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?

It is undisputed that the Eastern District of Virginia is not Nunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "is a citizen of California").) That Nunes "works at the Capitol within a few minutes' drive of Virginia," (id.), and "participates in oversight of the U.S. national security apparatus, including the intelligence-related activities of seventeen agencies, departments, and other elements of the United States Government, most of which is located in Virginia,"... does not alter this fact. Additionally,... the offending act at issue--the publication of the Article--did not occur in Virginia. The Article was researched, written, and published in New York and, to some extent, Washington, D.C. Its subject matter has nothing to do with Virginia, and the Eastern District of Virginia is thus not the nucleus of operative facts.

The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."

The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:

CNN argues that the witness convenience factor "squarely supports transfer" because Ward, Cuomo, and Bondy all reside in New York.... That all three key witnesses reside in New York favors transfer.

The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY.

One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.

Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:

... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."...

The order to transfer the Washington Post case to DC is pretty similar:

The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there...

Also, there's the fact that Nunes' lives and works in DC:

That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia.

The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:

Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum.

As the judge later notes: "There is no logical connection between the events in this case and this district."

It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.

Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?

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Posted on Techdirt - 26 May 2020 @ 12:13pm

How A Feud Among Wolf-Kink Erotica FanFic Authors Demonstrates What The Copyright Office Got Wrong In Its DMCA Report

from the wrong-wrong-wrong dept

Last week, we wrote about one of the biggest, glaring flaws in the Copyright Office's long awaited report on the DMCA 512's safe harbors was its refusal to recognize how frequently it's abused to take down legitimate works. As if on cue, over the weekend, the NY Times has quite the story about a feud in (I kid you not), wolf-kink erotica fan fiction, that demonstrates how the DMCA is regularly abused to punish and silence people for reasons that have nothing to do with copyright.

The full NY Times article is worth reading, describing a still ongoing legal fight between two fanfic authors who wrote stories building on some apparently common tropes in the wolf-erotica fiction genre. One author sued another, but, as the article notes, all of the supposedly "copied" elements are common throughout the wider genre:

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage. In both books, the women try and fail to suppress their pheromones and give in to the urge to mate. In both books, the couples sniff, purr and growl; nest in den-like enclosures; neck-bite to leave “claim” marks; and experience something called “knotting,” involving a peculiar feature of the wolf phallus.

[....]

It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.

As the article goes on to note, this whole "Omegaverse" concept spun out of fanfiction based on the TV show "Supernatural." And then a bunch of common tropes emerged:

Some Omegaverse stories involve lycanthropes (werewolves), vampires, shape-shifters, dragons, space pirates, others feature regular humans. But virtually all Omegaverse couples engage in wolflike behavior. Alphas “rut” and Omegas go through heat cycles, releasing pheromones that drive Alphas into a lusty frenzy. One particular physiological quirk that’s ubiquitous in Omegaverse stories, called knotting, comes from a real feature of wolves’ penises, which swell during intercourse, causing the mating pair to remain physically bound to increase the chance of insemination.

Normally, in copyright law, this should mean that there is no infringement. Either you have the idea/expression dichotomy come into play (the same idea expressed differently is not infringing as the idea itself cannot be covered by copyright) or there's the concept of scenes a faire, in which a story in a particular genre needs those features to be a part of that genre.

However, even so, the DMCA has been weaponized here:

Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately.

See that? Merely by claiming infringement using the DMCA's 512 notice-and-takedown provisions, one author was able to literally delete a bunch of books from most major book stores. Doesn't that seem like a problem? The Copyright Office barely acknowledges it. But here it's turned into a massive fight.

In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.

“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”

While Ellis did file a counternotice, the Times says that online stores were incredibly slow to put the books back (some took months).

A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.

The author, Ellis, eventually sued over the takedown notice, claiming it was improper (and also that it was defamatory -- which, seems like a SLAPP suit on its own, unfortunately). However, the author accusing Ellis of infringement seems pretty big into SLAPPing as well:

Two years later, Ms. Cain and her publisher filed D.M.C.A. takedown requests against Ms. Ellis’s first two “Myth of Omega” books. Ms. Cain also asked her publisher to file an infringement notice against an Ellis novel that hadn’t even been released yet. “Book three needs to come down too. I don’t want her to make any more money off this series,” Ms. Cain wrote to Blushing Books in April, according to a court filing.

That's... not how any of this works. The NY Times says that Cain's publisher caved in and admitted there was no infringement and apparently paid up to settle with Ellis, but Cain has kept the case going. She should lose. By the way, if you want to dig into the details of the actual lawsuit, you can find the docket here. The NY Times does not appear to link to it.

But, as the article makes very, very clear, the DMCA's notice-and-takedown process has been weaponised repeatedly. If it's so obvious that it's happening in such a niche area as "wolf-kink erotica fan fiction," you know it's happening in many other places as well. It seems ridiculous that the Copyright Office felt it wasn't worth paying any attention to, and assuming that the only problems with DMCA 512 was that it didn't take down enough content fast enough.

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