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Having spent two and a half decades writing about innovation, one of the things that's most fascinating to me is how little most people can envision how innovation can have a positive effect on our lives. Perhaps it's a lack of imagination -- but, more likely, it's just human nature. Human psychology is wired for loss aversion, and it's much easier to understand all the ways in which technology and innovation can backfire to take away things we appreciate. History, however, tends to show that the positives of many innovations outweigh the negatives, but we're generally terrible at thinking through what those benefits might be.Part of the reason is just that it's impossible to predict the future. There are just too many variables, and too much randomness. But, part of it might also be our general unwillingness to even try to imagine positive futures. But imagining positive futures is one tool for actually getting us to move in that direction. Even by suggesting what interesting innovations and societal changes might happen can inspire individuals, organizations, institutions, and movements to try to make what was first imagined into reality. And we sure could use a bit of positive thinking these days. This is the story of how we attempted to help create more positive visions of the future -- specifically around artificial intelligence.As some of you may recall, a few years back, we did a fun project, called Working Futures to use a (more fun) type of scenario planning to explore possible futures for work -- and then turn those scenarios into entertaining science fiction. As many people know there are all sorts of concerns about what the future of work might look like. We're living in disruptive times when it comes to innovation, and in the last few decades, it's created a massive shift in the nature of employment, and there are many indications that this trend is accelerating. Historically, similar shifts in work due to technology have also been disruptive and frightening for many -- but all managed to be worked out in the end, despite fears of automation "destroying" jobs.However, simply saying that "it will work itself out" is incredibly unsatisfying and, even worse, provides little to no guidance for a variety of different stakeholders -- from actual workers to policy makers trying to put in place reasonable policies for a changing world. The Working Futures project was an attempt to deal with that challenge. We created a special scenario planning deck of cards, and ran a one-day session which helped us build a bunch of future scenarios. We gave those to science fiction writers, and eventually released an anthology of 14 speculative future stories about the future of work (which is rated quite highly in Amazon reviews and on Goodreads as well).Late last year, some people associated with the World Economic Forum and Berkeley's Center for Human-compatible AI (CHAI) reached out to us to say that they had been engaged in a similar -- but slightly different -- endeavor, and wondered if we might be able to lead a similar scenario planning process. The two organizations had already been working on a series of events to try to imagine specifically what a "positive future" for AI might look like. We all know the doom and gloom and dystopian scenarios. So this project was focused on something different: explicitly positive futures. The end goal was to take some of these positive AI future scenarios and use them as part of a film competition from the X-Prize Foundation (not unlike our Working Futures project, but with films instead of written fiction).They asked if we could take an approach similar to what we had done with Working Futures and run a workshop for around 90 attendees -- including some of the top economists, technologists, science fiction writers, and academics on this subject in the world -- and... they said they'd already invited people for the event just two weeks later.It turned what would normally have been a quiet time in December into a frantic mad dash as myself and Randy Lubin (our partner in our various gaming endeavors) had to put together a virtual event. We've obvious done scenario planning events -- including ones about the future of work. And even Working Futures was designed to be generally positive. But what WEF and CHAI were asking for was even more extreme, and required a real rethinking of how to put together a scenario planning program. Traditional scenario planning doesn't put any conditions on the potential scenario outputs -- so creating scenarios where the goal is for them to be explicitly positive presented a few challenges.Challenge 1: Directing scenario planning towards a desired style outcome is a pretty big departure from how you normally do scenario planning (starting with driving forces, and following those wherever they may lead). There are risks in doing this kind of scenario planning, because you don't want to preset the end state, or you lose the value of the open brainstorming and surprise discoveries of scenario planning.Challenge 2: Something we had discovered with Working Futures: explicitly "positive" futures sometimes feel... boring. They make for a tougher narrative, because good stories and good narrative usually involves conflict and tension and problems. That's much easier in a dystopian scenario than a utopian one. And if the end result of these scenarios is to drive useful story-telling, we had to consider how to create scenarios that were both interesting and "positive."Challenge 3:: With Working Futures, we did the scenario planning in a large room in San Francisco, and we had a custom card deck that we had made and printed, that everyone could use as part of the scenario planning process, to experiment with a variety of different forces. In this case, we had to manage to do the workshop via Zoom. This was a separate challenge for us in that while we've all done Zoom meetings (so, so, so many of them...) throughout the pandemic, for good scenario planning, you want to make use of smaller groupings, and we hadn't had as much experience with Zoom's "breakout room" feature. This presented a double challenge in itself. We had to create a series of exercises that people could follow -- meaning with enough scaffolding in the instructions that they could go off into groups and do the creative brainstorming, but without being able to easily see how they were all doing. And, we had to keep the whole thing interesting and exciting for a large group of very diverse people.In the end -- somehow -- we succeeded in overcoming all three challenges, and created a really amazing workshop. The feedback we got was astounding. The key ways that we worked to overcome the challenges and to create something useful was a realization that we'd start with a few more "broad" ideas to get people thinking generally about these kinds of distant future worlds, and with each exercise we'd focus more and more narrowly, building on the work in earlier exercises to help craft a variety of scenarios. The very first exercise was more of a warmup, but one that was still important to get creative juices flowing: figuring out new abundances and scarcities in such a world.To me, this was a key idea. When we think about big, disruptive changes brought on by technology, they often involve new "abundances." Cars make the ability to travel long distances "abundant." Computers make doing complex calculations abundant. The internet makes information abundant. Yet, the more interesting thing is how each new abundance... also creates new scarcities. For example, the abundance of information has created a scarcity in attention. As you think through new abundances, you can start to recognize possible scarcities, and it's almost always those new scarcities where you find interesting ideas about business models and jobs. So we had participants explore a few of those (here's one example that came out of the exercise):In the second exercise, we asked the breakout groups to build a "qualitative dashboard" to guide humanity in this new, positive future. We assumed that there would be a focus on optimizing certain aspects of life, and we asked the teams to develop a "dashboard" of qualitative concepts that should be optimized, and from there what quantifiable measures might be used to see if society was reaching those milestones. Here's one example:Of course, recognizing that whenever you try to "optimize" a particular value, it almost inevitably leads to unforeseen consequences (usually from focusing and optimizing too narrowly on a small number of quantitative values, and missing the bigger picture), we then had the teams present their dashboard to a different team, and had those other teams provide an analysis of what might go wrong with such a dashboard. How might optimizing on one of these items go badly awry.The third exercise was, in part, an attempt to deal with the problem of a utopian world being too boring. We had the teams focus on figuring out what was "the final hurdle" to reaching that "positive" future, and we used a tool that we've used a few times before: news headlines. We asked the breakout groups to effectively write a narrative in four headlines, starting with a negative headline demonstrating a major hurdle preventing society from reaching that positive future. Then the second headline would note some positive development that might, possibly, overcome the hurdle. The third headline was a setback: in the form of some kind of resistance effort that might block the hurdle from being cleared, followed finally by the last headline: a story that showed evidence that the hurdle truly had been overcome.From there, we started to really focus in. The headlines created a sense of this "world" that each group was inhabiting, but we wanted to look more closely at what kind of world that was. The fourth exercise explored what were the new essential institutions, participatory organizations, and social movements in this new world. The idea here was to think about what would life actually look like in this world. Would there still be "jobs" or would your daily activity look radically different?Again, mindful of both the potential "boringness" of utopia, as well as the fact that perfection is impossible, in the middle of this exercise we introduced something of a "shock" to the worlds that were being built -- telling participants that a major earthquake had struck, with millions of people wounded, possibly dead, trapped or missing -- and with major infrastructure disrupted. We asked the teams to go back and look at the institutions, organizations, and movements they'd just discussed to see how they reacted and how well they handled this shock (and if new such groups formed instead):The final exercise of the workshop was designed and run by WEF's Ruth Hickin, diving in even deeper, and asking participants to explore specific individuals within these scenarios. Each person was assigned a future persona, and had time to explore what that persona might think about this world -- and then had each of the participants take on that role, and have a discussion with the others in their group, in character, trying to answer some difficult questions about their obligations to society, and whether or not they could find meaning in this future world.While Randy and I planned the whole event in two frantic weeks, making it actually work required a bigger team of incredibly helpful people. Caroline Jeanmaire at CHAI and Conor Sanchez at WEF helped organize everything, and gave us great feedback and guidance throughout the project design. The two of them also helped keep the event running smoothly, following a very detailed run of show to make sure breakouts happened in a timely and clean manner, and that we could re-assemble everyone for the group discussions in between each of the breakouts. They also brought together a group of facilitators who helped guide each of the breakout discussions and keep everyone on track.Another incredibly handy tool that made this all work was Google Slides. Between breakouts, we'd assemble everyone and discuss the next exercise, including an example slide. Then each breakout room had their own set of "template" slides that had the instructions (in case they hadn't quite followed them when we explained them), an "example" slide to get inspiration from, and then the template slides for them to fill out. It turned out that this had multiple useful features. Perhaps most importantly, it helped us record the brainstorming in a way that would live on and which could be used later for the X-Prize competition. But it also allowed us to "peek in" on the various tables while the exercises were happening, without having to jump into their Zoom breakouts, disturbing everyone. As the breakouts were happening, I would flip between the different group slides, and see if any of the groups appeared to be struggling or confused, and then we could send someone into that breakout to assist.In the end, as noted, the event turned out to be a striking success. We've received great feedback on it, and are exploring possibly running it again (perhaps in a modified version) in the future. Randy also wrote up a post describing some more of the nuts and bolts of the workshop if you want more details about how we pulled off the whole thing.From my end, the biggest takeaway was that a well-crafted event could create truly brilliant and inspiring ideas for what the future might look like, and it was somewhat humbling to see how our framing and scaffolding was embraced by such an eclectic and diverse group to generate such fascinating futuristic worlds and scenarios. Hopefully, some of these futures will inspire not just films or stories about this future, but will also inspire people to work to make something like those futures a reality.

Is it too late to force Tennessee to secede from the Union and become some sort of free-floating non-nation we can freely raid to shore up our non-wartime stockpiles of tobacco and country music?To be fair, I'll list Tennessee's positives first. Within the last year, a court struck down a law that forbade the use of entertaining hyperbole by political candidates, and legislators finally passed an anti-SLAPP law with teeth -- the latter of which should head off bullshit like someone suing a reporter for things someone else said.On the other hand, legislators continue to ignore its position as a backwater state in terms of internet access. And legislators are still doing extremely stupid things, like asking federal legislators to bypass the First Amendment and Supreme Court precedent to jail people for burning the flag.Here's the latest broadside against constitutional rights and common sense, via pretty much every member of Tennessee's Republican leadership. Let's go direct to the source of this hideousness, who provides the question this legislative bullshit begs:

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I have a few different services that report to me if my email is found in various data breaches, and recently I was notified that multiple email addresses of mine showed up in a leak of the service NetGalley. NetGalley, if you don't know, is a DRM service for books, that is regularly used by authors and publishers to send out "advance reader" copies (known around the publishing industry as "galleys.") The service has always been ridiculously pointless and silly. It's a complete overreaction to the "risk" of digital copies of a book getting loose -- especially from the people who are being sent advance reader copies (generally journalists or industry professionals). I can't recall ever actually creating an account on the service (and can't find any emails indicating that I had -- but apparently I must have). However, in searching through old emails, I do see that various publishers would send me advance copies via NetGalley -- though I don't think I ever read any through the service (the one time I can see that I wanted to read such a book, after getting sent a NetGalley link, I told the author that it was too much trouble and they sent me a PDF instead, telling me not to tell the publisher who insisted on using NetGalley).It appears that NetGalley announced the data breach back in December on Christmas Eve, meaning it's likely that lots of people missed it. Also, even though I'm told through this monitoring service that my email was included, NetGalley never notified me that my information was included in the breach. NetGalley did say that the breach included both login names and passwords -- suggesting that they didn't even know to hash their passwords, which is just extremely incompetent in this day and age.So, from my side of things, this means that the company put me and my information at risk for what benefit? To make my life as a potential reviewer of a book more difficult and annoying, and limiting my ability to easily read a book? DRM benefits literally no one. And in this case, has now created an even bigger mess in leaking my emails and whatever passwords I used for their service (thankfully, I don't reuse passwords, or it could have been an even bigger problem). For those who say that the DRM is still necessary to avoid piracy, that's ridiculous as well. If the book is going to get copied and leaked online, it's going to get copied and leaked online. And once one copy is out, all the DRM in the world is meaningless.Rather than focusing so much on locking stuff up and making it impossible to read, while putting people's personal info at risk, just stop freaking out, recognize that most people are not out to get you by putting your stuff on file sharing sites, and focus on getting people to want to buy your books, rather than putting their data and privacy at risk.

Last November, Comcast quietly announced that the company would be expanding its bullshit broadband caps into the Northeast, one of the last Comcast territories where the restrictions hadn't been imposed yet. Of course Comcast was utterly tone deaf to the fact there was a historic health and economic crisis going on, or how imposing unnecessary surcharges on consumers already struggling to make rent wasn't a great look. In some states, like Massachusetts, lawmakers stood up to the regional monopoly, going so far as to push a law that would have banned usage caps during the pandemic.After gaining some bad press for the behavior, Comcast initially delayed the efforts a few months, hoping that would appease folks. When it didn't, Comcast last week announced that it would be suspending the caps until 2022. This, according to Comcast, was to give consumers "more time to become familiar" with the restrictions:

The Supreme Court has done a lot over the years to shield law enforcement officers from accountability. It has redefined the contours of the qualified immunity defense to make it all but impossible for plaintiffs to succeed. Appeals Courts have been hamstrung by Supreme Court precedent, forced to pretty much ignore the egregious rights violations in front of them in favor of dusting off old decisions to see if any officer violated someone's rights in exactly this way prior to this case.Since law enforcement officers are apparently unable to exercise judgment on their own, the courts often grant forgiveness to these poor single-cell organisms who couldn't have possibly known that, say, locking a prisoner in a feces-covered cell for days violated the prisoner's rights. And that's the conclusion the Fifth Circuit Appeals Court reached December 2019 in Taylor v. Riojas.The Fifth Circuit is the worst circuit to bring a federal civil rights violation case. And it's still as awful as ever, even with Judge Don Willett -- who published a scathing dissent in another qualified immunity case -- sitting on the bench.The only good news is that the Supreme Court may be slowly realizing its expansion of the qualified immunity defense is encouraging courts to give law enforcement officers a pass even when it's painfully clear rights have been violated. Almost a year after the Fifth Circuit ruled in favor of prison guards, the Supreme Court reversed this decision. There may have been no case exactly on point, but for the Supreme Court that's not a necessity when there's a clear rights violation.

More bad news for Stadia. We were just discussing Google's decision to axe its own game development studios. In and of itself, such a move to cut staff like this would be a worrying sign for the platform, especially given just how much growing interest there has been in video games and game-streaming surrounding the COVID-19 pandemic. But when it's instead one more indication that Google isn't fully committed to its own platform, alongside the poor reception from the public and concerns about whether it can deliver the gaming experience it promised, these things tend to pile up on one another. I have attempted to drive home the point of just how important the development of trust with customers is for Stadia, given that those buying into the platform are gaming entirely at the pleasure of Google's desire to keep Stadia going.And the hits to trust keep coming. In direct fallout from its decision to cut the development teams, Stadia customers are finding themselves unable to get support for Google's internally developed game.

Summary: Chatroulette rose to fame shortly after its creation in late 2009. The platform offered a new take on video chat, pairing users with other random users with each spin of the virtual wheel.The novelty of the experience soon wore off when it became apparent Chatroulette was host to a large assortment of pranksters and exhibitionists. Users hoping to luck into some scintillating video chat were instead greeted with exposed penises and other body parts. (But mostly penises.)This especially unsavory aspect of the service was assumed to be its legacy -- one that would see it resigned to the junkheap of failed social platforms. Chatroulette attempted to handle its content problem by giving users the power to flag other users and deployed a rudimentary AI to block possibly-offensive users.The site soldiered on, partially supported by a premium service that paired users with other users in their area or who shared the same interests. Then something unexpected happened that drove a whole new set of users to Chatroulette: the COVID-19 pandemic. More people than ever were trapped at home and starved for human interaction. Very few of those were hoping to see an assortment of penises.Faced with an influx of users and content to moderate, Chatroulette brought in AI moderation specialist Hive, the same company that currently moderates content on Reddit. With Chatroulette experiencing a resurgence, the company is hoping a system capable of processing millions of frames of chat video will keep its channels clear of unwanted content.Decisions to be made by Chatroulette:

We recently announced the winners of our third annual public domain game jam, Gaming Like It's 1925. Now, just like last year, we're dedicating an episode of the podcast to looking at each of the winners a bit closer. Mike is joined by Randy Lubin (our partner in running the jams) and myself (with some unfortunate audio issues that I apologize for), to talk about all these great games that bring 1925 works into the present day.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

A bunch of New York City law enforcement unions have been suing to block the side effects of the repeal of 50-a, an ordinance passed in 1976 that exempted police departments and other agencies (like fire departments) from disclosing information about misconduct to the public.For more than 40 years, the bad law remained in place. It took nationwide anger of the killing of another black man by a white cop to get it taken off the books. In response, a bunch of unions presiding over the New York City's police and fire departments lawyered up, hoping to continue withholding this information.The legal battle has reached the Second Circuit Court of Appeals. And the Appeals Court doesn't find the plaintiffs' assertions about "irreparable harm" credible. The unions claim the repeal of 50-a (and the consequent release of disciplinary records) violates agreements they have with the city -- one that says findings in favor of officers/employees will be removed from employees' disciplinary records.The Appeals Court [PDF] points out that the unions can't just decide the public employees they represent don't have to follow the law.

You'll recall that after the Trump FCC effectively neutered itself at telecom lobbyist behest in 2017, numerous states jumped in to fill the consumer protection void. Most notable among them being California, which in 2018 passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules, claiming they were "radical" and "illegal" (they were neither).And while the broadband industry had a great run during the Trump era nabbing billions in tax breaks and regulatory handouts, that era appears to be at an end.Earlier this month the Biden DOJ dropped its lawsuit against California, leaving the industry to stand alone. Now a Judge has refused the broadband industry's request for an injunction, allowing California to finally enforce its shiny new law. Worse (for the broadband sector), Mendez also made it very clear that while the case isn't over yet, the broadband industry isn't likely to win. He was also less than impressed by the broadband industry's claim that because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren't necessary:

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It has become an article of faith among some that the big social media sites engage in "anti-conservative bias" in their moderation practices. When we point out, over and over again, that there is no evidence to support these claims, our comments normally fill up with very, very angry people calling us "delusional" and saying things like "just look around!" But they never actually provide any evidence. Because it doesn't seem to exist. Instead, what multiple looks at the issue have found is that moderation policies might ban racists, trolls, and bigots, and unless your argument is that "conservatism" is the same thing as "racism, trolling, and bigotry" then you don't have much of an argument. In fact, studies seem to show that Facebook, in particular, has bent over backwards to support conservative voices on the platform.Last fall a report came out noting that when an algorithmic change was proposed to downgrade news on Facebook overall, the fact that some extremist far right sites were so popular on the site, the company's leadership, including Mark Zuckerberg were so afraid that Republicans would accuse them of "anti-conservative bias" that he stepped in to make sure the algorithm also downgraded some prominent "left-leaning" sites, even though the algorithm initially wasn't going to -- just so they could claim that both sides of the traditional political spectrum were downgraded.Over the weekend a new report came out along similar lines, noting that Facebook's policy team spent a lot of time and effort putting in place a policy to deal with "misinformation and hate." Not surprisingly, this disproportionately impacted far right extremists. While there certainly is misinformation across the political spectrum -- especially at the outer reaches of the traditional political compass, it's only on the right that it has generally gone mainstream. And, again, the same political calculus appeared to come into play. After the policy team worked out more neutral rules for dealing with misinformation and hate, Zuckerberg apparently stepped in to overrule the policy, and to make sure that wack job supporters of Alex Jones and similar conspiracy mongers were allowed to continue spewing misinformation:

Economists repeatedly warned that the biggest downside of the $26 billion Sprint T-Mobile merger was the fact that the deal would dramatically reduce overall competition in the U.S. wireless space by eliminating Sprint. Data from around the globe clearly shows that the elimination of one of just four major competitors sooner or later results in layoffs and higher prices due to less competition. It's not debatable. Given U.S. consumers already pay some of the highest prices for mobile data in the developed world, most objective experts recommended that the deal be blocked.It wasn't. Instead, the Trump FCC rubber stamped the deal before even seeing impact studies. And the DOJ not only ignored the recommendations of its staff, but former Trump DOJ "antitrust" boss Makan Delrahim personally helped guide the deal's approval process via personal phone and email accounts. Both agencies, and the vocal chorus of telecom-linked industry allies, all behaved as if all of this was perfectly legitimate and not grotesquely corrupt.At the heart of the DOJ's approval was a flimsy proposal that involved giving Dish Network some T-Mobile spectrum in the hopes that, over seven years, they'd be able to build out a replacement fourth carrier. As we noted at the time there was very little chance this plan was ever going to work. And there's been several hints that we're already stumbling along this doomed trajectory.One, Dish and its former CEO Charlie Ergen have a long history of empty promises in wireless. He'd been accused (including by T-Mobile previously) of simply hoarding valuable spectrum and stringing along feckless, captured regulators for years with an eye on cashing out once the spectrum's value had appreciated. Two, AT&T, Verizon, and T-Mobile are all heavily incentivized to make sure this proposal never got off the ground. Three, federal regulators are generally afraid to stand up to industry on a single issue of substance, and aren't likely to engage in the kind of hard-nosed nannying required to usher Dish's plan from pipe dream to major network.Not too surprisingly, it doesn't sound like the relationship between Dish and T-Mobile is going particularly well as the company bleeds wireless subscribers (it lost 363,000 last quarter alone). A cornerstone of getting Dish up and running as a viable replacement fourth carrier involved the company leaning heavily on T-Mobile's existing 3G network. But that network is being shuttered as of the beginning of next year, Dish said in a filing:

Last October, Senators Ron Wyden and Elizabeth Warren asked the IRS's oversight to take a look at the agency's use of third-party data brokers to obtain cell site location info harvested from phone apps. This new collection of location data appeared to bypass the Supreme Court's Carpenter decision, which said cell site location info was protected by the Fourth Amendment.This means warrants were needed to obtain this information from cell service providers. Multiple government agencies -- including the CBP, DEA, and Defense Department -- appear to believe approaching data brokers a couple of steps removed from the location data collection process aren't affected by this warrant requirement. While both cell site location info from cell providers and bulk data from brokers can accomplish the same long-term tracking of individuals, the latter tends to be less detailed since it sometimes requires apps to be in use to produce location data, rather than just connected to a cell tower.The IRS may have believed no warrants are needed to buy bulk data from brokers, but its oversight disagrees. The Treasury Department Inspector General says the 2018 Supreme Court ruling may cover this data as well.

It's no secret that in the year and a half since Google launched its video game streaming platform, Stadia, things haven't gone particularly well. Game developers were wary at the onset that Google, as it has with projects like this in the past, might simply one day shut the whole thing down if it thinks the venture is a loser. The launch of Stadia itself was mostly met with meager interest, due to scant games available on the platform. Even then, the rollout was a mix of chaos and glitch, critiques of its promise for true 4k game streaming, very low adoption rates, and some at the company appearing to want to go to war with game-streamers.And now, there are signals that the trouble is worsening. Google recently announced, completely without warning, that it was shuttering its in-house Stadia game development studio.

People have been very angry at me for pointing out that Facebook's decision to ban links to news down under actually made sense -- even though Facebook has now cut a deal to return the links. The move was in response to an incredibly poorly thought out law to force Facebook and Google to pay giant news organizations, just because those news organizations couldn't figure out how to innovate online. One key point: I said that even if Facebook is the worst representative of the "open web," this move is the right one for the open web. That's because the alternative is much worse. Since the Australian law would force Google and Facebook to pay for the crime of linking to news, it would set up the incredibly anti-open web concept that you could be forced to pay to link.Again, as we've already explained, this is idiotic. The links give websites free web traffic. Most news organizations, including those down in Australia, employ SEO and social media managers to try to get more links and more traffic from these websites because the links themselves are valuable. And thus, this entire bill is bizarre. It's saying that not only do you have to give us valuable traffic for free... you also have to pay us. I still can't think of any reasonable analog, the situation is so insane.But -- some people argue back -- Facebook is no champion of the open web. Indeed. I've never argued otherwise. It's not. But this move was important to protect the open internet (and it's now disappointing that the company has caved). But, of course, this move also has demonstrated why Facebook has, historically, been a danger to the open web as well. And that's because when it blocked access to news links in Australia, it also did the same for many Pacific islands. And while we've mocked Australians who don't seem to realize they can just go to the websites of news organizations, for some of these Pacific islands, that's not actually the case. Because of Facebook's other attacks on the open web.For years, we've pointed out the evil that is Facebook's "Free Basics" program. This is a form of "zero rating," in which Facebook would subsidize (or even make free) access in remote parts of the world... but only to Facebook. Facebook, of course, framed this as a way of "connecting the poor" and helping to get affordable internet access to places that didn't have it. But that's not true. It only gave them access to Facebook. As many people have pointed out over the years, if Facebook really wanted to subsidize internet access in these parts of the world, it should have have subsidized real access to the wider internet, not just Facebook.So, now, these two things have collided in the South Pacific. Facebook's anti-open internet policies with zero rating, and Facebook's pro-open internet decision to not link if it requires payment. And those who bought into the false prophet of Free Basics, are now suffering:

Smartphone app store policies have come into focus recently, following a series of recent conflicts between app makers and app store operators (principally Apple and Google). These include the removal of conservative-oriented social media platforms Parler and Gab, and the ensuing debate about balancing free speech and harmful content. There have also been numerous conflicts over monetization, including disputes over transaction fees for digital goods and services (e.g. Epic Games), and privacy changes that affect third party advertisers (e.g. Facebook).With scrutiny of the tech industry at an all time high, the otherwise niche issue of app store policies has become an increasingly salient part of the broader debate over digital market competition, raising the specter of new government regulation. But what is the optimal level of openness in a competitive app ecosystem, and how does public policy help achieve it? These are harder questions to answer than they seem—involving deep technical, economic, and legal issues.A Tale of Two Smartphone Operating SystemsAccording to Statcounter, the global mobile operating system market is dominated by Google’s Android operating system (72% market share), followed by Apple’s iOS (27% market share). Despite having a substantially smaller user base, the Apple App Store earns substantially more direct revenue than the Google Play Store. But this is misleading at first glance.First, there are important demographic differences. iPhone owners are more concentrated in developed nations, and even in those countries tend to be more affluent and spend more on apps. Their business models are also different. Unlike Apple, which has limited advertising offerings, Google earns substantial revenues through mobile advertising, and even pays Apple billions each year for the privilege to be its default search engine to expand the revenues it can capture. They are also designed in fundamentally different ways. Whereas iOS is a proprietary closed system, Android is (mostly) open source. Notably, there are versions of Android without Google Play or other Google services, particularly in mainland China where it doesn’t operate. Apple, on the other hand, operates the App Store on all iOS devices; and unlike Google, does business in the lucrative mainland China market.As a result of these different architectures, a conspicuous difference between Android and iOS is that the former allows the installation of apps outside of its Play Store. This can be either through a pre-installed third party app store that ships with the device (e.g. Samsung’s Galaxy Store or the Amazon Appstore), or direct installation of apps or even other app stores, called “sideloading.” Circumventing the Play Store also means that developers can take payments without cutting Google in, typically 30%. Meanwhile, Apple requires users to go through its App Store to download apps, where it takes a similar cut.Policymakers RespondGrasping onto this difference, and facing pressure from lobbyists, policymakers in multiple states have proposed new legislation that would force Apple to redesign their operating system to allow circumventing both the App Store and In-App Purchase system (see similar bills in GA, ND, HI, AZ). Notably, a similar provision also exists in the European Commission’s proposed Digital Markets Act.In theory, this sounds like a good idea. In the wake of recent controversies, many in Silicon Valley have been looking towards decentralization as the answer. Indeed, systems with more openness and interoperability tend to foster innovation and competition, and give users more freedom. The ability to install apps directly could also be an essential workaround when companies remove controversial apps, particularly where they are pressured to do so by activists or governments.However, there are some good reasons to be wary of rushing to pass such a mandate, both as a substantial fix for digital market competition, and as a precedent for local governments dictating or overseeing software designs—something they’re not known to be particularly competent in.Trade Offs of a Sideloading Mandate: Cybersecurity and PrivacySuddenly forcing iOS to allow unvetted apps could introduce a flood of serious cybersecurity vulnerabilities, facilitating everything from spyware to ransomware to identify theft. Such an unanticipated requirement could pose a serious challenge to developers, potentially necessitating years of new work and investment.A 2019 threat intelligence report from Nokia observed that Android devices were fifty times more likely to be infected than iOS, with the “vast majority” of malware distributed through trojanized sideloaded applications. Because of this risk, Android takes measures to discourage sideloading through user interface mechanisms. Google’s Advanced Protection Program also blocks sideloaded apps for this reason.Because Android is a more open system than iOS, its privacy and security features are constructed differently. While both operating systems have some form of automated threat detection, app containerization, and other features to limit an app’s access to sensitive systems, these are architected based on different assumptions.For Apple, a closed-system approach is at the heart of its strategy for iOS. If Apple engineers could no longer count on vetting during the app review process, they may be forced to build new redundancies from scratch, or even redesign major parts of the operating system. Because iOS isn’t open source like Android, it’s hard to tell how much of an architectural challenge this will be.Apple’s preference for closed systems can be traced to Steve Jobs’ philosophy of end-to-end control of hardware and software, and lack of patience for consumer tinkering, going all the way back to the first Macintosh computer. In 2007, around the launch of the first iPhone, Steve Jobs described applying this thinking to iOS (then “iPhone OS”) in an interview with the New York Times:

The Arizona Department of Corrections is depriving inmates of freedom they've earned. Its $24 million tracking software isn't doing what it's supposed to when it comes to calculating time served credits. That's according to whistleblowers who've been ignored by the DOC and have taken their complaints to the press. Here's Jimmy Jenkins of KJZZ, who was given access to documents showing the bug has been well-documented and remains unfixed, more than a year after it was discovered.

Two separate stories from Southeast Asia help demonstrate why intermediary liability protections like Section 230 are so important for free speech online (and why it's positively ridiculous that some have argued that 230 is an attack on free speech). The first is an article about a court case in Malaysia, in which a small independent media site has been fined an astounding amount: $124,000 over five reader comments that a court said violated the law. Notably, the website in question, Malaysiakini, had removed those comments relatively quickly. But the court said that the removals weren't fast enough:

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Facebook is restoring news links in Australia after the government agreed to amend the proposed link tax law. We'll explain the details down below, but at the very least, this shows part of the reason Facebook did what it did, when it did. The end result still sucks, and I wish Facebook had stood its ground here because this portends a significant closing off of the open internet.Many of the people who were annoyed over my support of Facebook's decision last week to block all news links in Australia kept saying "but the law hasn't passed yet -- why would they do this now?" Except... that ignored the reality of the situation. Facebook had announced last summer that it would remove links to all news if the law wasn't changed. And the Australian Parliament mocked Facebook and refused to make any changes to the law -- which was set to pass this week.So, Facebook showed that it was serious about what it said last September, and it did so days before the law was supposed to pass... and now the Australian government has agreed to make changes. So, Facebook did get something out of making the move last week. Unfortunately, they didn't get nearly enough, and the end result is a disaster for the open web, but good for Rupert Murdoch.The law is still really bad. The only major difference is that Facebook gets a little more time to cut a deal with Murdoch and other Australian news org owners:

Five years or so ago, frustration at John Deere's draconian tractor DRM helped birth a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair (which for many owners involved hauling their tractors hundreds of unnecessary miles), or toying around with pirated firmware just to ensure the products they owned actually worked.John Deere certainly isn't alone in trying to monopolize repair, resulting in massive backlash and proposed legislation in more than fourteen states. Hoping to appease angry consumers and lawmakers, in late 2018, John Deere and a coalition of other agricultural hardware vendors promised (in a "statement of principles) that by January 1, 2021, Deere and other companies would make repair tools, software, and diagnostics readily available to the masses. In short, they managed to stall right to repair laws in several states in exchange for doing the right thing.As it turns out, they never bothered to really follow through:

With enough self-delusion, any act of humanity can be considered a criminal act. It works for cops. It also works for the general public. When you're a suspicious busybody with an overactive imagination and too much time on your hands, you can waste everyone's tax dollars by panicking.A Walmart employ, who is apparently convinced human trafficking is as common as the common cold, decided to get law enforcement involved, resulting in this message from the Coshocton (OH) County Sheriff's Office:

Last summer, we discussed Apple opposing the trademark application for recipe app PrePear. While the tech company and a company that attempts to promote healthy eating aren't competing with one another, Apple argued that PrePear's logo was deceptively similar to its own. Here they are, side by side.As we pointed out previously, it should be immediately obvious how dumb Apple's claims are. The two logos look nothing alike, have different color schemes and style types, and consist of totally different fruits. That PrePear has a pear in its logo and name only drives the point home further. Despite that, rather than backing down in shame, Apple expanded its attack to Canada, where it also opposed the trademark application there. PrePear had to lay off at least one of its handful of employees as a direct results of the costs associated with the opposition.Which probably makes it all the more irritating to find that this has all now been settled such that Apple's demands for action are so frustratingly insignificant so as to make everyone wonder what the hell the point of all this was to begin with.

It seems I'm always writing about Section 230 or copyright or some sort of regulatory effort driven by antipathy toward technology. But one of my favorite posts I've ever written here is this one, "We Interrupt All The Hating On Technology To Remind Everyone We Just Landed On Mars." Given that we just landed on Mars again it seems a good time to revisit it, because it seems no less important today than it was in 2018 when I originally wrote it. Just as it seems no less important that we just landed on Mars again. In fact, it all may matter even more now.Today we find ourselves even more mired in a world full of technological nihilism. It has become a well-honed reflex: if it involves technology, it must be bad. And in the wake of this prevailing distrust we've developed a political culture that is, at best, indifferent to innovation if not often downright eager to stamp it out.It's a poisonous attitude that threatens to trap us in our currently imperfect world, with no way to solve our way out of our problems. But recognizing what an amazing achievement it was to successfully land on Mars can work as an antidote, in at least two important ways:First, it can remind us of what wonder feels like. To dream the most fantastic dreams, and then to go make those dreams happen. Mankind hasn't gazed at the stars in ambivalence; the heavens have been one of our greatest sources of inspiration throughout the ages. That we have now managed, for the first time in the history of human civilization, to put another planet within our grasp should not extinguish that wonder, with a glib "been there, done that" shrug. Rather, it is a cause for enormous celebration and should do nothing but inspire us to keep dreaming, next time even bigger.Because if there's one thing this landing teaches us, apart from the tangible fruits of our exploration, it is to believe in ourselves. Our failures and disappointments here on Earth are serious indeed. But what this success demonstrates is that we can overcome what was once thought impossible. It may take diligence, hard work, and faithful adherence to science. And our human imperfections can sometimes make it hard to manage these things.But landing on Mars reminds us that we can and provides us with an amazing example of how.

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

It's not just a home surveillance system. It's a surveillance system.Documents obtained by the EFF and shared with The Intercept show law enforcement used footage from Ring doorbell cameras -- cameras some people have obtained for free from Ring's thousands of law enforcement "partners" -- to hunt down people protesting police violence.The documents show the Los Angeles Police Department sent requests to Los Angeles residents asking them for footage recorded by their cameras. But the LAPD did not specify what sort of footage it was looking for. The task force making the request was charged with investigating crimes committed "during protests and demonstrations."This information was vaguely conveyed to Ring owners in the area. The requests didn't even bother to specify whether the "incident" the LAPD was investigating could even have been captured by the doorbell cameras targeted by this request.

I am still perplexed and confounded at how many people seem to think that Facebook is the one at fault for blocking links to news in Australia. Again, the law (that was about to be approved by the Australian Parliament despite Facebook warning them months ago that it would be forced to block news links if it went forward in its current form) would have been a disaster for the open web. And that's even if you believe that Facebook itself has been a disaster for the open web. You can say that Facebook is the worst company in the world... and still recognize that this was the right move.The law mandated that if Facebook had any links to news, then it had to negotiate a deal to pay certain news organizations (mainly Australia's largest news organizations, where Rupert Murdoch is the dominant owner in a news industry that is one of the most consolidated in the world). If Facebook and Murdoch couldn't reach an agreement, then they had to go to binding arbitration in which an arbitrator would simply tell Facebook how much it had to give Murdoch and other major media owners. Some have argued that this is not a tax, but... having the government step in to force a company to pay money for doing business is, by any normal definition, a tax. Though, this is actually worse than a tax, because it's not putting the money into the hands of the government to be invested in public works. It's going to one of the richest people in the world. For what? For failing to adapt to a changing market.As we noted a few years ago, it's truly stunning that Murdoch, who has spent much of his life going around the world preaching the gospel of "free market" and deregulation, completely changed his tune when he completely misunderstood the internet, and saw multiple internet investments disappear. So he turns around and demands that the companies who actually innovated simply have to give him money? That doesn't sound like a free market. It sounds like welfare for a billionaire who's upset he's not even richer.Even so, the most bizarre thing about last week's story is how many Facebook haters who have insisted for years that Facebook "killed" the news business were absolutely apoplectic that Facebook was getting out of the news business entirely. You'd think they'd celebrate. Facebook can't keep killing the journalism business if it's not in that business any more.The other bizarre reaction -- which filled my Twitter feed to a point of ridiculousness for days -- was the claim that Facebook was somehow "blocking important news" in Australia, including news about the pandemic and vaccines. Except... it wasn't. No news was "blocked." Just links to news on Facebook. All of these news organizations have websites. And many have apps. And they all still exist.Indeed, the most amusing thing in all of this is that people in Australia are suddenly discovering that they don't need Facebook for news. The Australian Broadcasting Company (ABC) saw its own news app shoot to the top of the Apple App Store charts in Australia. Ironically, the original draft of this stupid law was so biased towards Murdoch that it originally excluded ABC from getting any money, and was only added later, after some folks pointed out how blatantly corrupt it was to leave them out and just funnel more money to Murdoch. But it's not just ABC that has benefited. In a Reuters story, News Corp's executive chairman in Australia, Michael Miller, admitted that direct traffic to their websites was way up as referrals from Facebook disappeared:

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Long time copyright watchers know that Metallica sullied its reputation with tons of fans when it was the first band to sue the file sharing upstart Napster back in 2000 (and also sued three universities for "not blocking Napster"). The band's drummer, Lars Ulrich, became an outspoken critic of file sharing and the internet, the early face of super wealthy musicians whining about the internet changing the way they did things, leading to the classic Money Good! Napster Bad! meme.Over the years, Metallica has tried to do more to "embrace" the internet, but almost every time, fans jump up to remind them about what assholes they were towards the early internet experience.And that brings us around to Friday evening, when Metallica was set to play a streamed "live" show to kick off BlizzCon (an event for video game company Blizzard). The event was streamed live on Twitch, which has had some copyright problems of late. It appears that as Metallica was playing, and the Twitch Gaming channel was streaming the concert, someone realized that there might be a copyright problem. As first called out by Rod Breslau, the channel inserted 8-bit folks music over Metallica's live performance to avoid a situation that, uh, Metallica might sue over.

Since the very beginning of the net neutrality debate, ISPs have repeatedly (and falsely) proclaimed that net neutrality rules (read: stopgap rules crafted in the absence of competition to stop giant monopolies from abusing their power) utterly demolished broadband sector investment. It was a primary talking point during the battle over the flimsy 2010 rules, utilized extensively during the 2015 passage of slightly tougher rules, and was foundational in the Trump FCC's arguments justifying their hugely unpopular and fraud prone repeal of those rules.Time after time after time, big ISPs (and the politicians and regulators paid to love them) lied and claimed that the modest rules (by international standards) had crushed sector investment. Then, when the rules were repealed, they again lied that this had triggered a massive new investment wave. Never mind that countless different studies showed the rules had no impact on investment. If that wasn't enough, it was repeatedly confirmed by ISP earnings reports, and the public statements of numerous CEOs that this claim was never true.It's a lie, the folks pushing it know it's a lie, but they just keep repeating it so it's cemented as gospel among the alternative facts set.With net neutrality potentially getting restored at the Biden FCC (assuming they can get around to appointing a new Democratic Commissioner), the lie is being trotted out again by Trump's last-minute FCC appointment, Nathan Simington. Speaking over at the Free State Foundation on Wednesday, Simington once again trotted out the old, reliable bogeyman:

This week, our first place winner on the insightful side is That One Guy offering up a definition of cancel culture:

Last week, we took a look at ~THE GREAT GATSBY~, one of the recently-announced winners of our public domain game jam, Gaming Like It's 1925. Today, we're moving on to our second spotlight, and looking at the winner of the Best Adaptation category, The Great Gatsby: The Tabletop Roleplaying Game by Segoli.Best Adaptation is always an interesting category in these jams, because every entry is on some level an adaptation, but that doesn't mean they are all truly good candidates for the prize. Some make use of elements of a public domain work in a way that detaches them from their source, others focus so closely on the source that it is more like a study of the original — both those things can be amazing, and both approaches show up among our winners this year. But there's also something special about a game that turns a public domain work into something brand new while also carrying forth and further exploring its original meaning and context. That's the kind of game that is a candidate for Best Adaptation, and that's the kind of game The Great Gatsby: The Tabletop Roleplaying Game is.As the name suggests, the game follows the contours of a typical TTRPG, with players taking on various characters and participating in a story (in this case, the story of The Great Gatsby, at least to begin with...) aided by a game master and some dice rolls. What makes it especially interesting as an adaptation is how it frames things for the game master: they are given a concise synopsis of the events of the novel, and encouraged to focus on whether their players are making more traditional choices that adhere to the original story, or wilder choices that rapidly diverge from it. Whichever way the players are leaning, the GM is encouraged to act as a counterbalance, throwing in fresh twists to push a traditional story off-course, or adding period-appropriate obstacles that force more divergent players to remember and address the setting. A lot of conventional wisdom says GMs should always try to flow with their players and take the game in the stylistic direction they want to take it, and downplay the idea that the GM acts "in opposition" to the players, but the framing of the advice in this game is actually quite brilliant: it means the players' tastes will shape the challenges they face in a satisfying way, while also keeping the game orbiting around the work it is adapting, and examining that work from different angles depending on the way the players want to interact with it.Of course, there's another great way to win our hearts here at Techdirt, and that's by putting ideas around copyright and the public domain directly inside a game. The Gatsby TTRPG does exactly that, and it's just great. See, there's something I haven't mentioned yet: while the setting and story is firmly rooted in the novel, the player characters are not. Rather, players are required to be other public domain characters, turning the game into a mashup of Gatsby and any number of other works. And the instructions include a list of possible options, and a whole bunch of great intellectual property jokes that our audience here will surely appreciate:

Somehow we missed covering this in 2019, but in those much more innocent times the company behind FyreTV, which bills itself as a service that is "the Netflix of porn", sued Amazon over its Fire TV product. The claim by FyreTV's Wreal LLC ownership was that the public would be confused into thinking that Amazon was somehow behind its pornographic offerings, or that some affiliation between the two entities was in place. The claims rested on exactly what you'd expect, essentially that the two product names are phonetically identical and that both involve providing video-based entertainment. That the types of that entertainment are as wildly different as could possibly be apparently didn't concern Wreal LLC. Instead, they came to court with a couple of social media posts essentially poking fun at the similar names as though it were some kind of proof of confusion.The court tossed the lawsuit in 2019, but Wreal LLC has now asked an 11th circuit panel to bring the suit back to life. To revive the suit, lawyers for Wreal LLC provided literally nothing new in its claims.

Get your tickets for Section 230 Matters before February 23rd »There are just a few days left until Tuesday, February 23rd, and our Section 230 Matters event, celebrating Section 230, including a discussion with the two coauthors of the law, Chris Cox and Senator Ron Wyden. The event starts at 12:30pm PT. We're using a cool virtual events platform called Remo that will allow for networking/conversation prior to the panel. We'll take audience questions, via a built in system during the discussion, and then have post-panel table discussions.This will be a fun and interesting event -- and also a way to support Techdirt, helping us to continue our reporting on Section 230 at a moment when it is literally front page news (for all sorts of ridiculous reasons). We look forward to seeing many of you next week!

Summary: In 2008, the Senate Homeland Security and Government Affairs Committee, chaired by then Senator Joe Lieberman, produced a report entitled: “Violent Islamist Extremism: The Internet, and the Homegrown Terrorist Threat.” The report mentions a rap video called “Dirty Kuffar” (Kuffar meaning “nonbeliever”) that, according to the report, praises Osama bin Laden and the attacks of 9/11.A few days after the report came out, Lieberman sent a letter addressed to then Google CEO Eric Schmidt pointing to the report and asking the company to remove terrorist content from the site, including things like the named video.As some quickly pointed out, the one video named in the report was hardly espousing terrorism or hate speech. It may be mildly offensive, but it was clearly protected political speech.The letter that Lieberman sent was accompanied by a list of other videos that Lieberman’s staff claimed were promoting terrorism content, and Lieberman asked YouTube to not only remove the specific videos that violated its policies, but to shut down the accounts of those who posted the videos in the first place.Decisions for YouTube:

What if you could get a patent on a new government program? Then, you could ask for the government to pay you royalties just for running that program. Nice work, if you can get it.Oregon resident Iiley Thompson is the named inventor on U.S. Patent No. 10,257,651, “Mobile electronic device for identifying and recording an animal harvest.” Shortly after his patent issued in 2019, Thompson’s lawyers sent a letter to the Oregon Department of Justice, suggesting that the Oregon government take a license to his patent.Thompson claims that the Oregon Department of Fish and Wildlife’s MyODFW app, which allows hunters and anglers to complete their licensing paperwork on a mobile device, infringes his patent.Claim 1 describes:

An estimated 42 million Americans lack access to broadband, nearly double official FCC estimates. That's kind of a problem during a pandemic when your education, employment, family connection, healthcare and very survival depend on being tethered to the internet. And it's a particular problem for the tens of millions more Americans who can't afford access because we've happily allowed the US telecom sector to become monopolized by a handful of providers.Last year, the nation's schools and libraries came to the Trump FCC with a novel idea to bridge the gap during the crisis: why not let libraries and schools temporarily provide broadband access to their communities? The FCC's E-Rate program already helps bridge the digital divide by financing a portion of school and library broadband access. But the rules don't clearly allow them to offer service beyond property lines. So, the American Library Association, which represents the country's 16,557 public libraries, wrote a letter (pdf) to the Ajit Pai FCC, asking if they could provide emergency access without the FCC punishing them for it.And the Ajit Pai FCC simply... didn't answer their question. The FCC made it clear schools and libraries could leave on existing WiFi hotspots so folks on the wrong side of the digital divide could huddle together in school and library parking lots, but it simply ignored their request to be able to deliver more creative solutions, be it letting students have temporary access to mobile hotspots at home, or the creation of things like mobile WiFi-capable bookmobiles. The FCC Chair has the emergency authority to make this happen, Ajit Pai just... didn't want to.With new leadership at the FCC, some lawmakers are pressuring the agency to revisit the idea so that kids don't have to huddle outside of Taco Bell just to attend class in the wealthiest country in the history of the planet:

Earlier this month, we wrote about how various Republicans in state legislatures were introducing blatantly unconstitutional bills that tried to do away with Section 230 and which all attempted to block the ability of websites to do any content moderation. Many of the bills were nearly identical (and may have come from Chris Sevier, the profoundly troubled individual, who somehow keeps convincing state legislators to introduce blatantly unconstitutional bills that attack speech online). One of the bills we mentioned was from North Dakota. Lawyer Akiva Cohen points out that the North Dakota bill has been updated... and (incredibly) made even more blatantly unconstitutional.Most notably, the new amendment from Rep. Tom Kading, would not only gut Section 230, but would stop any website from doing any moderation of any user for their viewpoints. Any viewpoints. Anywhere (even off platform). And then... it adds in a private cause of action, saying that would allow a user to sue any website for moderation:That says:

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For the first few decades after video games became a serious medium of entertainment among the public, they were also blamed for all manner of ills. Violence in children was chief among the concerns, of course, but so too were claims that video games made kids anti-social, apathetic, and fat slobs stuck in their parents' basements. It was only part of the way into the 2010s when the studies on the topic of video games started making a notable turn away from these dire warnings. Oxford University's Andrew Przybylski had his hands on many of these new studies, such as the one indicating games only made people violent if they were too shitty or difficult, or his study decoupling social media from any causation of unhappiness in children.Well, Przybylski is at it again with an interesting study that seems to indicate some correlation, though not causation, between time spent playing video games and "well being."

Having covered telecom for twenty years, I've found there's a good shortcut to determining if somebody's really serious about fixing US broadband issues: can they admit that (1) monopolies exist, and (2) that this results in a lack of competition. The data is indisputable on this point. US broadband is heavily monopolized, and as a result is mediocre on nearly every metric that matters, whether we're talking about availability, speed, price, or customer service.And yet, there's a parade of lawmakers, regulators (like former FCC boss Ajit Pai), think tankers and others who are, for either financial or rigid ideological reasons, still incapable of acknowledging that reality. As a result, they can't really fix the problem.Take the lion's share of the GOP, for example. The party just spent four years gutting most meaningful oversight of America's broken broadband sector under the completely false claim that this would somehow result in monopolies like AT&T and Comcast doing a better job, expanding access, and boosting overall network investment. That simply never happened, and anybody claiming otherwise is lying to you.Now, with Covid shining a bright light on the essential nature of broadband, the GOP has been forced to at least pretend they care about the problem. As a result, they've ushered forth a series of bills professing to "bridge the digital divide." Not too surprisingly, not a single bill acknowledges that private sector monopolization, limited competition, or high prices are even a problem.Instead, the focus of all of the GOP's bills are focused exclusively on placing the blame entirely on the back of local governments. And while governments can sometimes be a pain in the ass to work with (not that working with Verizon, AT&T or Comcast is any real treat for governments either), the problem at this point isn't really local government. We've spent twenty years hamstringing local government authority and giving all the power to incumbent private players through a litany of policy. And the result has been: precisely the shitty, Comcast-dominated market we all know and love. "More of that," is not a serious solution.Yes, there's the occasional example where cumbersome regulatory underbrush could still be cleared out, or common sense policies to speed up deployment could be enacted (like "dig once" legislation requiring fiber or conduit be run alongside any new highway bill). But again, the real problem isn't local government when it comes to US broadband. The real problem is regional monopolists so politically powerful that nobody on the state or federal level, often from either party, has the backbone to stand up to them. The result is a mish-mash of ass kissing dressed up as real policy.In fact, one of the bills, Missouri Rep. Billy Long's Communities Over regulating Networks Need Economic Competition Today6 Act, (pdf) actively tries to ban communities from building their own networks. As we've noted, such networks are an organic, grass roots reaction to obvious market failure, and they've proven to be invaluable during the pandemic. Not only do they deliver some of the fastest speeds in the country, they're a novel way to force lazy incumbent monopolists to try harder.The Act title makes no coherent sense, as the bill would hinder, not encourage, competition. There are, of course, already twenty odd state laws, literally written by AT&T or Comcast, that hamstring community broadband. The industry has spent years trying to push for a federal ban on such local networks, for no other reason than they would harm AT&T, Verizon, Comcast, or Charter's bloated revenues.Usually, these bans are piggybacked on the false claim that such community networks are an inevitable taxpayer boondoggle. Yet, not coincidentally, you'll never see these folks complain when AT&T is given a $42 billion tax cut in exchange for absolutely nothing. They similarly have nothing to say when billions are doled out to regional monopolies that repeatedly fail to deliver those networks. Not a peep.One sad and frustrating aspect of America is how little it costs a company like AT&T to buy proposed legislation. For telecom giants, it's easier to give somebody like Billy Long $60,000 in PAC donations than to upgrade their networks in lower ROI areas (despite billions in tax breaks and subsidies to that end).Real solutions for US broadband problems start with the understanding that monopolization and corruption are the reasons US broadband sucks. If you can't do that, you're not actually interested in solving the problem, you're engaged in performative fluff and nonsense. Either because you don't actively understand the market you're talking about, or you're working, indirectly or not, to help entrenched monopolists preserve the status quo.

Back in 2010, we discussed that the at-the-time "spin class" craze in the fitness world was encountering the fact that one company, Mad Dogg Athletics, held a trademark on the term "spinning" for use in the fitness industry. Mad Dogg had taken to going around the world and threatening anyone else using the term with trademark infringement as a result. And, to be clear, they had a lot of targets for these threats, which factored into the argument that term was now generic and hadn't been properly enforced as a trademark for years.Since 2010, the spin class craze has morphed out of the brick and mortar gym and into home fitness, with the current fad being app-driven home stationary spin bikes. The leader in that field is, of course, Peloton. Mad Dogg sued Peloton for trademark infringement last year over patents it holds for core features of its bikes. In what may be something of a clap back in that dispute, however, Peloton has now petitioned to have Mad Dogg's "spinning" trademark canceled entirely.

With Congress spending a lot of time these days demanding answers from big tech firms, you may have noticed a notable similarity in style regarding how they respond to these kinds of inquiries.Thank you very much for inviting my input on the topic of being grounded. I appreciate the opportunity to engage with Mom regarding this important discussion.I take living under your roof very seriously. I am proud to be a recognized leader in crucial household initiatives such as making the bed and setting the table. Last year, data rigorously collected by the chores chart on the refrigerator[1] shows that I folded the laundry 48 times, a 200% increase year over year. [2] My contributions in these areas demonstrate my ongoing commitment to this family.From time to time, I may adjust my going-out policies based on data-driven decision-making and evaluation of the current regulatory environment. My interpretation of curfew is based upon guidance from Dad who said 1:00 a.m. was OK, but you weren’t there, I think you were at the store. If the conclusions I drew from this guidance do not reflect parental intent, I regret the miscommunication and appreciate the chance for clarification.My policies are consistent with industry best practices in this area. According to my most recent review, Jennifer's mom lets her come home at 1:00 a.m. on Fridays and Saturdays, and Denise's mom lets her sleep over at a boy's house so long as his mom calls her mom first. Accordingly, I believe that my going-out policy reflects standard parental expectations in the community where I operate.Should you have any additional requests for information, I can be reached in my room via text message. Mom, gawd, just text me like a normal person. No I won’t hear you knock because I always have my earbuds in. Well I put them in because you complained I was playing my music too loud, JEEZ I CAN’T DO ANYTHING RIGHT I HATE IT HERE [bursts into tears, storms upstairs]Thank you again for the opportunity to continue the dialogue on this critical issue. I look forward to answering your questions.[1] See Attachment A.

It would be something of an understatement to say that the COVID-19 pandemic has had a big effect on our lives. One sector where people have had to re-invent themselves is the academic world. Core in-person activities like lectures, seminars, and conferences have been forced to move online. One advantage of a shift to virtual gatherings is that people can participate from around the world. However, for governments, that's less a feature than a bug, since it means they have less control over who is taking part, and what they are saying. In response to this development, the Ministry of Education in India has issued "Revised Guidelines for holding online/virtual Conferences, Seminars, Training, etc." (pdf). An opinion piece in The Indian Express calls it the "biggest attack in the history of independent India on the autonomy of our universities":

Our nation's preeminent drug warriors rolled the dice on turning less than a half-gram of drugs into a lengthy prison sentence. They lost. The Sixth Circuit Court of Appeals isn't amused by the machinations of DEA agents (and federal prosecutors) who tried to turn a freebie sample into a drug trafficking conspiracy.The opinion [PDF] opens with the Appeals Court showing just how permissive and expansive drug conspiracy statutes are.

One of the arguments for changing Section 230 is that even if we needed it a long time ago when the Internet was new, now that the Internet has been around for a while and some of the companies providing Internet services are quite big, we don't need it anymore. This view is simply untrue: Internet service providers of every size still need it, including and perhaps even especially the big ones because they are the ones handling the greatest volume of user expression.Furthermore, Section 230 was never specifically aimed at start-ups. Indeed, from the outset it was intended to address the legal problems faced by an established incumbent.The origin story for Section 230 begins with the Stratton Oakmont v. Prodigy case. In this case a New York state court allowed Prodigy to be sued over speech a user had posted. By doing so the court not only hurt Prodigy right then, in that case, but it threatened to hurt it in the future by opening the door to more lawsuits against it or any other online service provider—which would also be bad news for online expression more broadly as well. In the shadow of this decision services weren't going to be able to facilitate the greatest amount of valuable user expression, or minimize the greatest amount of detrimental. Even back then Prodigy was handling far too many posts by users for it to be possible to vet all, or even most, of them. While that volume might today seem like a drop in the bucket compared to how much expression Internet services handle now, the operative point is that use of online services like Prodigy had already surpassed the point where a service provider could possibly be able to review everything that ever appeared on its systems and make decisions about what to leave up or take down perfectly. If that's what they needed to do to avoid being crushed by litigation, then they were looking at a future of soon being crushed by litigation.And that was the case for Prodigy even though it was an established service. As an *Internet* service provider Prodigy may have been new to the game because the Internet had only just left the realm of academia and become something that commercial service providers could provide access to. But it was hardly new as an "interactive computer service" provider, which is what Section 230 actually applies to. True, Section 230 contemplates that interactive computer service providers may likely provide Internet-based services, but it doesn't condition its statutory protection on being connected to the Internet. (From 47 U.S.C. Section 230(f)(2): "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…"). To be eligible for Section 230 the service provider simply needs to be in the business of providing some form of interactive computer service, and Prodigy had been doing that for well over a decade as a dial-up service with its own proprietary network—just like CompuServe had long done and eventually America Online did as well.Furthermore, Prodigy was a service provider started by Sears and IBM (and briefly also CBS). At the time these were some of the largest companies in America. The "big tech" of the era was "Big Blue" (as IBM was known). And while Sears may have managed to bungle itself into irrelevance in the years since, at the time Section 230 was passed there were few companies more expert in remote commerce than it was. Nevertheless it was the needs of these big companies that Congress was addressing with Section 230 because Congress recognized that it wasn't just their needs that it was addressing. The same legal rules that kept start-ups from being obliterated by litigation were the same ones needed to keep the bigger players from being obliterated as well.The irony, of course, is that Section 230 may have ultimately ended up hurting the bigger players, because in the long run it opened the door to competition that ultimately ate these companies' lunch. Of course, that's what we would still want Section 230 to do: open the door to service providers that can do a better job than the large existing incumbents. It can hardly be said that Section 230 was or is a subsidy to "big tech," then or now, when building that on-ramp for something better is what it has always done and needs to be allowed to continue to do.

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None of this should have been a surprise. Back in September we wrote about Facebook publicly saying that if Australia went forward with its ridiculous attack on the open internet, and instituted a "news link tax" on Facebook and Google, that it would block news links on Facebook in Australia... and basically everyone ignored it. So, yesterday, when Facebook announced that it was no longer allowing news to be shared in Australia (and relatedly, no longer allowing the sharing of Australian news services on Facebook), it should not have been a surprise.And yet... it seemed to make tons of people freak out for all the wrong reasons. Almost everyone started blaming and attacking Facebook. And, look, I get it, Facebook is a terrible, terrible company and deserves lots of blame for lots of bad things that it does. But this ain't it. There are a lot of examples of this, but because he's the top member of the House of Representatives working on antitrust issues, I'll specifically call out Rep. David Cicilline's response: