As someone in the plus of the LGBTQ+ community, I'm not thoroughly convinced that this decision is good in any sense of the word. Take this extreme example: Suppose there is someone who has depression and is currently struggling. This person goes to a therapist who tells them to jump off a bridge. The person then does so and dies. Would the therapist be shielded by the First Amendment against any civil or criminal penalties, including the loss of their medical license? After all, telling anyone to jump off a bridge is a form of speech. I would hope you would recognize that the First Amendment cannot extend its protection to that therapist, especially when there is a duty of care involved.
I recognize that this case is not that, and rarely do cases develop in such extremes. But when every medical agency and scientific study concludes that conversion therapy cannot achieve its stated goal of changing one's sexual orientation or gender identity, and that it in fact results in real harm to those going through it, it's hard to say that the government shouldn't be able to curtail it due to the First Amendment.
As far as your point that this will stop a similar law in Texas that forbids therapists from affirming LGBTQ+ identities, I don't share in that optimism, especially given this Supreme Court. It first has to go through lower courts, including the court of appeals for the (checks notes) Fifth Circuit, which doesn't instill my confidence that they will apply this Supreme Court precedent and reject Texas's law as unconstitutional. And when it inevitably goes to the Supreme Court (even assuming they take up the case), do you really think the 6-3 conservative super majority won't contradict themselves and find some reason to say that Texas's law is, in fact, constitutional? They seem more interested in winning the current culture wars the Christians on the right are waging than in upholding their own precedents.
I've read this whole article with an open mind, but I still don't think this decision will hold up well in the coming years and decades. I agree with Arianity, who brought up some good points on this as well. And my heart breaks for the LGBTQ+ kids born in non-affirming homes, who now can be subjected to some form of conversion therapy. I tend to agree with Techdirt in general on most things, but this time, I feel like we must agree to disagree.
I get that, in some sense, this makes a platform liable for the content it hosts, but this is not suddenly a world where every single design decision will result in a lawsuit.
Sure, not every decision made will result in a lawsuit, but if discussion on weighing the risks and benefits of making one decision over another can be recontextualized as, "See? They knew there could be a risk, and they did it anyway," that's going to chill any future discussion. Any such discussion carries the risk that if any affected party decides to sue, that conversation can be brought up as evidence, regardless of whether they actually acted with malicious intent.
...a platform is not liable for a person positing something defamatory or otherwise illegal. What they are liable for is, given the existence of unsafe material, if they design their product in a way that causes harm, then they are potentially liable.
I think this underestimates the effects of using any sort of algorithm to sort content. I guarantee you your Facebook feed is different from mine, and it's not just because we know different people. We have different interests and engage with different kinds of content. And when you engage with certain kinds of content, the algorithm picks that up and shows you more of that content in the future. Stop interacting with that kind of content, and you'll slowly but surely see less and then nothing at all.
Also, remember that what could be considered "harmful" to you is not necessarily harmful to me, and vice versa. It's not as simple as saying, "The algorithm was designed in a way that harmed this user, therefore you're at fault for harming them." As Mike pointed out, the algorithm, design features, etc., are dependent on both the content presented and how the person seeing it interacts with it.
A lawsuit is a lawsuit, regardless of the grounds and the defenses. Bringing a suit against a corporation that loses because of 230 is STILL BRINGING A LAWSUIT. Having an additional defense is not “procedural” it is legal. You still need to prosecute the suit.
A lawsuit is just a lawsuit when it's against giants like Meta, YouTube, etc. But what about the little guys? What about new startups? Heck, what about Techdirt's comment section? Lawsuits can devastate new and small platforms. Section 230 can be pointed to as a law that says, "We can't be held liable for another user's content posted to our site", and the lawsuit is dismissed at the motion to dismiss. Almost any other grounds to win the case (First Amendment, lack of causal connection to the case, etc.) can only be dispositive at a later stage in litigation.
That means you have to go through discovery, and legal fees quickly skyrocket. And even if they win, there's no guarantee that they'll survive. We're talking about the difference between legal fees in the hundreds of dollars and legal fees in the tens of thousands of dollars (if not more). And that's not even accounting for the cost of appeals.
You don't even have to take my word for it. Granted, the circumstances are different, but consider Veoh, a video-sharing site that could have easily rivaled YouTube. Veoh was sued for copyright infringement on their platform. Section 230 doesn't apply to IP laws, but the DMCA does. Crucially, though, it's not as clear-cut as "We can't be held liable" like Section 230. It requires going through discovery. YouTube went through a similar legal case, but they were bought out by Google at that point, so the financial burden wasn't as great as Veoh, which remained independent. YouTube and Veoh both won their lawsuits, but the cost of litigation proved too much for Veoh, and so it had to shut down. YouTube is still going.
So, whether you categorize it as just procedural or a legal defense, the difference is the cost involved. For tech giants like YouTube and Meta, it's pocket change. For new startups and small operations, the difference is whether they can afford to continue operating after the litigation has concluded, assuming they're victorious in court.
I guess I'm in the minority here... I actually really like reading the history posts. I haven't been reading Techdirt regularly as long as other people here have, so it's interesting to see the headlines of the past.
And while I applaud the winner highlights for the Public Domain Jam, I rarely read them and just wait for the history posts to return. I've just never been interested in the contest, but I know other people like it. And I really would miss the history posts if they went away completely.
I also like the comment posts. It's nice to see other people's remarks on what's going on. I wouldn't change anything about those posts.
If there’s a potential positive here, it’s that nobody at Ellisons’ companies appear particularly competent. Bari Weiss was hired to convert CBS into a ratings-friendly, autocrat coddling trolling and propaganda farm, and the result as been broadly disastrous.
Gotta slightly disagree there. Ellison and Weiss have competently gutted CBS News to appease the felon-in-chief, from killing a critical 60 Minutes story to ending The Late Show for "financial reasons", to name a few things. The only reason this operation is failing is because the majority of people don't like what they've been doing and have jumped ship to watch other networks.
Needless to say, I'm not too pleased with what's about to happen to CNN in the next few months because of this deal. If this track record holds, there will be one less network willing to stand up to this corrupt administration, and I'm not here for that. Megamergers like this are never good in terms of increasing competition, but this one feels painfully worse because of all that has transpired to get this far.
But medically speaking, we all can agree we should try to find cures for cancer, malaria, and COVID-19. However, we should not try to find a cure to autism. In any case, I do agree that Chlorine Dioxide is useless in treating, much less curing, any of the above conditions.
Conspiracy Theorist: I discovered that 2 can be equal to 1, and I have proof!
Every mathematician: But if a=b, a-b=0. And as you can’t divide by zero, this proof is invalid.
Conspiracy Theorist: I have been silenced and kicked out of the mathematics community!!
Let me start out by saying I am liberal, progressive even, and I am appalled by all the wrongs done by the current administration. However, I'm actually not all that surprised that two liberal justices seem to be favoring the copyright maximalist interpretation of the DMCA. After all, the late liberal icon Ruth Bader Ginsburg wrote some problematic opinions when it came to copyright law while she was alive. And while I tend to hold very liberal and progressive views, I will admit that a lot of arguments against copyright maximalism (including some I agree with) tend to read from an originalist, conservative lens.
While not at issue in this case, consider the duration of copyright protection. How can the ever-lengthening duration of copyright and even bringing public domain works back under copyright protection square with how the original founders' intent of the phrase "limited times" that exclusive rights can be secured for? How does enforcing the copyright of a dead man incentivize that man to create more works? How does longer and longer copyright durations still "promote the progress of science" if it's so long that the culture you grew up with will almost certainly never enter the public domain while you're alive?
That's not to say there aren't liberal ways to argue against copyright maximalism, but I'd argue, by contrast, that copyright maximalism can only be constitutionally understood from a liberal lens. If the US Constitution is a living document that can be interpreted through a modern lens, then suddenly, "limited times" means that as long as copyright doesn't last forever, it's constitutional. All the other questions don't matter. Congress can even bring public domain works back under copyright protection as long as the duration of that new copyright still lasts for a "limited time". If Congress wants to retroactively extend copyright for 300+ years, who are we to tell them they can't? Such ideas would make originalists shudder at how this could not violate the copyright clause, but liberals are more willing to give the interpretation enough breathing room to defer to Congress to make such decisions.
People keep thinking this administration is pulling the US into a dystopia a la 1984. While that's very much true, it's also true from stories like this that we're also being pulled into the world of Idiocracy!
I miss the days when the biggest issues of censorship were whether Universal broke the law in taking down a dancing baby video for copyright reasons. Now, it's cancelling late-night shows because (checks notes) the President doesn't like what they say about him and using the FCC to threaten broadcasters' licenses if they don't comply...
This is one more reason we need AI training to either be considered a non-copyright-related event or a fair use of copyrighted material. Declaring training as infringing and setting up a licensing regime will only further centralize and entrench big tech, which can afford exorbitant licensing fees. Some AI opponents will say this is proof that AI is 100% bad, no matter how you slice it. But banning AI is not a good idea, either, nor is it practical at this point. AI technology is here to stay, and we need it to be more decentralized. That means not treating AI training as "piracy", even if publishers and the MAFIAA disagree.
I found another blog post that has slightly more details about what happened. On the day of the cancelled performance, the principal claimed it was due to parental complaints about the show being too "demonic". It was only when they were pressed for more details by the public that the copyright explanation came out. The blogger also opined as to what was so problematic that it turned the performance infringing:
Three students stated that no words of the text had been changed in any way. The only possible material in the production that might have given the licensor pause was that the production began with a wordless scene of the young women of Salem dancing in the woods at night, enacting what is described by dialogue in the text, an interpretive choice that was unlikely to have been in violation of the license since it altered not the text, the spirit nor the intention of the show.
Furthermore, it sounds like parents even called the licensing company responsible for granting licenses for The Crucible, and every rep pretty much claimed that it not only didn't sound like copyright infringement, but that they wouldn't even shut down infringing performances on such short notice.
And let me take this moment to remind you that the US's first copyright law had the preamble, "An Act for the encouragement of learning", and that the Constitutional underpinnings for such a law say the purpose of copyright is "to promote the progress of science and useful arts". School theater programs are the very place where children learn about theater and the arts (even if the "arts" mentioned in the Constitution is not referring to that kind of art). And as a former theater kid myself (who now is active in a local theater group), if this supposed copyright violation was what shut down the performance, it seems antithetical to everything copyright law supposedly stands for, and the only lesson kids will likely take away from this is certainly not one that will engrain a respect for copyright laws. And when the author is dead and the work is only a few decades away from being public domain, tell me how this benefits anyone? The playwright isn't going to be motivated to make more works because it was shut down, because he's dead. It makes me think the playwright is rolling over in his grave over this, but not due to the supposed unauthorized alteration of his work!
This is the same state government that decried ethically reporting teachers’ SSNs being hidden in the HTML source code of a state-run website as “hacking” and made a laughably bad ad doubling down on that nonsense. If right clicking on a website and clicking view source is a multi-step hacking process, then regulating content moderation online is permissible under the SCOTUS ruling that says the exact opposite. Up is down. Left is right. The sky is pink. Presidents are kings. All perfectly correct facts under Missouri’s state government logic!
The fact I figured it was second amendment-related before even reading the full article is not only sad, but it goes to show how predictable the right is these days.
Dismissing an ICE enforcement action that saw a Maryland man with protected legal status deported to El Salvador as an "administrative error"? No rights violations to speak of; nothing to see here... California taking its time to properly process concealed carry permit applications instead of granting them willy-nilly? Now THAT has gone too far! We must stop this infringement on people's constitutional rights!! 🙄
[I]t’s an active attempt to sweep serious actual violations under the rug.
So this administration is trying to cover up an already reported news story that's public knowledge? Man, the Streisand Effect is getting more and more selective!
I don't know what I found more surprising: Seeing Techdirt featured in a Last Week Tonight story, or reading the phrase (even if it was meant sarcastically) "Amy Coney Barrett is too woke". I never expected to see either, but here we are!
If Comcast and Charter were to merge, the combined company would actually be a monopoly. We have Spectrum (Charter) in my city, and the neighboring city has Comcast. They can pretend to be "not a monopoly" because technically, they're two competing companies (even though the neighboring city can't get Spectrum and my town can't get Comcast). But after this merger? Insert the Toy Story meme of Buzz Lightyear saying, "Monopolies, monopolies everywhere!"
I can’t believe a reputable nonprofit like the Electronic Frontier Foundation would be so brazen as to quote Mike Masnick’s Impossibility Theorem without seeking permission from him or paying TechDirt a dime in royalties! /s
I'm not as optimistic
As someone in the plus of the LGBTQ+ community, I'm not thoroughly convinced that this decision is good in any sense of the word. Take this extreme example: Suppose there is someone who has depression and is currently struggling. This person goes to a therapist who tells them to jump off a bridge. The person then does so and dies. Would the therapist be shielded by the First Amendment against any civil or criminal penalties, including the loss of their medical license? After all, telling anyone to jump off a bridge is a form of speech. I would hope you would recognize that the First Amendment cannot extend its protection to that therapist, especially when there is a duty of care involved. I recognize that this case is not that, and rarely do cases develop in such extremes. But when every medical agency and scientific study concludes that conversion therapy cannot achieve its stated goal of changing one's sexual orientation or gender identity, and that it in fact results in real harm to those going through it, it's hard to say that the government shouldn't be able to curtail it due to the First Amendment. As far as your point that this will stop a similar law in Texas that forbids therapists from affirming LGBTQ+ identities, I don't share in that optimism, especially given this Supreme Court. It first has to go through lower courts, including the court of appeals for the (checks notes) Fifth Circuit, which doesn't instill my confidence that they will apply this Supreme Court precedent and reject Texas's law as unconstitutional. And when it inevitably goes to the Supreme Court (even assuming they take up the case), do you really think the 6-3 conservative super majority won't contradict themselves and find some reason to say that Texas's law is, in fact, constitutional? They seem more interested in winning the current culture wars the Christians on the right are waging than in upholding their own precedents. I've read this whole article with an open mind, but I still don't think this decision will hold up well in the coming years and decades. I agree with Arianity, who brought up some good points on this as well. And my heart breaks for the LGBTQ+ kids born in non-affirming homes, who now can be subjected to some form of conversion therapy. I tend to agree with Techdirt in general on most things, but this time, I feel like we must agree to disagree.
I guess I'm in the minority here... I actually really like reading the history posts. I haven't been reading Techdirt regularly as long as other people here have, so it's interesting to see the headlines of the past. And while I applaud the winner highlights for the Public Domain Jam, I rarely read them and just wait for the history posts to return. I've just never been interested in the contest, but I know other people like it. And I really would miss the history posts if they went away completely. I also like the comment posts. It's nice to see other people's remarks on what's going on. I wouldn't change anything about those posts.
From Techdirt's Residential Packers Fan:
What do trademark bullying and the Chicago Bears have in common? They both still suck!!
But medically speaking, we all can agree we should try to find cures for cancer, malaria, and COVID-19. However, we should not try to find a cure to autism. In any case, I do agree that Chlorine Dioxide is useless in treating, much less curing, any of the above conditions.
What conspiracy theorists like Kory sound like, according to math
Conspiracy Theorist: I discovered that 2 can be equal to 1, and I have proof! Every mathematician: But if a=b, a-b=0. And as you can’t divide by zero, this proof is invalid. Conspiracy Theorist: I have been silenced and kicked out of the mathematics community!!
Let me start out by saying I am liberal, progressive even, and I am appalled by all the wrongs done by the current administration. However, I'm actually not all that surprised that two liberal justices seem to be favoring the copyright maximalist interpretation of the DMCA. After all, the late liberal icon Ruth Bader Ginsburg wrote some problematic opinions when it came to copyright law while she was alive. And while I tend to hold very liberal and progressive views, I will admit that a lot of arguments against copyright maximalism (including some I agree with) tend to read from an originalist, conservative lens. While not at issue in this case, consider the duration of copyright protection. How can the ever-lengthening duration of copyright and even bringing public domain works back under copyright protection square with how the original founders' intent of the phrase "limited times" that exclusive rights can be secured for? How does enforcing the copyright of a dead man incentivize that man to create more works? How does longer and longer copyright durations still "promote the progress of science" if it's so long that the culture you grew up with will almost certainly never enter the public domain while you're alive? That's not to say there aren't liberal ways to argue against copyright maximalism, but I'd argue, by contrast, that copyright maximalism can only be constitutionally understood from a liberal lens. If the US Constitution is a living document that can be interpreted through a modern lens, then suddenly, "limited times" means that as long as copyright doesn't last forever, it's constitutional. All the other questions don't matter. Congress can even bring public domain works back under copyright protection as long as the duration of that new copyright still lasts for a "limited time". If Congress wants to retroactively extend copyright for 300+ years, who are we to tell them they can't? Such ideas would make originalists shudder at how this could not violate the copyright clause, but liberals are more willing to give the interpretation enough breathing room to defer to Congress to make such decisions.
People keep thinking this administration is pulling the US into a dystopia a la 1984. While that's very much true, it's also true from stories like this that we're also being pulled into the world of Idiocracy!
I miss the days when the biggest issues of censorship were whether Universal broke the law in taking down a dancing baby video for copyright reasons. Now, it's cancelling late-night shows because (checks notes) the President doesn't like what they say about him and using the FCC to threaten broadcasters' licenses if they don't comply...
This is one more reason we need AI training to either be considered a non-copyright-related event or a fair use of copyrighted material. Declaring training as infringing and setting up a licensing regime will only further centralize and entrench big tech, which can afford exorbitant licensing fees. Some AI opponents will say this is proof that AI is 100% bad, no matter how you slice it. But banning AI is not a good idea, either, nor is it practical at this point. AI technology is here to stay, and we need it to be more decentralized. That means not treating AI training as "piracy", even if publishers and the MAFIAA disagree.
Stopping theater kids really promotes progress!
I found another blog post that has slightly more details about what happened. On the day of the cancelled performance, the principal claimed it was due to parental complaints about the show being too "demonic". It was only when they were pressed for more details by the public that the copyright explanation came out. The blogger also opined as to what was so problematic that it turned the performance infringing:
Furthermore, it sounds like parents even called the licensing company responsible for granting licenses for The Crucible, and every rep pretty much claimed that it not only didn't sound like copyright infringement, but that they wouldn't even shut down infringing performances on such short notice. And let me take this moment to remind you that the US's first copyright law had the preamble, "An Act for the encouragement of learning", and that the Constitutional underpinnings for such a law say the purpose of copyright is "to promote the progress of science and useful arts". School theater programs are the very place where children learn about theater and the arts (even if the "arts" mentioned in the Constitution is not referring to that kind of art). And as a former theater kid myself (who now is active in a local theater group), if this supposed copyright violation was what shut down the performance, it seems antithetical to everything copyright law supposedly stands for, and the only lesson kids will likely take away from this is certainly not one that will engrain a respect for copyright laws. And when the author is dead and the work is only a few decades away from being public domain, tell me how this benefits anyone? The playwright isn't going to be motivated to make more works because it was shut down, because he's dead. It makes me think the playwright is rolling over in his grave over this, but not due to the supposed unauthorized alteration of his work!I’m not surprised…
This is the same state government that decried ethically reporting teachers’ SSNs being hidden in the HTML source code of a state-run website as “hacking” and made a laughably bad ad doubling down on that nonsense. If right clicking on a website and clicking view source is a multi-step hacking process, then regulating content moderation online is permissible under the SCOTUS ruling that says the exact opposite. Up is down. Left is right. The sky is pink. Presidents are kings. All perfectly correct facts under Missouri’s state government logic!
I’m somewhat of an Apple fan, and even I must admit…
”Think different” was meant to be an ad slogan about Apple’s technological ethos, not a confession of how they choose to “comply” with court orders!
The fact I figured it was second amendment-related before even reading the full article is not only sad, but it goes to show how predictable the right is these days. Dismissing an ICE enforcement action that saw a Maryland man with protected legal status deported to El Salvador as an "administrative error"? No rights violations to speak of; nothing to see here... California taking its time to properly process concealed carry permit applications instead of granting them willy-nilly? Now THAT has gone too far! We must stop this infringement on people's constitutional rights!! 🙄
I don't know what I found more surprising: Seeing Techdirt featured in a Last Week Tonight story, or reading the phrase (even if it was meant sarcastically) "Amy Coney Barrett is too woke". I never expected to see either, but here we are!
They're not even pretending anymore...
If Comcast and Charter were to merge, the combined company would actually be a monopoly. We have Spectrum (Charter) in my city, and the neighboring city has Comcast. They can pretend to be "not a monopoly" because technically, they're two competing companies (even though the neighboring city can't get Spectrum and my town can't get Comcast). But after this merger? Insert the Toy Story meme of Buzz Lightyear saying, "Monopolies, monopolies everywhere!"
I can’t believe a reputable nonprofit like the Electronic Frontier Foundation would be so brazen as to quote Mike Masnick’s Impossibility Theorem without seeking permission from him or paying TechDirt a dime in royalties! /s