We've noted for fifteen-plus years how entrenched telecom monopolies literally write state telecom laws that ban towns and cities from building their own broadband networks. Even in cases where incumbent monopolies refuse to deploy service. This has gone hand-in-hand with endless (and false) claims that community-run broadband networks are are some kind of vile socialist boondoggle. In reality, data shows these home-grown networks routinely offer faster, cheaper, and better service, in large part because they're run by folks with an active, vested interest in (and direct accountability to) the communities they operate in.That's not to say community-run broadband networks are some mystical panacea, or the answer to the broadband problem in all markets. But it is a successful niche solution for areas out of reach of broadband, and it can help drive competition to markets neglected by incumbents like AT&T, Verizon, or Comcast. As COVID and remote learning/working further highlights the sorry state of U.S. broadband, it's been interesting to watch a steady shift in awareness that just maybe letting giant telecom monopolies write state law to stifle creative broadband alternatives wasn't a good idea.Fixing the "broadband digital divide" will require a huge array of different options. Case in point: Springfield, Missouri is building a fiber optic network for the city, and struck a public/private partnership with CenturyLink which will then lease access on the network. The result: better, faster, cheaper service.
For about a decade now we've been questioning why the government is allowed to seize domains over claims of illegal behavior happening on a website. It seems to us that seizing a website is the equivalent of seizing a printing press or books -- both of which would be deemed clear 1st Amendment violations. Unfortunately, even when those seizures have proven to be for made up reasons, no one has been able to challenge the underlying ability of the government to seize domains. And now it seems to happen all the time. And even if you believe the websites in question are doing something bad, seizing the websites is problematic.The latest such case is the Justice Department announcing that it had seized a bunch of domains pushing disinformation on behalf of Iran's Islamic Revolutionary Guard Corps.
Summary:Facebook has struggled to moderate "hate speech" over the years, resulting in it receiving steady criticism not only from users, but from government officials around the world. Part of this struggle is due to the nature of the term "hate speech" itself, which is often vaguely-defined. These definitions can vary from country to country, adding to the confusion and general difficulty of moderating user content.Facebook's application of local laws to moderate "hate speech" has resulted in collateral damage and the silencing of voices that such laws are meant to protect. In the United States, there is no law against "hate speech," but Facebook is still trying to limit the amount of abusive content on its site as advertisers flee and politicians continue to apply pressure.Facebook moderators use a set of internal guidelines to determine what is or isn't hate speech. Unfortunately for many users, the guidelines -- which they never saw before ProPublica published them -- result in some unexpected moderation decisions.Users wondered why hate speech targeting Black children was allowed while similar speech targeting, for instance, white men wasn't. The internal guidelines explained the factors considered by moderators, which led exactly to these seemingly-inexplicable content removals.According to Facebook's internal guidelines, these categories are "protected," which means moderators will remove "hateful" content targeting anything on this list.
A law enforcement agency looking to dodge oversight has a few options. First, there's the 1033 program, which allows agencies to pick up useful things like guns, bullets, armored vehicles, grenade launchers… and… um… filing cabinets, I guess. Going this route means spending federal money rather than local money. So, if you're not spending local tax dollars, you really don't need to ask permission.Another accountability dodge is the discretionary spending allowed by civil asset forfeiture. Law enforcement agencies directly profit from property seized and are given a lot of latitude on spending those dollars. City/county oversight is rarely involved. Very few localities have implemented strict reporting on seizures so the money flows from victims through cop shops and into the hands of cop tech purveyors.There's a third option: use private money. Donors with deep pockets and minimal concerns about the people they're bypassing pay for surveillance tech and other law enforcement goodies. Again, because no public money is involved, the public is left out of the equation. This happened in Baltimore, where a Texas philanthropist purchased an aerial surveillance system capable of covering the entire city. No one was told about it until after it went up in the air.The same thing is happening elsewhere. Lots of private companies and individuals are buying stuff for police departments, allowing them to circumvent accountability measures. Some of these "private" concerns should be considered public, considering their narrow focus. As ProPublica reported in 2014, the Los Angeles Police Foundation -- a "private" charity -- asked for $200,000 from Target Corp. to buy the Los Angeles Police Department data analytics software from Palantir. It also purchased several automatic license plate readers for the department. No public oversight was involved since it was "private" money.Joseph Cox reports on more of this public/private bullshit for Motherboard. Another "private" charity -- the San Diego Police Foundation -- has gifted local cops with a high tech phone cracking tool.
Say it with me now: not every last thing needs to be connected to the internet. If we've learned anything through the myriad of posts we have done on the internet of broken things, it's that far too many devices that need not be internet-connected are instead wide open to security flaws and connectivity-related flaws and outages. Pet feeders, so-called smart locks, healthcare devices: all examples of things that have been broken or broken into thanks to their being connected to the internet in wildly insecure manners.But what if I told you that a lack of basic security could result in a device you bought potentially forcing you to have someone come at your penis with an angle grinder? Well, if you bought a Cell Mate chastity lock, you should damn well be concerned.
Once again this week, the President decided to attack Section 230 because social media companies decided to highlight that he was posting dangerous misinformation (this time about the relative dangers of COVID-19, which he was downplaying). Yet, for reasons I do not understand, the President never seems to address copyright law, even though that law is what is actually forcing his and his campaign's content to be legally removed from social media.Over the last few months we've highlighted multiple times that Trump and his campaign have had posts removed from social media due to DMCA 512 takedown notices. And it happened again this week after Twitter removed a tweet from the Trump campaign on copyright grounds.The tweet in question made use of a video clip showing the San Francisco 49ers wide receiver Brandon Aiyuk scoring a touchdown from last Sunday's 49ers/Eagles game. The clip (somewhat ridiculously) superimposed Trump's head over Aiyuks, and put the well known graphic of the coronavirus on Eagle's defender Marcus Epps (whom Aiyuk leapt over in getting to the end zone). The message of the video (stupidly) is that Trump was somehow able to "avoid" the coronavirus (which, I should remind you, he did not). The video is stupid on multiple levels, including the the sickening and despicable implication that those who died from COVID-19 are somehow just not strong enough.However, I think there's a pretty strong argument that the video would be protected as fair use -- and that the takedown issued by the copyright holder (likely the NFL) was not a legitimate takedown. In fact, it's possible that the NFL issued the takedown for political reasons, as there's no argument that this somehow harmed the NFL directly. It's a short clip. It's used in a transformative (if stupid) way.In other words, this is an actual example of the law being used for censorship. Unlike Section 230. And yet, we don't see Trump or his supporters calling for that aspect of copyright law to be fixed. Indeed, copyright law is even worse, because if the Trump campaign keeps getting copyright strikes like this, the law says that Twitter must shut down his account for repeat infringements. Will Trump and his supporters finally see that the real problem for censorship is copyright?Instead they're asking to take away Section 230, which (at best) would create a situation more like copyright in which the legal incentive is much stronger towards pulling down such content. It remains incredible to me that in all of these discussions about social media and "censorship" everyone is focused on the law that protects speech online, rather than the law that forces websites to pull down legal content.
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I am perplexed. US district court judge Alfred Covello seems to have a very strange understanding of the 1st Amendment. As first noted in the Hartford Courant (who didn't link to the ruling) Covello has ruled that holding up a sign telling drivers that there are police ahead is not protected speech under the 1st Amendment. Because I'm not the Hartford Courant, you can read the whole ruling yourself.First off, let's be clear: Covello is wrong, and hopefully the ACLU (which is handling this case) will appeal. Plenty of other courts have ruled otherwise, including that merely flashing your headlights to oncoming cars is a form of protected speech, which seems way less expressive than holding up a printed sign saying that police are up ahead.To put an even finer point on this: by holding up a sign warning drivers that police are up ahead, the plaintiff in this case, Michael Friend, was actually encouraging drivers to obey the law. Which seems like a good thing. Except that the police didn't like him telling people to obey the law, because they make money from people not obeying the law. Either way, holding up a sign about what government employees are doing is quintessential protected free speech.Covello's reasoning is... bizarre.
AT&T has announced the company has stopped selling DSL lines completely as of October 1. It's not particularly surprising. AT&T has long history of refusing to seriously upgrade its network to fiber despite untold billions in state and federal subsidies and tax breaks. Many of these DSL connections were far from meeting the FCC definition of broadband (25 Mbps down, 4 Mbps up). For its part, AT&T says its focus moving forward will be on 5G wireless and fiber:
A week or so ago, the head of the US Patent and Trademark Office, Andrei Iancu, who has been an extreme patent maximalist over the years, insisted that there was simply no evidence that patents hold back COVID treatments. This is a debate we've been having over the past few months. We've seen some aggressive actions by patent holders, and the usual crew of patent system supporters claiming, without evidence that no one would create a vaccine without much longer patent terms.Iancu was questioned about how patents might hold back life-saving innovation and he brushed it off like this was a crazy question:
It's common knowledge now that the Chinese government heavily censors the access its population has to the internet and information writ large. It's been a decade since China first proffered that its Great Firewall of China was not actually censorship, but was merely a method for "safeguarding" its citizens. Safeguarding them, it seems, primarily from any international criticism of the Chinese regime itself, which sure seems like it's more about safeguarding the government, rather than the citizens. In the subsequent decade, whatever skin China had to weather criticism further sloughed away such that the government is now not only actively pressuring groups and companies within Chinese borders, but actively attempting to affect its censorship outside those borders as well.Whatever else we might want to say about Chinese censorship, it most certainly is not subtle. This was on full display when the government essentially pulled the plug on streams for the American Vice Presidential debate precisely during a segment discussing China's actions on COVID-19.
Five Years AgoThis week in 2015, while many sites were going to war with ad blockers, we unveiled the ability to turn off ads on Techdirt in your user settings. Various emerging info revealed sketchy behavior by the Secret Service, the State Department's success in planting anti-Wikileaks questions in the 60 Minutes interview with Julian Assange, and the surveillance failures of the Postal Service. Rightscorp was telling its copyright-trolling targets that they need to hand their computers over to police, PETA was defending its supposed right to represent the selfie-taking monkey, and — though it seems minor compared to what's going on right now — we talked about the increasing number of attacks on Section 230.Ten Years AgoThis week in 2010, Citibank was abusing the DMCA to try to hide its comments on Obama's bank reform policy, a city council was claiming copyright infringement over one councilor countersuing Righthaven. Meanwhile, Congress was pushing the COICA anti-infringement bill, and we took a look at all the technologies it would have blocked in the past, then all the current technology it was likely to interfere with, while Tim Berners-Lee stepped up as an opponent to the bill (and the RIAA, of course, stepped up as a hysterical supporter) — and by the end of the week, the bill was shelved.Fifteen Years AgoThis week in 2005, the ever-changing world of mobile phone etiquette was grappling with Bluetooth headsets while some restaurants were splitting into phone and no-phone sections. The pessimism about cameraphones was faltering as a new music video was shot entirely with a phone, and some early battles over transit map apps were popping up, while Motorola's CEO was whining about the iPod Nano and Seagate's CEO was making the case for hard drives over flash memory — while SanDisk made a much-anticipated announcement about flash storage that turned out to be... new copy protection technology. Professors were following in the shoes of doctors and freaking out about online reviews, Warner Music was foolishly overestimating its power in negotiations with Apple, and Sony was repeating its past ways by trying to block developers from hacking the PSP.
The last time we discussed Hugo Boss, the famed upscale clothier based out of Germany, it was when the company sent a C&D notice to Boss Brewing, which makes beer. While there can be no doubt that Boss Brewing would have won any dispute on the merits, given that the two entities are simply not playing in the same marketplace and there was zero chance of any kind of public confusion in commerce, Hugo Boss got its pint of blood by getting the brewery to change the name of two of its beers in a barely perceptible way.In other words, there was no real or potential harm done to Hugo Boss over the target of its dispute, but these sort of trademark actions are more reflex than logic.And here we go again, with Hugo Boss sending another notice to an artist who decided to trademark a phrase he uses to conclude his art lessons with for use on merch.
Summary:Talkspace is a well known app that connects licensed therapists with clients, usually by text. Like many other services online, it acts as a form of “marketplace” for therapists and those in the market for therapy. While there are ways to connect with those therapists by voice or video, the most common form of interaction is by text messages via the Talkspace app.A recent NY Times profile detailed many concerns about the platform, including claims that it generated fake reviews, lied about events like the 2016 election leading to an increase in usage, and that there were conflicts between growing usage and providing the best mental health care for customers. It also detailed how Talkspace and similar apps face significant content moderation challenges as well -- some unique to the type of content that the company manages.Considering that so much of Talkspace’s usage includes text based communications, there are questions concerning how Talkspace handles that information and how it protects that information.The article also reveals that the company would sometimes review therapy sessions and act on the information learned. While the company claims it only does this to make sure that therapists are doing a good job, the article suggests it is often used for marketing purposes as well.
We've detailed for a while now how both Republicans and Democrats are mad online about how the internet works -- though often for reasons that directly conflict with each other. We've also highlighted how Donald Trump and his administration are actively encouraging Republicans to focus all of their legislative and grandstanding firepower on attacking the internet.What I cannot understand is... why are the Democrats helping?In a Senate Commerce Committee hearing on Thursday, Democrats initially seemed to recognize that plans to subpoena various internet CEOs (AGAIN) were little more than a dog and pony show for Republicans working on their Trump-directed culture war against the internet. Senators Cantwell and Blumenthal both stated that they knew this was all a grandstanding ruse to pressure social media companies to leave up their misinformation and propaganda:
Orange County (CA) sheriff's deputies are the worst at law stuff. If the goal was to hire the stupidest, most plausibly-deniable candidates, the OCSD has hit the mark.Deputies for this department have managed to achieve the impossible: turn local prosecutors against them by continuously mishandling evidence. Evidence must be managed carefully since it's the thing prosecutors use to secure convictions. In the hands of deputies, evidence is just something that must be handled, however haphazardly, at whatever point they get around to it.Since they can't handle the job of correctly booking evidence, deputies have been faking reports, claiming evidence is booked in when it actually isn't to avoid getting reprimanded for taking too long to process seized property. One deputy, Bryce Simpson, never did the job correctly. In 74 cases audited, 56 had no evidence booked at all and the other 18 only had some of the evidence booked.Now, Deputy Bryce Simpson -- along with Deputy Joseph Atkinson Jr. -- are being given a pass by the special prosecutor presiding over the grand jury convened to decide whether these two slackers/liars should face criminal charges. According to the prosecutor, the deputies did nothing wrong because -- wait for it -- they didn't know falsifying official documents was wrong.
Okay, this post is going to be quick because, none of us should be wasting our time on this this week. We've now got FOUR new bills JUST THIS WEEK seeking to undermine Section 230 (and that's after one more last week). Obviously, it appears that Congressional Republicans have taken to heart the Trump Administration's demand to make attacking Section 230 and the internet companies a key focus between now and the election.Not counting all the other anti-230, anti-open internet bills from earlier this year (and last year), in just the last week we had Senator Lindsey Graham introduce the Online Content Policy Modernization Act, which was actually just a mashup of the bill he cosponsored a few weeks earlier with Senators Roger Wicker and Marsha Blackburn, combined with a dangerous copyright bill, the CASE Act.This week, we've already seen Senators Manchin and Cornyn release their "force companies to snitch on everyone" See Something Say Something Act, and then on Wednesday we had two more anti-230 bills, including Senator John Kennedy's "Don't Push My Buttons" Act and then in the House there was Reps. Sylvia Garcia and Ann Wagner pushing their version of the EARN IT Act, which would attack both Section 230 and encryption in one single blow.And the latest is that Rep. Jim Jordan, famous for dodging ongoing accusations of a rather horrific scandal and for constantly screaming nonsense about "anti-conservative bias," has thrown his hat in the ring with the "Protect Speech Act." Jordan has been pretty vocal in a few Congressional hearings (often having nothing to do with content moderation) about how "big tech" is "censoring conservatives." He goes back to the false claim that Google threatened to pull ads from The Federalist over the site's conservative views, ignoring of course that plenty of others sites -- including Techdirt -- have dealt with the same issue repeatedly.Jordan's new bill is really just a mashup of two other bills. One is the Graham/Wicker/Blackburn bill, along with the DOJ's own proposed anti-230 bill which came out last week as well, because apparently THE ONLY THING THAT CONGRESS NEEDS TO FOCUS ON THESE DAYS IS SECTION 230.The bill is both lame and unconstitutional, but I'm not going to go over why, because you can just go back to my older analysis of the Wicker/Graham bill and the DOJ bill and recognize that all of the problems with those bills are also in this one.Even in a normal year, this would be crazy. Having so many bills, all seeking to undermine the open internet, all coming out at once, would be just generally exhausting. But the fact that it's happening at this particular moment in time -- when the open internet is a key part of what is keeping people connected and able to work and socialize, in the midst of a pandemic that Congress is mostly ignoring -- is just positively preposterous.Congress is regularly seen as out of touch with Americans. This is why. They're playing politics and grandstanding to distract from all their failures, by trying to destroy one part of our daily lives that's actually working right now.
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Back in June, there was a well-documented hubbub about the NY Times Opinion editor's decision to publish a horrific op-ed by US Senator Tom Cotton defending turning the US military on US citizens who were protesting police brutality. Eventually, after widespread protests, including from journalists and staff within the NY Times, the paper admitted that it probably should not have published the piece, and the head of the opinion pages, James Bennet (who admitted he hadn't even read the piece before approving it) stepped down. Many supporters of President Trump and Senator Cotton argued that this was an example of "cancel culture" or an "attack on free speech." Or that it was a sign that some were "unwilling to listen to the other side." However, that was all nonsense. As I explained at the time, the "discretion" part of editorial discretion is important.The NY Times is not social media. It is not a place where just anybody gets to post their crazy uncle crackpot theories. They have an editorial staff and editorial standards for a reason. And part of that is that people expect them not to publish absolute garbage, such as the Cotton op-ed. It's not about "hearing all sides" or about "free speech." It's certainly not about "cancel culture." It's about recognizing that there are standards for what kinds of things you want to put your own stamp of approval on.It appears that the folks at the NY Times opinion pages (even without Bennet) have not learned that lesson. For reasons I will never understand, it has decided to give its editorial stamp of approval on the most disgusting op-ed I've seen. A Chinese government official, Regina Ip, was given the prestigious NY Times opinion pages to write a sickening defense of China's crackdown on freedom in Hong Kong. It's sickening. It's garbage. Just to give you a taste of what propagandist nonsense this was:
42 million Americans lack access to any broadband whatsoever. Another 83 million American consumers can only get access to broadband from one ISP, usually Comcast. Tens of millions more are stuck under a broadband duopoly, usually comprising of Comcast/Spectrum and some apathetic telco that refuses to upgrade or repair its aging DSL lines. Data makes it extremely clear the end result of this lack of competition is some of the highest prices for broadband in the developed world, and some of the worst customer service of any industry in America.Instead of tackling the corruption and regulatory capture that has allowed geographical monopolies to dominate the sector (harming consumers, competition, and technical innovation alike) America enjoys taking the opposite approach: namely lying about the scale of the problem, then routinely kneecapping and defunding the regulators tasked with trying to improve things. The end result: more of the same problems. New data from Fairshake estimates that 20 million American households have unresolved complaints against their ISPs in just the last year. The complaints are the usual fare: overbilling, slow service, crappy customer service, and misleading bogus fees. All told, the outfit estimates that 40 million U.S. homes had filed a complaint about their ISP last year alone:
We've pointed out just how ridiculous it is that Congress seems wholly focused on destroying the open internet by gutting the Section 230 protections that enable the open internet to exist in its present form. We're in the midst of a variety of pretty major issues, and yet Congress is introducing new anti-internet and anti-tech bills like it's last call before the bar shuts down.The reason for this is not that hard to grasp, really. As Politico reports, the Trump administration has decided that a culture war against the internet is the best election strategy right now:
Nikola Motor Company, to put it mildly, is having itself a bad month. First came the bombshell reports from a hedge fund that founder Trevor Milton lied in 2016 when he told the world that the company had a fully functional Nikola 1 electric semi truck. Worse than that, it was revealed that a promotional video in 2018 showing the truck rolling down a lonely highway, was actually showing a Nikola 1 rolling down a hill, since the truck couldn't actually move under its own power. Milton resigned after those reports, but the hits kept coming. Two women have come forward claiming that Milton inappropriately groped them when each was fifteen, with one of those women being his cousin. For the record, Milton has denied both allegations.But the fallout appears to be continuing. September 30th was supposed to be the date by which Nikola's notable contract with General Motors was to have closed. That deal appears to be in limbo, however, with regulatory filings indicating that both sides now have until December to sign the deal or terminate it.
Palantir is raking in millions. It's your surveillance provider, whether you -- the valued customer target -- had any say in the matter or not. Data comes in from all over and Palantir helps law enforcement make sense of it. Haystacks are useless. "Drilling down" -- to use official Palantir parlance -- is everything. Whether it's ICE or your local PD, Palantir is turning data into arrests… or at least stops/frisks and low-level harassment.Palantir gives law enforcement something roughly aligned with predictive policing. Predictive policing has given itself a bad name over the years by relying on dirty data supplied by cops who target minorities under the bigoted assumption that that's where the crime is. Palantir doesn't use that term but its analytics provide the same outcome: garbage results from garbage data.And there's oh so much data. Everything cops own gets fed into the system: millions of license plate photos from ALPRs, every piece of detritus generated by police reports, gang databases that think residents are gang members because they happen to live in gang territory, etc. And it adds in everything else: state license plate databases, regional crime center reports, the bullshit crafted by DHS-led "fusion centers." Everything goes in and Palantir helps craft what comes out.Documents obtained by BuzzFeed show how much crafting Palantir does and how much minute detail its software allows officers to fiddle with. It's not cheap, but agencies like the Los Angeles Police Department feel it's worth it.
We've talked a lot about how while the lack of security in Internet of Things devices was kind of funny at first, this kind of apathy towards privacy and security in everyday technology isn't a laughing matter. Whether it's cars being taken over from an IP address up to ten miles away, to the rise in massive new DDoS attacks fueled by your not-so-smart home appliances, security experts have spent the better part of the decade warning us the check for our apathy on this front is coming due. We've (and this includes government agencies) have spent just as long ignoring them.That's particularly true in the healthcare field, where hackable pacemakers and ransomware-infected hospital equipment is becoming the norm. Earlier this month, a woman died in Germany after a ransomware attack on her hospital delayed life-saving treatment. Though she most certainly probably isn't, she's being declared the first person to be killed by the steady parade of such attacks that have plagued the medical sector for much of this decade.Last weekend, Universal Health Services, with more than 400 locations in the United States, was hit by one of the biggest ransomware attacks in U.S. history. As a result, the hospital chain was forced to resort to using pens and paper to manage patients after their computer systems ground completely to a halt. Such attacks usually come on the weekend when the hospitals are short staffed, and the results usually aren't pretty:
Fifteen years ago, we applauded jazz musician Maria Schneider, who was an early adopter of crowdfunding her music directly from fans -- getting them to donate to help her pay to record a new album. We were excited to see musicians like her go direct to fans and show that you didn't need record labels and the old way of doing things, such as locking up the music, to become a successful musician. For reasons I don't fully understand, in the intervening years, Schneider has become one of the most vocal critics of "big tech" and "piracy," even as she had been an early embracer of the internet and unique business models.And then, in early July, she sued YouTube along with an anti-piracy organization called Pirate Monitor Ltd. The lawsuit had some unique (some might say "bizarre") legal theories in there, and was brought by infamous law firm Boies Schiller Flexner, whose top named partner, David Boies, you may recall from his work to try to spy on Harvey Weinstein's accusers. Or perhaps from the time he was actively involved with trying to suppress the speech of Theranos whistleblowers (where he was on the board). Or from the time he threatened us for reporting on leaked emails. Or from the fact that he's represented Oracle in trying to undermine the fundamental open nature of APIs for which he received a fantastic benchslap from Judge William Alsup who mocked Boies as being "one of the best lawyers in America" making a very silly legal argument.Boies' firm representing Schneider raised a lot of eyebrows around the industry. I heard from multiple people wondering how it was that Schneider could afford a firm like Boies'. And, of course, Boies' connections to Hollywood (Weinstein, Sony Pictures) suggested there might be more behind this lawsuit than just an upset jazz musician.But the lawsuit has now gone completely sideways in the most delightful way, as it appears that Schneider actually licensed her music to YouTube and (much, much, much worse), Pirate Monitor had actually set up fake accounts to upload its own works (reminiscent of that time that Viacom had to amend its lawsuit against YouTube after it was realized that Viacom had tried to sneakily post about 100 videos from its marketing department that it later sued over).First, though, an explanation of the lawsuit itself. Schneider complains that she was not allowed to use ContentID to block or monetize her music that was uploaded by others. Schneider's lawsuit argued that this created a two-tier system, in which less well known artists like herself were left on their own to fight piracy, while bigger artists could just turn on ContentID.
Readers of this site no doubt know that Oracle’s arguments in its lawsuit against Google, set to be argued in the Supreme Court on Wednesday, could spell disaster for the computer industry, by turning the act of reimplementing an API into copyright infringement. Back in January, I revealed in an Ars Technica piece that it could even spell disaster for Oracle itself, because Oracle’s cloud storage service reimplements Amazon’s S3 API. Oracle did not dispute my findings but shrugged them off, claiming Amazon had granted permission. I was skeptical, but at the time did not have hard evidence to prove a negative that Oracle had no license.I’ve now found the evidence for why Oracle should be worried. And more importantly, it shows why every tech company and startup should be worried about the Google v. Oracle case.What Oracle pointed me to in January was an open source Apache license for Amazon's Java SDK software. This was curious at the time because the SDK doesn’t implement S3 or any other cloud service; it uses the API by calling a handful of its functions. Code that calls an API is distinct from the API itself, so permission to copy API-calling code is not permission to implement an API (assuming, as Oracle does, that you need permission to implement an API). To repurpose a favorite analogy of Oracle’s lawyers, buying the rights to an authorized Harry Potter fanfic does not give one permission to reproduce Chamber of Secrets. Nevertheless, the idea that the SDK license gave Oracle the right to reimplement Amazon’s API continues to circulate among Oracle’s supporters.The problem is, Amazon itself doesn’t believe it has licensed its cloud API. In 2012, a company called Eucalyptus Systems announced that it had negotiated a license with Amazon to reimplement APIs including S3. Reports of the deal suggest that Amazon was not handing out licenses to just anyone: “Amazon chose to partner with Eucalyptus,” said a representative for the latter company.The Apache license for the Java SDK has been in place since at least 2010—two years before the Eucalyptus deal. If, as Oracle claims, everyone already had an Apache license to reimplement the S3 API, then there was no reason for Amazon to negotiate out an individual license with Eucalyptus, and there was no reason for Eucalyptus to promote its success in obtaining that license.In 2014, Eucalyptus was acquired by HP, which raised the question of whether the acquired firm's API license would transfer. In reporting on the acquisition, one journalist (who apparently now works for Oracle) quoted an anonymous cloud service vendor who described Amazon as “anything but generous on API licensing.” Again, that would make no sense if Amazon had Apache-licensed reimplementation of its APIs in 2010.Notably, Amazon's licensing behavior doesn't say much about whether Amazon actually agrees that API reimplementation is copyright infringement. Numerous people have noted that Amazon never has and probably never will bring a copyright case in court. But risk-averse businesses will want certainty—even the CEO of Eucalyptus did not believe that APIs were copyrightable, but still got a license as "belts and suspenders." And many major cloud service vendors have not reimplemented Amazon's APIs despite the obvious benefits of doing so. As one cloud service executive put it in 2014, the Oracle v. Google litigation has made it "more dangerous to use someone’s API design without consulting them first."Besides poking a massive hole in Oracle’s Apache-license theory, this “consult first” mentality shows how troublesome Oracle’s copyright theory is. Eucalyptus is not a traditional cloud service provider competing head-to-head with Amazon, but rather software for on-premises servers, allowing companies essentially to run a cloud computing system like AWS on their own computers. Amazon is not in the business of deploying on-site enterprise servers, so Eucalyptus would not have undercut Amazon’s profits—in fact, it probably would have increased Amazon’s profits by locking companies into Amazon’s API even before they switch from on-site servers to the cloud.The permission culture mentality, applied to the computer industry, could end up only locking in consumers, boosting big firms, and shutting out disruptive startups from competing in the market. In evaluating Oracle's theory of API copyright, the Supreme Court could either reject it and open the door to robust competition in the technology space, or approve copyright in APIs and entrench dominant services for years to come.
As we noted late on Friday, even with the weird grifty deal between TikTok and Oracle, Trump's ban on TikTok was scheduled to go into effect last night -- but a court was rushing to review a request by TikTok/Bytedance to put in place a temporary injunction to stop the rules from taking effect.In an emergency hearing on Sunday morning the judge appeared to be inclined to block the injunction, noting:
The cable industry was already struggling last year, when a record number of cable customers "cut the cord" and flocked to over the air or streaming alternatives. That was before a pandemic came to town. Now, with some sports on hiatus and folks desperate to cut costs, the trend has only accelerated, to the point where 6 million Americans are poised to cut the cord this year alone:
Five Years AgoThis week in 2015, a major scandal began when Volkswagen was accused of using software to cheat emissions tests. The White House was the FBI, CIA and much of the military were not doing basic email encryption — but in India things were going in the opposite direction. The monkey selfie saga began a new chapter with PETA filing a lawsuit on behalf of the monkey, and then an even bigger copyright bombshell hit when a judge ruled that Warner Chappell doesn't hold the copyright on happy birthday. Plus the world got a new famous villain with a sudden hike in drug prices introducing everyone to a man named Martin Shkreli.Ten Years AgoThis week in 2010, Intel was threatening to break out the DMCA anti-circumvention lawsuits against anyone using the recently-leaked HDCP master key, state AGs were turning their attention to Backpage (which was gearing up to fight back), and movie studios were freaking out about fan pages. The MPAA was apparently fishing for censorship tools in ACTA by talking about Wikileaks, while the Senate was offering them a gift with a new bill that would enable global censorship of "pirate sites" (with a special loophole allowing the DOJ to avoid due process. And we saw a variety of interesting developments in various lawsuits: one judge was entertaining the notion of implied licenses in a Righthaven lawsuit while another was shutting down US Copyright Group subpoenas, a UK judge was similarly not impressed by copyright pre-settlement campaigns, and a judge in Spain smartly ruled that Google is not liable for user uploads.Fifteen Years AgoThis week in 2005, there was a mess of internet jurisdiction cases in Canada with one ruling being overturned on appeal while another court muddied the waters with a ruling based on the overturned ruling. Hollywood was pouring money into an ill-fated attempt to build better DRM technology, which could be described as them calling their own bluff. Following the Supreme Court's decision in their case, Grokster was scrambling to sell to a "legit" company, as were several other file-sharing software providers. And one judge in a RIAA lawsuit thankfully recognized that parents aren't liable for their kids downloading music.
Even though Trump gave his supposed okay to the grifty TikTok/Oracle hosting deal, it appears that TikTok, ByteDance and the Trump administration are still busy fighting this out in court. The Trump rules to ban the app are still set to go into effect on Sunday. And while WeChat users were able to block the rules from going into effect, they still technically are scheduled to go into effect for TikTok this weekend.TikTok has asked for an injunction to stop the ban and the court is going to decide at the last minute whether to issue an injunction in the TikTok case as well. This is, in part, because the Oracle deal (which is not a sale and accomplishes none of the stated goals of the original executive order) still needs approval from the Chinese side -- and there are indications that China wants a better deal.After a hearing on Thursday, the judge ordered the government to either respond to the request for an injunction or to submit "a notice describing [the DOJ's] plan to delay the effective date of the subset of prohibited transactions directed against TikTok that are scheduled to go into effect" on Sunday at midnight. The DOJ, rather than say they were delaying the TikTok ban, instead, filed an opposition to the proposed injunction, though it did so under seal so we can't see what the DOJ said.The judge is expected to rule by Sunday, and it's possible (likely) that he'll drag the lawyers from both sides into (virtual) court this weekend. The whole thing remains insane. The President should never have the right to just ban a random social media app like this. Hopefully, the court agrees to an injunction while everything else gets worked out.
Summary:While some Twitter users welcome the chance to view and interact with "sensitive" content, most do not. Twitter utilizes algorithms to detect content average users would like to avoid seeing, especially if they've opted in to Twitter's content filtering via their user preferences.Unfortunately, software can't always tell what's offensive and what just looks offensive to the programmable eye that constantly scans uploads for anything that should be hidden from public view unless the viewer has expressed a preference to see it.A long-running and well-respected Twitter account that focused on the weirder aspects of Nintendo's history found itself caught in Twitter's filters. The tweeted image featured an actor putting on his Princess Peach costume. It focused on the massive Princess Peach head, which apparently contained enough flesh color and "sensitive" shapes to get it -- and the Twitter account -- flagged as "sensitive."The user behind the account tested Twitter to see if it was its algorithm or something else setting off the "sensitive" filter. Dummy accounts tweeting the image were flagged almost immediately, indicating it was the image -- rather than other content contained in the user's original account -- that had triggered the automatic moderation.Unfortunately, the account was likely followed by several users who never expected it to suddenly shift to "sensitive" content. Thanks to the algorithm, the entire account was flagged as "sensitive," possibly resulting in the account losing followers.Twitter ultimately removed the block, but the user was never directly contacted by Twitter about the alleged violation.Decisions to be made by Twitter:
The World Intellectual Property Organization, WIPO, who has a long history of poor decision making despite its crucial role in helping to define standards regarding copyright and patent rules around the globe, is now letting China block Wikimedia from having "observer status." As Tersa Nobre from Communia notes, tons of civil society/public interest orgs have been granted observer status at WIPO, including EFF, Creative Commons and others. In fact, the only other time anyone can remember an organization being blocked is when Pirate Parties International was blocked. Indeed, when we wrote about that, we noted that it coincided with WIPO granting observer status to an organization that claimed its goal was to "free individuals and organizations from space lizards' control." Really.In other words, it's not that common for WIPO to block anyone from observer status.So why was Wikimedia blocked? The answer is that China doesn't like the fact that Wikimedia Taiwan exists.
I've written about famed classic rock band The Doobie Brothers before. As a person who is very much a fan of the band's music, I was rather disappointed when they decided to go after a cover band, The Doobie Decimal System, over trademark infringement. Their argument was that the names would confuse the public as it is too similar to their own band's name and if you aren't already laughing out loud by now you most certainly should be. The legal team for the band went with some fairly standard messaging as well, rather than taking a softer approach.Unlike, say, how The Doobie Brothers have decided to handle a copyright C&D with comedian Bill Murray.
Evel Knievel, it seems, is as litigious in death as he was in life. The famed motorcycle stuntman found his way into our pages previously, having mistaken common modern parlance for defamation and for once suing AOL of all companies because its search engine could be used to get to a Kanye West video. And, while Knievel passed away in 2007, the lawsuits keep coming.A company called K&K Promotions has sued Disney over the depiction of a character in Toy Story 4.
Summary:President Trump appeared on Fox News’ “Fox & Friends” and made some comments that were considered by many experts to be misinformation regarding the COVID-19 pandemic. One quote that particularly stood out was: "If you look at children, children are almost -- and I would almost say definitely -- but almost immune from this disease. They don't have a problem. They just don't have a problem." This is false. While it has been shown that children are less likely to get seriously ill or die from the disease, that is very different from being “immune.”In response to this both Twitter and Facebook decided to remove clips of the video including those posted by the Trump Campaign. Given both platforms’ aggressive policies regarding COVID-19 disinformation (and the criticism that both have received for being too slow to act) this was not all that surprising. For additional context, just a week and half earlier there was tremendous controversy over a decision to remove a video of some doctors giving speeches in front of the Supreme Court that also presented misleading information regarding COVID-19. While the major platforms all blocked the video, they received criticism from both sides for it. Some argued the video should not have been taken down, while others argued it took the platforms too long to take it down.Thus it was not surprising that Facebook and Twitter reacted quickly to this video, even though it was statements made by the President of the United States. However, more controversy arose because in taking down those video clips, Twitter also ended up removing reporters, such as Aaron Rupar, who were fact checking the claims, and activists, like Bobby Lewis, who were highlighting the absurdity of the clip.Decisions to be made by Twitter:
The biggest challenge we face in advocating for Section 230 is how misunderstood it is. Instead of getting to argue about its merits, we usually have to spend our time disabusing people of their mistaken impressions about what the statute does and how. If people don't get that part right then we'll never be able to have a meaningful conversation about the appropriate role it should have in tech policy.It's particularly a problem when it's a federal agency getting these things wrong. In our last comment to the FCC we therefore took issue with some of the worst falsehoods the NTIA had asserted in its petition demanding the FCC somehow seize imaginary authority it doesn't actually have to change Section 230. But in reading a number of public comments in support of its petition, it became clear that there was more to say to address these misapprehensions about the law.
I attended an Internet Archive event (virtually, of course) yesterday, and afterwards one of the attendees alerted me to yet another nefarious attack on Section 230 based on out-and-out lies. Apparently the League of California Cities has been going around getting various California cities to vote on a completely misleading and bogus motion pushing for Congress to reform Section 230 of the Communications Decency Act. It was apparently put up first by the city of Cerritos, which is part of Los Angeles County (almost surprised it wasn't started in Hollywood, but it wouldn't surprise me to find out that the impetus behind it was Hollywood people...). Basically, cities are voting on whether or not the League of California Cities should officially call on Congress to amend Section 230 in drastic ways... all because of some violence at recent protests about police brutality. The process, apparently, is that one city (in this case Cerritos) makes the proposal, and gets a bunch of other cities to first sign on, and then various other cities take a vote as to whether it becomes official League policy (after which they'd send a letter to Congress, which Congress would probably ignore).And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.
The government has fucked up and it thinks citizens are obligated to help it unfuck itself. We're not. Too bad.Recently, government accountability nonprofit American Oversight obtained nearly 10,000 pages of memos and emails from the United States Postal Service. The documents dealt with the USPS's response to the COVID-19 pandemic. Unlike the USPS's effusive response to this FOIA request, the agency's response to complaints from employees about the danger they were facing was far more tepid.These documents were shared with the Washington Post, which highlighted the Postal Service's scrapped plan to send every American five masks, as well as the internal turmoil that accompanied the spread of the coronavirus.Apparently, the USPS had second thoughts about its FOIA response following this unflattering nationwide media coverage. It sent a letter to American Oversight asking it to take down every single one of the 10,000 pages it had given the organization.
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As was hinted at in our previous post on China's response to Trump forcing TikTok to... not actually be sold to Oracle, but to force TikTok into signing a hosting deal to store data in the US, it appears that China is going to do some posturing of its own. The Chinese government has said that it will block the deal which it calls "extortion."And, to be fair, the Chinese government has a point. It was extortionate. Trump told ByteDance it had to sell or TikTok would be blocked in the US. And while it didn't actually sell TikTok, it was forced at gunpoint into a deal that it appears it would not have made otherwise. And, of course, China holds all the leverage here because Trump is a ridiculously bad dealmaker. His "plan" flopped in that he didn't force a sale, and then to save face (and to help out one of his big donors) he gave the thumbs up to the Oracle non-purchase/hosting contract. It was already a weak move that everyone other than the dumbest of Trump's fans knows is a weak move by a President who swings the executive power bat like a toddler who just learned how to smash things.So, of course China is going to move for a better deal. In the Chinese state-controlled English language outlet China Daily, the the Chinese government goes in for the kill.
AT&T and Verizon didn't have much to say as T-Mobile was lobbying for Sprint merger approval. In large part because most of the downsides of the merger -- such as lower overall pay for sector employees -- or higher overall prices due to a consolidated lack of competition -- aided the two wireless giants.Now that the deal's done, AT&T (no stranger to mindless consolidation and monopolization itself) is apparently concerned that the deal consolidated too much spectrum in the hands of one company. Namely, T-Mobile. From a FCC filing this week spotted by Ars Technica:
It never, ever ends. President Trump is continuing his war on Section 230 and the right for the open internet to exist. The latest is that he's meeting with various state Attorneys General to encourage them to bring investigations against internet websites over "anti-conservative bias" despite the fact that no one has shown any actual evidence of anti-conservative bias beyond assholes, trolls, and literal Nazis upset that they got banned.
This isn't so much in vogue as it was in the past, but it still remains true that one's reputation is a scarce resource that can be frittered away easily. And, on these pages at least, it is often equal parts perplexing and funny to watch some folks in the tech space torpedo their own reputations for various reasons. The more shrewd don't always seem to care about this sort of thing, which is how you get the MPAA pirating clips from Google to make its videos, or a law school taking a critic to court only to have the court declare said critic's critique was totally true. Good times.Which brings us to Trevor Milton, the founder of Nikola Motor Company. Nikola is playing in the electric truck vehicle space. In 2016, Milton announced in an official video that the Nikola One Semi was "fully functional." In fact, one of Milton's chief public concerns at the time was ensuring that nobody could come by and drive away with one of the trucks. The companion video for the Nikola One was posted to YouTube in January of 2018. This video shows the Nikola One chugging down a lonely one-lane road.Despite all of the fanfare, it's worth noting that the Nikola One never made it into production. Why? Well...
Senator Lindsey Graham is in a tight re-election campaign that he might just lose. And he's doing what politicians desperate for campaign cash tend to do: releasing a lot of absolutely batshit crazy bills that will pressure big donors to donate to him to either support the bill, or to get him not to move forward on it. It's corrupt as hell, but is standard practice. And the best of these kinds of bills are ones that pit two large industries with lots of lobbyists and cash to throw around against one another. For many years the favorite such bill for this was a bill about performance rights royalties for radio play. This would pit radio broadcasters against the music industry, and the cash would flow. Every two years, as the election was coming, such a bill would be released that was unlikely to go anywhere, but the cash would flow in.More recently, the goal has been to target the big internet companies. And, boy, Linsdey Graham's campaign must be struggling, because he's decided to take two horrible, awful bills that would harm the internet and mash them together into a single bill that is set for markup by the Senate Judiciary Committee next week. This new bill, entitled the "Online Content Policy Modernization Act" simply combines the terrible and unconstitutional CASE Act (to create a quasi-judicial court in the Copyright Office to review copyright claims) with some of the recently released (and also horrible and unconstitutional) "Online Freedom and Viewpoint Diversity Act" which would rewrite Section 230 to remove the ability to moderate "otherwise objectionable" content without liability, and would, instead, insert a limited list of what kinds of content could be moderated without liability.Both of these are bad ideas, but both of them are specific threats to the open internet -- and the kinds of things that Senator Graham knows he can fundraise on. Both bills are garbage, and Senator Graham likely knows this -- but he's not in the Senate to actually legislate. He's there to stay in power, and there's a real chance he might lose this November. So I guess it's time to break out the really stupid bills.
The third book in Cory Doctorow's Little Brother series is coming soon — but as usual, Cory is doing something different as part of the release. Fans and Techdirt readers know he's an outspoken opponent of DRM who makes sure all his work is available DRM-free, but that isn't so easy when it comes to audiobooks, where Audible's market dominance forces DRM onto everything. So while publishers eagerly picked up Attack Surface for printing, he retained the audio rights and is running his first-ever Kickstarter to release a nice non-DRM version. This week, Cory joins Mike on the podcast to discuss why he's doing it, what he's giving up, and the industry changes he hopes to inspire.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview's scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company's intended uses and its success in the law enforcement marketplace.Clearview's response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn't being sued over the content itself (which wasn't defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.The Vermont court has finally weighed in [PDF] on Clearview's arguments. And it doesn't like most of them. (h/t Eric Goldman)Here's the court's take on the Section 230 argument:
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While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.
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