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It truly is stunning how every single bill that attempts to reform Section 230 appears to be written without any intention of ever understanding how the internet or content moderation works in actual practice. We've highlighted tons of Republican-led bills that tend to try to force websites to host more content, not realizing how (1) unconstitutional that is and (2) how it will make the internet into a giant garbage fire. On the Democratic side, the focus seems to be much more on forcing companies to takedown constitutionally protected speech, which similarly (1) raises serious constitutional issues and (2) will lead to massive over-censorship of perfectly legal speech just to avoid liability.The latest bill of the latter kind comes from Reps. Jan Schakowsky and Rep. Kathy Castor. Schakowsky has been saying for a while now that she was going to introduce this kind of bill to browbeat internet companies into being a lot more proactive in taking down speech she dislikes. The bill, called the Online Consumer Protection Act has now been introduced and it seems clear that this bill was written without ever conferring with anyone with any experience in running a website. It's the kind of thing one writes when you've just come across the problem, but don't think it's worth talking to anyone to understand how things really work. It's also very much a kind of "something must be done, this is something, we should do this" kind of bill that shows up way too often these days.The premise of the bill is that websites "don't have accountability to consumers" for the content posted by users, and that they need to be forced to have more accountability. Of course, this leaves out the kind of basic fact that if "consumers" are treated badly, they will go elsewhere, so of course every website has some accountability to consumers: it's that if they're bad at it, they will lose users, advertisers, sellers, buyers, whatever. But, that's apparently not good enough for the "we must do something" crowd.At best the Online Consumer Protection Act will create a massive amount of silly busywork and paperwork for basically any website. At worst, it will create a liability deathtrap for many sites. In some ways it's modeled after the idiotic policy we have regarding privacy policies. Almost exactly a decade ago we explained why the entire idea of a privacy policy is dumb. Various laws require websites to post privacy policies, which no one reads, in part because it would be impossible to read them all. The only way a site gets in trouble is by not following its privacy policy. Thus, the incentives are to craft a very broad privacy policy that gives sites leeway -- meaning they have less incentive to actually create more stringent privacy protections.The OCPA basically takes the same approach, but... for "content moderation" policies. It requires basically every website to post one:

As one of his last acts as Trump's FCC boss, former agency Chairman Ajit Pai released a rosy report claiming that America was making great strides in bridging the "digital divide." According to the report (pdf), 14.5 million Americans now lack access to broadband, down from 21.3 million one year earlier. This progress, Pai proclaimed, was directly thanks to his decision to effectively lobotomize the FCC's consumer protection authority at telecom lobbyist behest:

The strange flip-flop by Rockstar Games on being open and cool with its fans continues. By way of context and a bit of throat clearing, recall that Rockstar is both the company that whipped out the ban-hammer on Grand Theft Auto 5 players over the use of mods, and the company that paid out money to a modder that fixed that same games long loading times. In addition, Rockstar is both the company that happily used intellectual property to try to silence a documentary while also being the company that enthusiastically embraced gamers making short films out of GTA footage.In other words, when it comes to being open with the gaming and modding community surrounding its games, Rockstar has something of a dual personality. The restrictive side of the company is the one that showed up early in 2021 when a bunch of GTA fans managed to reverse engineer the source code for GTA3 and GTA: Vice City.

A few years ago, the Georgia Court of Appeals kept a lawsuit alive against Snapchat, brought by the parents of a victim of a car crash -- one supposedly encouraged by Snapchat's "speed filter." No Section 230 immunity was extended to Snapchat, which only made the filter available, but did not actually participate (other than as another passenger) in the reckless driving that resulted in the accident that left another driver permanently brain damaged.Removing this case to federal court most likely would not have helped. Another lawsuit against Snapchat over its "speed filter" has been allowed to move forward by the Ninth Circuit Court of Appeals. (via Ars Technica)This case involves another tragic car accident and the use of Snap's app and "speed filter." From the decision [PDF]:

Last week, the Oversight Board made its highest profile decision yet: upholding Facebook's suspension of Donald Trump, though with the caveat that it needs clearer policy reasons to make the suspension indefinite. Unsurprisingly, a whole lot of people have a whole lot of opinions on this, and we wanted to learn more about the decision from the source. Julie Owono is an Oversight Board member and the Executive Director of Internet Sans Frontières, and she joins us on this week's episode to discuss how this decision was reached and what it means for Facebook.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

It seems by now that public officials should know that they cannot block critics on social media if they are using their social media accounts for official business. This was thoroughly established the Knight v. Trump case, where the court made it clear that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. Yet over and over again elected officials seem to ignore this.Alexandria Ocasio-Cortez was sued over this, as was Marjorie Taylor Greene (both of them eventually settled and agreed to unblock people).Last month, controversy prone Texas Attorney General Ken Paxton was sued over the same thing (again by the Knight First Amendment Institute). As the lawsuit notes, many of the people Paxton blocked found themselves in that situation after they replied to Paxton by reminding him of the still ongoing criminal charges he's been facing his entire time in office. Basically, if you remind Paxton of the fact that he's facing criminal charges, you had a decent shot at getting blocked.However, last week, Paxton unblocked the 9 users who sued him, perhaps realizing he was clearly going to lose this case. Of course, it looks like he only removed the blocks on those 9 individuals and kept up the blocks on others. Law professor Steve Vladeck (who is at the University of Texas Law School) noted that he's still blocked, even if the plaintiffs in the lawsuit are not:

Well, someone finally said the quiet part loud: some government officials actually believe the only people who need, want, or use encryption are criminals. Here's Asha Barbaschow with the "encryption is for criminals" news at ZDNet.

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Back in January, we wrote about a bizarrely bad Wall Street Journal op-ed co-written by disgraced and suspended Yale Law professor Jed Rubenfeld, arguing that Section 230 somehow magically makes social media companies state actors, controlled by the 1st Amendment. This is, to put it mildly, wrong. His argument is convoluted and not at all convincing. He takes the correct idea that government officials threatening private companies with government retaliation if they do not remove speech creates 1st Amendment issues, and then tries to extend it by saying that because 230 gives companies more freedom to remove content, that magically makes them state actors.As we noted at the time, that's not how any of this works. Companies' ability to moderate content is itself protected by the 1st Amendment. Section 230 gives them procedural benefits in court to get dumb cases kicked out earlier, but it most certainly does not magically make them an arm of the government. This wacky idea that social media is magically a state actor was rightly shut down by Supreme Court Justice Brett Kavanaugh (who, ironically, is part of another scandal involving Rubenfeld) in the Halleck case, in which the Court stated clearly that you don't just magically make companies state actors. There are rules, man. From the ruling written by Kavanaugh:

To justify its decision to effectively lobotomize itself at telecom lobbyist behest, the Trump FCC made all manner of promises. A major one was that if we gutted regulatory oversight of Comcast and AT&T, we'd see a massive boost in broadband investment. Shockingly, that never happened, despite repeated, ongoing claims by Ajit Pai and friends to the contrary.Another major promise was that kissing the ass of major broadband monopolies would somehow magically boost competition, lower rates, and aid consumers. Well, guess what:

What a wild trademark ride for Nike over the past few weeks. You will recall that Nike found itself on our pages after its trademark dispute with MSCHF over the so-called "Satan Shoes" being pushed by Lil Nas X. What had all the makings of a very interesting case that would have involved questions about resale rights, free speech, and property rights instead ended in a mostly meaningless settlement that saw MSCHF agreeing to offer to buy back shoes that are now wildly famous and valuable and will almost certainly never be bought back. Almost immediately afterwards, interestingly, Nike found itself on the flip side of the trademark coin with the United States Postal Service, after Nike produced an experimental Air Force 1 sneaker that was clearly inspired by the postal service.Now, while saying that these shoes were clearly inspired by the USPS would be an understatement, here again we have a situation where a trial could cover all sorts of interesting ground. Would the public be confused by any of this? C'mon now. Does Nike's homage to the USPS somehow diminish the USPOS brand? If anything, I would think the opposite effect would be on the table. When is the last time anyone before Nike considered the postal service cool enough to be honored with a sneaker produced by one of, if not the, most famous athletic apparel and shoe manufacturers on the planet? And, ultimately, what actual harm would be done to the USPS or its trademark rights by Nike's actions?Sadly, we'll never get answers to those questions as Nike has decided to abide by its stance against MSCHF and instead settle the dispute by entering a licensing agreement with the USPS.

If you've been following along with us, the past several months haven't gone great for streaming platform Twitch. It all started with Twitch's decision to simply nuke a bunch of streamer content as a result of a massive influx of DMCA notices it received. While Twitch streamers and some in the public went ballistic over this, the company decided to try to distract the world with bright shiny objects like emojis, only to continue to let the DMCApocalypse continue even after it apologized for its lack of transparency. Then Amazon, which owns Twitch, put on Twitch's GlitchCon and spent a pretty penny on it, while streamers on the platform wondered why Amazon didn't just spend that money on the licensing needed to keep streamers out of copyright jail. Fresh into 2021, Twitch then gave creators tools to help avoid copyright strikes, which mostly consisted of convenient ways to delete a bunch of their own content while not bothering to put in a method for policing DMCA abuse.And now it seems like a near certainty that this is all going to get way, way worse. Twitch, without notice, recently released a new tool on its site to make it even easier to issue DMCA notices on creators.

It's not often you see a politician ask the FCC to step in to punish a news station. And for good reason: the First Amendment. Politicians are welcome to fight speech they don't like with more speech, but they shouldn't be calling for a federal government investigation of a TV station just because they don't like the slant of the stories about them.Baltimore (MD) City State's Attorney Marilyn Mosby thinks a local Fox affiliate is unfairly portraying her and her official doings. Rather than just accept that this is part of being in the business of politics, Mosby is asking the FCC to ask Fox to stop being Fox. Here's the angry letter [PDF] her office wrote -- one she boosted into Streisandia by airing her particular grievance on Twitter. (h/t Adam Steinbaugh)

Update: The Minister has now attempted to backtrack these latest comments and repeated his insistence that the bill will not apply to social media users, though the impact the regulatory powers — which he says will apply to the platforms — will have on users remains unclear.Throughout the Canadian government's legislative push to give broadcast regulators power over online services, the story on exactly what the bill would do has continually shifted, and its author, Heritage Minister Steven Guilbeault, has been consistently vague and evasive in the face of questioning from other lawmakers and the media. He has repeatedly insisted that Bill C-10 is designed to target large audio and video services that act like broadcasters, but will not impact individual users of sites like YouTube and Twitch — despite the fact that the clause which would have clearly prevented this was removed and a new amendment confirms that social media will be subject to at least some regulation.The latest development is another change in the story: in a recent interview, Guilbeault stated that the new regulatory powers can apply to YouTube channels:

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Donald Trump liked to use the "Deep State" as a rhetorical punching bag. Whenever he stuck his foot in his mouth or found himself under investigation for abusing his powers, he claimed the "Deep State" just couldn't handle having such a strong truth-teller in the Oval Office. But he apparently liked the "Deep State" enough to allow it to go after his personal enemies, even as he portrayed himself as a warrior against the excesses of federal power.Trump's primary enemy was the press. According to Trump, there was also a massive media conspiracy determined to oust him from power -- one that was headed by "failing" mass media figureheads like the New York Times and the Washington Post. The latter was often conflated with Amazon -- the apparent enemy of the United States Postal Service (until the USPS became an enemy by delivering mail-in votes). This wasn't just Twitter posturing. Apparently, Trump (and the agencies under his control) believed the newspaper was a threat the government should neutralize by mobilizing the "Deep State" powers he repeatedly criticized.Documents obtained by the Washington Post show the DOJ directly targeting journalists' phone records in an apparent attempt to shield Trump from accusations of being BFFs with a foreign government's officials during its attempt to sway an American election.

Remember when the FCC rubber stamped the Sprint T-Mobile merger without looking at the facts? Remember when a long line of economists and experts noted the merger would likely erode competition, raise rates, and kill jobs -- and both U.S. regulators and the court system completely ignored them? And remember when the FCC and DOJ both cobbled together a "fix" to this problem by trying to throw some spectrum at Dish Network, a proposal we noted was likely to fail?Well guess what. Not only has the merger resulted in 5,000 layoffs and counting (something T-Mobile repeatedly promised regulators would never happen), the Dish "fix" proposed by the DOJ and FCC is looking more and more like a hot mess. Dish has increasingly been complaining that before the ink on the agreement was even dry, T-Mobile was behaving a lot like AT&T and Verizon. The issue is that T-Mobile is shuttering its older and slower CDMA network, which Dish hoped to lean on as it got its full, broader 5G network up and running:

This week, our first place winner on the insightful side is an anonymous comment responding to Trump's description of his new microblog platform as "a beacon of freedom" and "a place to speak freely and safely":

Five Years AgoThis week in 2016, we were pleasantly surprised when an Australian government commission spoke out about the harms of bad copyright law and bad patent law, while the University of North Dakota was teaching a student all about trademark abuse. The DOJ was issuing new rules on espionage investigations in the apparent hopes of avoiding embarrassment, while at the same time deploying some very questionable legal arguments in defense of the FBI's hacking warrants, and the National Intelligence Office's top lawyer was stepping up to defend bulk surveillance and the third-party doctrine. We also took a look at how the proper channels for whistleblowers were still a joke, as was the proper channel for requesting government records.Ten Years AgoThis week in 2011, Righthaven's woes continued as unsealed documents in one case had other judges questioning the legitimacy of their lawsuits, while the infamous John Steele also got slammed by a judge for a fishing expedition, and Perfect 10 sued the Usenet provider Giganews. Meanwhile, the White House published its obnoxious annual Special 301 naughty list of countries with IP laws the US doesn't like, and we took a look at just how dangerous the USTR's approach to naming-and-shaming could be.But the biggest news of the week didn't have much of a Techdirt angle — until we saw the story of the man who unknowingly live-tweeted the raid that killed Osama Bin Laden.Fifteen Years AgoThis week in 2006, there was growing buzz about whether software-as-a-service would kill piracy, while evidence continued to show that the war on movie piracy wasn't working. Epson was engaged in the fight against off-brand ink cartridges and the Supreme Court took a sudden interest in patent cases. The content industries were playing their game of sneaking bad rules into treaties, while we looked at the constitutionality of the RIAA's per-song fines. And it's always interesting to see a quiet, simple mention of Section 230 back before it was known to everyone, in this case in a post about all the lawsuits targeting Google.

The troubling signs for Google's video game streaming platform Stadia continue. While I have to admit that I had really high hopes for Stadia, nothing about this has been smooth from launch to its current state of, well, who the hell knows what is going to happen to it. From a poor initial reception to questions about failed promises on performance, the conversation about Stadia quickly focused on the platform not offering much in the way of an actual game catalogue to play. Less than a year later, Google made this problem even worse by disbanding its own in-house game developers, leading to more fallout when Stadia could suddenly not support its own internally developed game.And, as I mentioned above, the issues continue. Stadia's product head, John Justice, has left Google entirely.

Summary: An app that allowed users to moderate content residing on their own phones was given the boot by Google after it was determined to be in violation of Play Store rules.The self-explanatory "Remove China Apps" app was developed by Indian engineers residing in Jaipur, India in collaboration with One Touch App Labs. The app was created in response to growing backlash against China during the early days of the COVID-19 pandemic, after early reports showed visitors to a seafood market in Wuhan, China had contributed to the spread of the virus.India's proximity to China intensified this backlash. How removing apps developed in China was supposed to stop the spread of the virus is best left to the possibly literally-fevered imaginations of the app developers and the millions of Indian users who downloaded the app.However questionable the motivation for the development and deployment of the app, it did allow Android users to easily identify apps developed by Chinese developers and remove them from their phones. However, this secondhand act of personal content moderation was soon hampered by Google, which dumped the app from its Play store, citing violations of its policies. Specifically, Google pointed to its "deceptive behavior" policy. App developers are forbidden from uploading apps that "encourage or incentivize users to remove or disable third-party apps."Decisions to be made by Google:

I always thought it would be a great honor to be referenced in the hallowed pages of WIRED magazine. Like Mike, I've been reading it since its beginning, as a then student studying information technology and watching the Internet take hold in the world.This week it finally happened, and ugh... My work was referenced in support of a terrible take on Section 230, which not only argued that Section 230 should be repealed (something that I spend a great deal of personal and professional energy trying to push back against) but masqueraded as a factual explanation of how there was no possible reasonable defense of the law and that therefore all its defenders (including me) are, essentially, pulling a fast one on the public by insisting it is important to hold onto. After all, as the title says, "Everything you've heard about Section 230 is wrong," including, it would seem, everything we've been saying about it all along.Such an assertion is, of course, ridiculous. But this isn't the first bad Section 230 take and unfortunately is unlikely to be the last, so if that were all it was it might be much easier to simply let it fade into history. But that wasn't all it was, because the piece didn't just make that general statement; it used my own work to do it, and in the most disingenuous way.Ordinarily, of course, my work can speak for itself. The problem was, the author of this piece didn't let it speak for itself. Instead he stripped it of its context, plucking out only bits of the overall argument, citing ideas so incompletely, so orphaned from the overall message in which they were delivered, as to effectively mischaracterize my position. And then he used that mischaracterization of what I had argued as ammunition to underpin his anti-230 argument.Nor did the author let me speak for my work either, which could have corrected his apparent misapprehensions, if not about Section 230's merit at large, then at least the bigger picture I was getting at in the particular brief he had honed in on. But despite speaking with several of the law's detractors, he spoke to only one of its defenders, even though he obviously considered several of us expert enough to misleadingly reference our work in support of his dubious argument.It reads as a hit piece, not just against the law itself but its supporters, and one that he was apparently so determined to make that speaking with us, and affording us the chance to explain our views and what informs them, was not something he could chance. After all, we might have convinced him of the statute's merit, or at least given him some actual factual fodder to include in his supposedly factual accounting of the law, and that was obviously not the piece he wanted to write.And so it turns out that my first mention in WIRED is a misrepresentation of my advocacy. Which is rather depressing, personally, but it raises another issue, and one that ties back into the advocacy I do defending the statute and why I do it so fervently.

Three years ago we wrote about African countries that thought taxing blogs and social media was an easy way to raise money -- and to muzzle inconvenient voices. A year later, Techdirt was reporting on a sudden boom in VPN use among Ugandans keen to avoid that country's levy on social media use. As Karl Bode reported, back then the authorities were pressuring ISPs to ban the use of VPNs. A post on the Rest of the World site has a useful update on how things have worked out since then. First, the money:

I remember when Wired was the key magazine for understanding the potential of innovation. I subscribed all the way back in 1993 (not the first issue, but soon afterward, after a friend gave me a copy of their launch issue). Over the years, the magazine has gone through many changes, but I'm surprised at how much its outlook has changed. The latest example is a big cover story by reporter Gilad Edelman, basically arguing that people who support Section 230 are "wrong" and holding the law up as a "false idol." The piece is behind a paywall, because of course it is.I should note that, while I have disagreed with Edelman in the past (specifically regarding his reporting on 230, which I have long felt was not accurately presenting the debate), I think he's a very good reporter and usually quite thorough and careful. That's part of the reason I'm disappointed with this particular piece. Also, I will note that my first read of the article made me think it was worse than I did after subsequent reads. But, in some ways, more careful reads also highlighted the problems. While presented as a news piece with thorough reporting and fact checking, it is clearly narrative driven. It reads as though it were written with a story in mind, and then Edelman went in search of quotes to support that narrative -- even setting up strawmen (including myself and Cathy Gellis) to knock down, while not applying any significant scrutiny to those whose views agree with Edelman's. It's fine (if misleading) as an opinion piece you'd see on a blog somewhere. But as a feature article in Wired that was supposedly fact checked (though I am quoted in it, and no one checked with me to see if the quote was accurately presented), it fails on multiple grounds.The framing of the article is that "everything you've heard about Section 230 is wrong" (that's literally the title), but that's not how the article actually goes. Instead, it comes across as "everyone who supports 230 is wrong." It starts off by talking about "the Big Lie" and the fact that Trumpist cable news -- namely Newsmax, One America, and Fox News -- repeatedly presented blatantly false information regarding voting technology made by Dominion Voting Systems and Smartmatic. It notes that the voting companies sued the news channels, and all of them have been much more circumspect since then about repeating those lies. Edelman then contrasts that with the world of social media:

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Never underestimate the power of technology to destroy lives. Flawed software used for the last 20 years by the UK postal service resulted in dozens of wrongful criminal convictions which are only just now being overturned.

If there's one thing that the U.S. broadband industry is terrified of, it's price regulation. The idea that the government might eventually cap the rates regional monopolies can charge in the absence of meaningful competition keeps a lot of executives up late at night. But despite a lot of fear mongering by telecom industry folks on this front, the U.S. has never really gotten even close to that reality. Repeatedly, even the most modest of non-price related regulatory telecom oversight efforts (from net neutrality to privacy) are routinely and easily dismantled by powerful lobbyists either before they can take effect or not long after.Recently New York State passed a new law (pdf) demanding that regional broadband providers (Verizon, Charter Spectrum, and Altice) provide low-income consumers $15, 25 Mbps broadband tiers to help them survive COVID. The goal: to try and help struggling Americans afford the high cost of broadband. Under the proposal ISPs are also allowed to offer $20, 200 Mbps tiers, with any price increases capped at two percent per year.Regulators engaging in anything even close to price regulation of regional monopolies is, again, said monopolies' worst nightmare. As a result the broadband industry quickly sued New York, insisting that the state is forbidden from passing such a law thanks in part to the Trump administration's net neutrality repeal. While many folks think that repeal just killed net neutrality rules, that was never true. It also killed much of the FCC's consumer protection authority, including its ability to adequately respond to billing fraud (which happens a lot in residential broadband thanks to misleading surcharges and fees).The repeal even went one step further in claiming that states also aren't allowed to protect consumers from telecom industry shenanigans. The problem: the courts haven't been looking too kindly upon this argument so far. In part because once the FCC abdicated its regulatory authority over telecom, it lost any authority to tell states what they can or can't do. The industry has used similar arguments to try and attack state-level net neutrality rules, and it hasn't gone particularly well for them:

Peloton is, as they say, having a rough week. While the company has been something of a pop culture darling for several years, it also got a nice boost from this lovely COVID-19 pandemic we've all been suffering through for more than a year now. Still, no company gets through its full lifecycle unscathed and this week has been a week I'm certain the Peloton folks would love to forget. We'll get started with the less-Techdirt centric part of this, which is that Peloton recently had to recall two of its treadmills after it turns out those treadmills occasionally enjoy eating people, especially very young children.

Last month we wrote that Rep. Devin Nunes' favorite lawyer, Steven Biss, who has been filing frivolous, vexatious SLAPP suit after frivolous, vexatious SLAPP suit, was finally facing some sanctions. The specific case did not directly involve Nunes, but rather one of his aides, Derek Harvey, who had filed a ridiculous SLAPP suit against CNN. As we wrote last month, the court had easily tossed the original lawsuit and warned Biss not to file an amended complaint unless he had a credible legal theory. Biss did not have a credible legal theory, but he still filed an amended complaint. And thus, the court issued sanctions, saying that Harvey, Biss and other lawyers would be on the hook for CNN's legal fees.The latest filing in the case is the bill coming due. Harvey and Biss need to pay CNN $21,437.50 in legal fees (and an additional $52.26 in costs and expenses). That might not seem like that much in the grand scheme of things (especially for a lawyer who has claimed his client, Devin Nunes, is owed over a billion dollars for defamation, but it is still real money that someone is going to need to pay -- though it remains an open question as to who is actually going to pay it).There's not much to see in the ruling itself, as it basically says that the fees CNN's lawyers outlined are within the standards that the court's local rules say are "presumptively reasonable." The lawyers admit that they're actually asking for less than they normally charge in order to keep them "reasonable" in the Court's eyes, and the Court basically says "sounds good."It does often seem that lawyers who file tons of frivolous and vexatious lawsuits are able to get away with it for a while, with courts giving them many, many chances and being extremely reluctant to issue sanctions. And, even when sanctions are issued, they tend to be relatively low. However, with such repeat offenders, we've often seen that courts across the country take notice, and once one court has sanctioned this kind of behavior, it can open the floodgates. We'll see what happens in other Biss lawsuits.

For years -- years! -- Techdirt has been a place that has argued that offering a product or service for free, where that made sense, could actually be a fantastic business model. While there are lots of examples of that sort of thing these days, you have to understand that this concept was met with derision and scorn by all kinds of industry folks big and small. Some said anyone offering something for free had no clue how to run a business. Others even more absurdly claimed that there was literally no way to compete with "free."Well, the video game industry has long claimed to have a "free" problem when it comes to piracy. The problem with combining those claims with claims that you can't compete with that sort of thing is that the success stories are there and you don't exactly have to look hard for them. Back in 2018, we talked about Fortnite, a free game that makes its money in all other sorts of ways. And by "its money" I mean that it was making $300 million per month. But then there were claims that all of this was some flash in a pan rather than anything sustainable. The problem with that is that, thanks to the trial just kicking off between Apple and Epic, internal Epic documents indicate that Fortnite made the company $9 billion over the course of two years.

Late last year, we wrote about how bizarre it was that Senator Thom Tillis was trying to force through a felony streaming bill by attaching it to an end-of-the-year appropriations bill. There were so so many problems with this both in terms of what the bill would do, and in the procedural way it was done. First, Tillis got it attached to the "must pass" appropriations bill before he'd even introduced it. That meant that there was no debate and no direct votes on his bill.You can kinda maybe (but not really?) see where that might make sense for uncontroversial bills, but the felony streaming bill... was not that. Long time readers of Techdirt will know that Hollywood has been pushing for a felony streaming bill for over a decade, and it was originally set to be attached to the infamous SOPA/PIPA bill until the internet rose up and made it clear that it would not accept Congress passing such a dangerous bill. Given that, you'd think that any one who had an honest reason for pushing such a bill would open it up to debate, rather than hide it away in a giant bill. That should give you one giant hint as to why Tillis pushed it the way that he did.Second, there have been multiple reports about just how much Hollywood has invested in Senator Tillis. And we've heard from multiple people now that Tillis bristles at the idea that he's somehow owned and operated by Hollywood lobbyists. Of course, it would help if he didn't repeat their talking points at every turn, and turn around and introduce massive copyright reform that was basically an early Christmas gift for Hollywood.But if Tillis wants to claim that he's not just doing Hollywood's billing, you'd think he would not have allowed this to happen. His chief staffer working on these copyright bills, Brad Watts, teamed up with Fox's chief DC lobbyist, Gail Slater, to write an article patting each other on the back for getting the felony streaming bill passed.I've spoken to multiple DC policy folks both inside and outside of Congress and literally none can think of any other example when a Congressional staffer and a top corporate lobbyist teamed up to write an op-ed together. It's literally unprecedented. More than one person I spoke to expressed complete bewilderment that this op-ed even came to be. "How did no one in Tillis' office not realize that this was a bad idea?" was the quote a staffer in another Senate office told me. "It's shocking."But even worse than this out-and-out admission that Tillis does what Hollywood asks him to do, is the content of this article, which is not just revisionist history, but actually celebrates the sneaky way in which Watts (and apparently Slater!) helped sneak this bill through.

This week New York Attorney General Leticia James unveiled a new report (also see accompanying statement) proving what most people already knew: the broadband industry was behind the use of fake and dead people to generate bogus support for the FCC's controversial 2017 repeal of net neutrality.The short version: the AG found the broadband industry used a non-profit lobbying organization, Broadband For America, to pay three different marketing firms about $4.2 million to generate artificial support for a plan that was opposed by a bipartisan majority of Americans. That artificial support included flooding the FCC comment system with millions of comments from fake and even dead people supporting the effective lobotomization of the FCC.According to the NY AG, the firms lured consumers in with promises of sweepstakes prizes and gift cards in exchange for providing their personal information, which was then used without their consent to flood the FCC with fake support for its unpopular proposal:

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What's the career penalty for spending four straight years lying repeatedly about the illusory benefits of mindless telecom deregulation? None, apparently.Surprising nobody, former FCC boss Ajit Pai and his giant goofy coffee mug are headed to private investment firm Searchlight Capital Partners, which invests in the telecom and other sectors. He's also been rewarded with a new gig at the American Enterprise Institute, where he'll be given a platform to spend another twenty years falsely claiming that lobotomizing U.S. telecom regulators, turning a blind eye to the perils of telecom monopolization, and generally ignoring consumer welfare results in telecom investment Utopia:

It's hardly news that Vladimir Putin is cracking down on supporters of Alexey Navalny, or on the journalists who are brave enough to report on the wave of protests in support of the imprisoned opposition leader. But there are some interesting wrinkles to how this is happening. For example, in a move that will not surprise Techdirt readers, Moscow's massive facial recognition camera network -- supposedly set up to enforce quarantine restrictions, and to catch criminals -- has been re-purposed, as Bloomberg reports:

Earlier this week we wrote about the absolutely ridiculous coalition of folks who were lobbying against the US supporting a TRIPS intellectual property waiver to support fighting COVID. As we noted, it was totally expected that Big Pharma would object to it, but the surprising thing was seeing Hollywood and the legacy entertainment industry -- an industry that needs COVID to go away to get back to normal -- coming out strongly against the waiver as well. They claimed they had to do so since the waiver would apply to copyright as well, but that's nonsense. The waiver (1) explicitly excluded entertainment products and (2) is expressly limited to "prevention, containment or treatment of COVID-19."On top of that, the waiver process was built into the TRIPS agreement, and if a full on global pandemic that has already killed over 3 million people (and counting) isn't the time to use the waiver, then the waiver is effectively meaningless.Thankfully, the US has now announced that it will be supporting a waiver. USTR Katherine Tai made the announcement:

Summary: There is an inherent tension in handling content moderation of world leaders -- especially more controversial ones. If those leaders break the rules on social media, some reasonably call for the content, or the accounts, to be removed for violating policies. Others, however, point out that it is important for the public to be aware of what world leaders are saying, rather than removing and hiding the speech.Twitter has had a public interest exception for tweets from world leaders since at least 2019. Under that policy, Twitter may choose to leave up some content from a world leader that the company admits violates its rules, under the belief that it is more important that the world know what that leader has said. Since 2019, Twitter announced that when it found such content, it would label it clearly -- publicly noting that it violated the company’s policies, but was being kept up due to the public interest.The policy was put to the test in October 2020, following the murder of a teacher in a Paris suburb, after the teacher had shown students cartoons of the Prophet Muhammad while discussing the controversy over such drawings. A week later, three people were stabbed in Nice, in southern France. French President Emmanuel Macron described both attacks as “Islamist terrorist attacks."Soon after the latter attack, former prime minister of Malaysia Mahathir Bin Mohamad posted a Twitter thread discussing both attacks. While the thread touched on a variety of points, urged people not to scapegoat entire religions, and said he did not approve of the killings, the twelfth tweet raised many concerns by stating: "Muslims have a right to be angry and kill millions of French people for the massacres of the past."Twitter posted its public interest notice on this particular tweet, noting that it violated Twitter’s rules about glorifying violence, but Twitter felt that it “may be in the public’s interest for the tweet to remain accessible.”Many disagreed with this decision, including French officials. France’s digital minister, Cédric O, claimed that if Twitter did not remove the tweet, it would make the company an “accomplice to a formal call for murder.”Decisions to be made by Twitter:

One of the nice things about being a telecom giant in a country with limited competition, feckless politicians and hog-tied regulators is there isn't much in the way of accountability. As a major broadband provider like Charter or Comcast, you're allowed to monopolize the telecom market, jack up prices, elbow out competitors, then lobby state and federal government to ensure nobody does anything about it. Hell, thanks to a timid press that can't call a spade a spade, half the time nobody can even be bothered to point out that you're a monopoly in the first place.In US telecom, regional monopolies like Charter and Comcast continue to dominate market share as residential telcos effectively retreat from network expansion in any areas that aren't profitable enough, quickly enough for Wall Street's liking. Unfortunately for them, they still have to deal with rising competition on the video end of their businesses.But as the pay TV sector gets more competitive thanks to streaming, these telecom monopolies can simply extract their pound of flesh from captive broadband customers. Charter Communications, (which operates under the brand name Spectrum), lost another 156,000 residential pay TV subscribers in the first quarter, a notable uptick from the 70,000 pay TV subscribers lost during the same quarter a year ago. The reasons aren't mysterious: users are fleeing endless price hikes and some of the worst customer service in America for the cheaper, more flexible, more consumer friendly TV offerings of streaming operators.Cable companies' broadband customers would be doing the same thing but they can't because there are no other options to flee to. This is then interpreted by cable executives as something caused by their own innate business genius:

There's been plenty of talk lately about the "Techlash" which has become a popular term among the media and politicians. However, what if the general public feels quite differently? Vox, which is not exactly known for carrying water for the tech industry, has released a new poll that shows that the public is overwhelmingly optimistic about technology, and thinks that technology has been a force for good in the world. This applies across the board for Democrats, Republicans, and independents.

Today is Facebook Oversight Board Hysteria Day, because today is the day that the Facebook Oversight Board has rendered its decision about Facebook's suspension of Donald Trump. And it has met the moment with an appropriately dull decision, dripping in pedantic reasonableness, that is largely consistent with our Copia Institute recommendation.If you remember, we were hesitant about submitting a comment at all. And the reaction to the Board's decision bears out why. People keep reacting as though it is some big, monumental, important decision, when, in actual fact, it isn't at all. In the big scheme of things, it's still just a private company being advised by its private advisory board on how to run its business, nothing more. As it is, Trump himself is still on the Internet – it's not like Facebook actually had the power to silence him. We need to be worried about when there actually is power to silence people, and undue concern about Facebook's moderation practices only distracts us from them. Or, worse, leads people to try to create actual law that will end up having the effect of giving others the legal power to suppress expressive freedom.So our pride here is necessarily muted, because ultimately this decision just isn't that big a deal. Still, as a purely internal advisory decision, one intended to help the company act more consistently in the interests of its potential user base, it does seem to be a good one given how it hews to our key points.First, we made the observation that then-President Trump's use of his Facebook account threatened real, imminent harm. We did, however, emphasize the point that it was generally better to try not to delete speech (or speakers). Nevertheless, sometimes it might need to be done, and in those cases it should be done "with reluctance and only limited, specific, identifiable, and objective criteria to justify the exception." There might not ultimately be a single correct decision, we wrote, for whether speech should be left up or taken down. "[I]n the end the best decision may have little to do with the actual choice that results but rather the process used to get there."And this sort of reasoning is basically at the heart of the Board's decision: Trump's posts were serious enough to justify a sanction, including a suspension, but imposing the indefinite suspension appeared to be unacceptably arbitrary. Per the Board, Facebook needs to make these sorts of decisions consistently and transparently from here on out.

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Australian mining billionaire and former politician Clive Palmer has been hit with a $1.5-million judgement over unauthorized use of the song "We're Not Gonna Take It" by Twisted Sister. The suit was brought by Universal Music after, as part of a 2019 political campaign, Palmer made videos using a modified version of the song with the lyrics "Australia ain’t gonna cop it, no Australia’s not gonna cop it, Aussies not gonna cop it any more". Setting aside the rather questionable scansion, it's a pretty obvious modification of the famous song, giving it at least a chance of qualifying for the fair dealing exception for parody and satire that exists under Australian copyright law. But in a ruling today the court has rejected that argument entirely:

So we've noted for a long time how efforts to monopolize repair have resulted in a growing, bipartisan interest in right to repair legislation in more than a dozen states. Whether it's Sony and Microsoft's efforts to monopolize game console repair, Apple's tendency to monopolize phone repair (and bully independent repair shops), or John Deere making its tractors a costly nightmare to fix, a sustained backlash has been growing against draconian DRM, rampant abuse of copyright, and other behaviors that make repairing products you own as annoying and expensive as possible.Granted this anger has extended into the medical arena, where the problem isn't just a costly hassle, it's a matter of life and death. This was particularly true during COVID, given many hardware manufacturers made getting access to repair manuals and parts cumbersome and expensive, if not impossible. As such, several states (including Texas) have been pushing both right to repair legislation that generally protects consumers, as well as legislation that takes aim at device manufacturers that make it an expensive headache for hospitals to repair their own equipment in a timely fashion.Granted as more and more states push such legislation, more and more companies have taken to pushing misleading claims about what this legislation does. Whether it's Apple's attempt to claim that such legislation will turn states into "meccas for hackers" (which sounds kind of cool, honestly), or the auto industry's false claim that such laws will help sexual predators, there's been no shortage of sleazy efforts to undermine such laws using specious reasoning and unethical claims. And given that legislative efforts keep getting blocked, it has proven pretty effective.Enter the Wall Street Journal, which this week joined the fun with a nonsensical editorial claiming that medical device right to repair legislation being pushed in Texas is somehow harmful to human health. The piece basically just consists of several paragraphs of author Tom Giovanetti lauding the miraculous innovation of copyright, while claiming the bipartisan right to repair movement is some kind of "leftist" plot. Why would the activist and reform groups operating on a shoestring budget do this? They hate innovation, apparently:

In a few hours, the Oversight Board will announce its decision regarding Facebook's decision to ban Donald Trump from its platform. As we noted back when Trump was removed from Twitter and Facebook, Trump does not lack in ways to be heard. Indeed, we suggested that he could very, very easily set up his own website with tweet-like statements, and it was likely that those would be shared widely.And... as we wait for the Oversight Board ruling, it looks like Trump has done exactly that. He's launched a new blog site that has short Tweet-style posts, and includes simple sharing buttons so people can post the text to both Twitter and Facebook:It's not hard to see how that... looks quite like his Twitter feed. For what it's worth, a friend notes that while you can "like" Trump's new missives, you cannot unlike them once you've done so (this is a metaphor for something, I'm sure).The messages on the site go back to March 24, even though the site was just launched today, so it makes you wonder if this is the infamous rumored result of Trump writing down "insults and observations" that he would have said on Twitter if he still had an account.In a video he currently has posted to the top of the site, announcing the site, Trump says that it will be "a beacon of freedom" and "a place to speak freely and safely" (whatever that means). It's unclear if they just mean for Trump himself, or if this is the rumored first pass of his own social network.Either way, if he doesn't let anyone else post to the site, under his own definition of censorship, wouldn't that mean that he's censoring everyone but himself? Or, if he does allow others to post, it will be absolutely fascinating to see what content moderation policies he ends up putting in place. The existing terms of service on the site makes it clear that he wants to be able to moderate everything:

An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:

The past several years have done a lot to expose the failings of the "marketplace of ideas", as disinformation and harassment campaigns have shown an ability to spread and flourish despite ample amounts of counterspeech. This triumph of mob behavior, especially on Twitter, has challenged a lot of people's preconceptions about how free speech functions, and one person who has been exploring these issues is FIRE's Sarah McLaughlin, especially in two topical articles on her Substack. She joins us on this week's episode to discuss Twitter, free speech, and the challenge mob behavior presents to online discourse.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Tomorrow, the Oversight Board is set to reveal its opinion on whether Facebook made the right decision in banning former President Trump. And that will get tons of attention. But the Board came out with an interesting decision last week regarding a content takedown in India, that got almost no attention at all.Just last week, we wrote about an ongoing issue in India, where the government of Prime Minister Narendra Modi has failed in almost every way possible in dealing with the COVID pandemic, but has decided the best thing to focus on right now is silencing critics on Twitter. That backdrop is pretty important considering that the very next day, the Oversight Board scolded Facebook for taking down content criticizing Modi's government.That takedown was somewhat different and the context was very different. Also, it should be noted that as soon as the Oversight Board agreed to take the case, Facebook admitted it had made a mistake and reinstated the content. However, this case demonstrates something important that often gets lost in all of the evidence free hand-wringing about "anti-conservative bias" from people who wrongly insist that Facebook and Twitter only moderate the accounts of their friends. The truth is that content all across the board gets moderated -- and often the impact is strongest on the least powerful groups. But, of course, part of their lack of power is that they're unable to rush onto Fox News and whine about how they're being "censored."The details here are worth understanding, not because there was some difficult decision to make. Indeed, as noted already, Facebook realized it made a mistake almost immediately after the Oversight Board decided to look into this, and when asked why the content was taken down, basically admitted that it had no idea and that it was a complete and total mistake. Here was the content, as described by the Oversight Board ruling:

Let's be clear about something. The U.S. doesn't really do "accountability" particularly well. It's a major reason why we often repeat the same mistakes over and over again without learning much from history or experience. That's been made particularly clear by a U.S. press that continues to not only platform the insurrectionists who spread election fraud lies leading to the violent events of January 6, but treats these lies as valid and meaningful opinions. That, understandably, has led to concerns that it's going to happen again. But worse.Case in point is the Washington Post, which this week decided, for whatever reason, to give Senator Josh Hawley oodles of free publicity for his latest book. Washington Post Live hosted Hawley as part of a chat, providing him ample free marketing for his book complaining about the "tyranny of big tech" (tyrannically sold by Amazon, and heavily marketed by Hawley on Twitter). Not only that, the Post couldn't be bothered to craft an accurate bio for Hawley, instead using the one provided by his publicist that paints Hawley in an aggressively inauthentic light:Not too surprisingly, the Post marketing doesn't really bother to inform readers that Hawley's anti-monopolist credentials are largely nonexistent. Like most of the GOP, it's literally impossible to find an instance where Hawley, for example, so much as criticized a telecom monopoly. And, like most of the press, it's rare you'll find outlets like the Washington Post pointing out that a primary platform of the GOP for forty fucking years has been to encourage monopolization, whether we're talking about telecom, airlines, banking, or countless other marginally competitive and largely broken U.S. business sectors.The GOP isn't engaged in histrionics over "big tech" because it genuinely cares about monopolization or unchecked corporate power. Decades of policy history make it abundantly clear that's not remotely true.The GOP is angry at big tech because a handful of social media companies belatedly started policing disinformation and race-baiting, cornerstones of party power and recruitment in the face of an aging, sagging, and shifting electorate. There are plenty of very valid criticisms of "big tech," but the U.S. press seems incapable of acknowledging that many of the GOP's concerns on this front aren't entirely in good faith.NYU journalism professor Jay Rosen has long lamented the U.S. media's obsession with the "view from nowhere," and how this undermines accountability while letting bad actors off the hook. Rosen wasn't particularly impressed with the Post offering free book marketing to a guy who just got done spending months filling the American public's heads with dangerous fluff and nonsense, and shows absolutely nothing that could be mistaken as contrition in the wake of January 6:

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We were quite perplexed in late 2019 when Salesforce.com founder and CEO Marc Benioff (never one to shy away from expressing his opinions on anything at all) announced that Section 230 should be abolished. It seemed like an extremely poorly thought-out statement from a CEO who was wholly unfamiliar with the issues, but who has sort of relished tweaking the noses of the big consumer internet companies over the past few years (after spending the first decade or so of Software.com's existence tweaking the noses of enterprise software companies). As we wrote at the time, Benioff didn't seem to understand 230 at all, and seemed just angry at Facebook.Of course, this is coming back to bite him hard. Just a few months later, lawyer Annie McAdams, who seems to have made it her life's mission to file blatantly silly attacks on Section 230 in court, sued Salesforce.com (and not for the first time!), claiming that because Backpage.com had used Salesforce as its CRM system, Salesforce was somehow magically liable for any sex trafficking that happened on the platform. In the complaint, McAdams cited Benioff's comments: