Judge Lets False Advertising Case Against Apple Over 'Buying' Music You Didn't Buy Move Forward

from the you-don't-own-what-you-bought dept

A decade ago we wrote a post about what we called Schrodinger's Download, which was that the big companies in the music space would refer to digital downloads as a sale or a license in varying ways depending on which benefited them the most. This was most evident in lawsuits between artists and labels, especially with contracts signed in the pre-digital era, where the royalties for "licensing" were much higher than the royalties for "sales." In those cases, the labels tried to claim that MP3 downloads were "sales" in order to pay lower licensing fees -- but, on the flip side, when there were cases about reselling those files, suddenly the labels would insist that wasn't allowed, since it wasn't actually a sale, but a license.

And, of course, over the years, we've seen this play out in many ways -- especially with our never ending series of posts on how you don't own what you've bought, as more and more companies try to use technology and DRM to retain control over things you've "purchased." Last year, we wrote about someone suing Amazon for claiming that she had "purchased" movie downloads, but the fine print showing that she was merely "renting" them. The argument was that this was false advertising. That case is still going, but what we hadn't realized was that someone else had filed a very similar case against Apple, arguing the same thing. And, yes, it's the same lawyers on both cases...

And even though the Apple case was filed three months after the Amazon case, it's actually seen more progress. This week the judge denied Apple's motion to dismiss (first spotted on Courthouse News), saying that there's enough of a case to move forward. Apple tried to argue that the harm here is merely speculative. It hasn't actually removed the plaintiff's downloads. But the court says that Apple's wrong about that:

Apple argues that Plaintiff’s alleged injury — which it describes as the possibility that the purchased content may one day disappear — is not concrete but rather speculative.... This, however, as Plaintiff points out, misconstrues the injury. Plaintiff responds that his injury is not that he may one day lose access to his content.... Rather the injury Plaintiff asserts, is that he spent money purchasing the content that he wouldn’t have otherwise as a result of Apple’s misrepresentation.... This occurred at the time of purchase.

Another point raised by Apple is that "no reasonable consumer would believe" that when you buy a digital file, it means that it will always be available for you on iTunes. But the Court says, uh, yeah, actually, plenty of reasonable consumers probably would believe that, because that's what "buy" means:

Apple contends that “[n]o reasonable consumer would believe” that purchased content would remain on the iTunes platform indefinitely. Id. at 12. But in common usage, the term “buy” means to acquire possession over something. Buy Definition, merriam-webster.com, https://www.merriamwebster.com/dictionary/buy (13 April 2021). It seems plausible, at least at the motion to dismiss stage, that reasonable consumers would expect their access couldn’t be revoked.

The court did dismiss a few extraneous claims, but the key ones can now move forward -- and there's a decent chance that this will eventually become a class action lawsuit.

While some might argue that it doesn't really matter that much whether or not you're "buying" or "renting" this content, it really does matter in the legal sense, and big companies have used the distinction to their own advantage (often swapping out the words when convenient, as noted up top). Forcing the companies to actually be upfront about this stuff would be much better -- and might even get them to provide some more accurate descriptions of what they're really providing.

Filed Under: buying, class action, digital goods, licensing, ownership, purchase, renting, truth in advertising
Companies: amazon, apple

Josh Hawley: We Must Break Up Companies Whose Politics I Disagree With For Discriminating Against People Whose Politics I Agree With

from the that's-not-how-it-works dept

Josh Hawley is gonna Josh Hawley. The Senator from Missouri, who still has not apologized or admitted to supporting the invasion of the Capitol in an attempt to overturn the election, has a long history of nonsense bills that are performative for his riled up base. His latest is more of the same. On Monday he introduced the "Bust Up Big Tech Act" and even if you're a supporter of antitrust and think that big tech should be "busted up," it should give you pause before supporting Hawley's nonsense. The bill itself is... weird. It seems to pick seemingly random activities and insist that no company can do two of them. Basically, he looked at different businesses that Amazon and Google are in, and the bill says "you're no longer allowed to do those different things." As some have pointed out, under this bill it appears that Walmart can no longer sell under a house brand, because the bill bars any company that qualifies from selling, advertising or otherwise promoting your own products.

But the thing that amazes me is just how upfront and blatant Hawley is that this bill is not about any principled stance regarding antitrust. It is entirely about "owning the libs," which is the performance Hawley thinks he needs to perform for his base. The fact that Hawley knows he needs to do stupid shit for his voters shows that he truly believes his supporters are a bunch of ignorant fools, and he's catering to that audience. He did it last week with his bill to attack MLB for its speech, and now he's doing it this week with this bill to go after "big tech." You can see it from the quote in his press release, in which he flat out admits he's doing it to attack "woke" companies.

“Woke Big Tech companies like Google and Amazon have been coddled by Washington politicians for years. This treatment has allowed them to amass colossal amounts of power that they use to censor political opinions they don’t agree with and shut out competitors who offer consumers an alternative to the status quo. It’s past time to bust up Big Tech companies, restore competition, and give the power back to the American consumers.”

Hawley has really embraced the phrase "woke capitalists" in the last few months as he realized that everything he used to pretend to stand for (he used to argue he was about "keeping government out of business") resulted in a bunch of companies recognizing that Josh Hawley is a power-hungry fascist in waiting. So now he has to attack the very companies he used to say he wanted the government's hands off of, so he's invented the laughable idea that these companies are "woke" (by which he means they're skeptical of his style of fascism, and therefore they need to be taken down).

But, really, that quote is quite incredible on multiple levels. He starts out by attacking the companies for their supposed (though, not actual) political beliefs ("woke"), and then says he has to do this to stop them from "censoring political opinions they don't agree with." So... that one quote alone shows Josh Hawley's true principles: punish those whose politics I dislike, and protect those whose politics I like.

Even if you dislike big tech and think the companies should be smashed to bits, that's no reason to support Josh Hawley's cynical brand of authoritarian retribution.

Filed Under: antitrust, big tech, josh hawley, woke capitalists
Companies: amazon, google

Senator Elizabeth Warren Goes Over The Line; Threatens To Punish Amazon For 'Snotty Tweets'

from the that's-not-how-any-of-this-works dept

It's no secret that Elizabeth Warren thinks the big internet companies should be broken up. She's made that argument emphatically over the years. I'm not exactly clear what breaking them up actually accomplishes beyond punishing the companies, but as a Senator, she can certainly make the arguments for why it makes sense, or pass laws that impact how antitrust works.

However, what she cannot and should not do, is threaten to punish a company for its speech. And, yet, that's exactly what she did. Amazon tweeted at Warren after Warren said that Amazon exploits loopholes and tax havens, and that she was introducing a bill to make the company pay more taxes. In response, Amazon said in a short tweet thread:

You make the tax laws @SenWarren; we just follow them. If you don’t like the laws you’ve created, by all means, change them. Here are the facts: Amazon has paid billions of dollars in corporate taxes over the past few years alone. In 2020, we had another $1.7B in federal tax expense and that’s on top of the $18 billion we generated in sales taxes for states and localities in the U.S. Congress designed tax laws to encourage investment in the economy. So what have we done about that? $350B in investments since 2010 & 400K new US jobs last year alone. And while you’re working on changing the tax code, can we please raise the federal minimum wage to $15?

It's maybe not the most politically savvy way of doing that, but that's how Amazon chose to go about it. Warren responded thusly:

That is her saying:

I didn’t write the loopholes you exploit, @amazon – your armies of lawyers and lobbyists did. But you bet I’ll fight to make you pay your fair share. And fight your union-busting. And fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.

Neither party comes out of this looking very good, frankly. It seems kinda silly for Amazon to get snarky about this. And Warren has every right to look into changing tax laws -- or to complain about lawyers/lobbyists seeking loopholes. That's her job.

But, even if you hate Amazon and love Elizabeth Warren her last sentence should greatly trouble you. It doesn't matter if Warren has lots of other good policy ideas regarding Amazon, or well documented reasons for breaking up the company. It doesn't matter that she was being snarky on Twitter in response to probably uncalled-for tweets from Amazon. At no point should a government official say that anyone should be punished for their speech. And that's what Warren has said by saying that she would "fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets."

Everyone should have the power to heckle Senators with snotty tweets. That's a core, fundamental principle of the 1st Amendment. Warren wipes away whatever goodwill she might have, and undermines her policy proposals and ideas when she attacks a private company for its speech. It no longer seems like a principled position. It no longer seems like a position based on what's best for the country. It now allows people to say she got upset over nasty tweets.

And, yes, that's even given everything else. Yes, she has plenty of other reasons to want to break up Amazon. Yes, this isn't a change in her position. Yes, she's being snarky on Twitter, and that's what Twitter is for. But none of that matters, just like it didn't matter when former President Donald Trump threatened companies for their speech, and his supporters said "aw, he's just joking" when people called him on that.

At no point is it appropriate for government officials to threaten to retaliate against speech, even jokingly.

It is an inherent threat and is blatant censorial intimidation. Amazon may not care, but lots of other companies are also watching this, and noting that when challenged, Warren threatens to attack companies for their speech and harm them to the point that they no longer feel comfortable speaking. That's a real problem. And courts have recognized this over the years. Even if you think what someone is saying is bad, government officials aren't supposed to intimidate them. That was the lesson in the Backpage v. Dart case a few years back:

With very limited exceptions, none applicable to this case, censorship—“an effort by administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive,” Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001), as distinct from punishing such dissemination (if it falls into one of the categories of punishable speech, such as defamation or threats) after it has occurred—is prohibited by the First Amendment as it has been understood by the courts. “Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.” Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). The Supreme Court, in enjoining a state commission from sending threatening letters to distributors of books that the commission deemed obscene, found that the “notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications.” Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 68. The court held the state’s “system of informal censorship” unconstitutional, pointing out that “though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.” Id. at 67. The distributor of the plaintiffs’ books, corresponding to the credit card companies in this case, received first from the Commission a written request for ”cooperation” and then “follow up” visits from police, corresponding to the follow-up calls promised in Sheriff Dart’s letter. Id. at 63, 68. The distributor bowed to the Commission’s demand “rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply.”

In other words, even if "informal," the mere threat of speech suppression is intimidation and when done by a government official is a violation of the 1st Amendment. Elizabeth Warren should apologize.

Incredibly, when I tweeted this argument out this morning, many people got very angry with me. They mostly seemed to come from people who like Warren and dislike Amazon. And that's fine. You can like Warren and dislike Amazon. You can even agree with Warren's policy proposals regarding antitrust. But no one should accept it as okay when a Senator directly says that she wants to break up a company to the point that they can no longer tweet snarky tweets at a Senator. That is intimidation and it is an unconstitutional attack on speech.

Warren has great power at her disposal, and she is going to try to use that on Amazon. If so, she should defend that on the merits, not even hint (or even joke) about the idea that it may have been due to snarky, but protected, speech.

And that's true, even with the additional context of the big angry fight over unionization in an Amazon warehouse, or other mishaps with Amazon's snarky ill-targeted tweets -- such as telling Rep. Mark Pocan that its employees have not had to pee in bottles, a charge that Amazon's social media person mocked:

For many, many, many reasons this was a poorly thought out tweet, not the least of which was that it presented a wide open opportunity for the media to point out not only that Amazon workers have, in fact, at times needed to pee in bottles, but that there are Amazon memos detailing this.

Amazon may be deserving of mockery or contempt for its tweets. But the 1st Amendment is pretty clear that it should not face legal consequences from them -- and Warren should never have done so, even if she was just being snarky back. If she doesn't like being heckled, she has every right to leave her government job. Other than that, it is the public's right -- and often civic duty -- to heckle government officials even in snarky ways.

Filed Under: 1st amendment, antitrust, elizabeth warren, intimidation, snotty tweets
Companies: amazon

NFL's Thursday Night Football Goes Exclusive To Amazon Prime Video

from the b-as-in-billion dept

While denialism over cord-cutting is still somewhat a thing, a vastly larger segment of the public can finally see the writing on the wall. While the cable industry's first brave tactic in dealing with the cord-cutting issue was to boldly pretend as though it didn't exist, industry executives more recently realize that there is a bloodbath coming its way. There are few roadblocks that remain for a full on tsunami of cord-cutters and one of the most significant of those is still live sports broadcasting. This, of course, is something I've been screaming about on this site for years: the moment that people don't need to rely on cable television to follow their favorite sports teams live, cable will lose an insane number of subscribers.

Over the past few years, the major American sports leagues have certainly inched in that direction. Notable for this post, 2017 saw the NFL ink a new streaming deal for mobile streaming with Verizon. The NFL had a long partnership with Verizon for mobile streaming already, but the notable aspect of the new deal was that NFL game streaming was suddenly not exclusive. Other streaming services could get in the game. And, while you can't draw a direct line to it, the tangential story of how the NFL just inked an exclusive deal with Amazon Prime for the broadcast rights for Thursday Night Football certainly shows you where this is all heading.

The deal runs from 2023 to 2033 and, according to a report from CNBC, will see Amazon pay $1 billion per year for the TNF package. Thursday Night Football is the NFL's newest and cheapest TV package, but the deal lets Amazon creep closer to parity with the NFL's other licensees, mainstream TV networks like Fox Sports, ABC/ESPN (Disney), CBS (Viacom), and NBC (Comcast). CNBC's report has the other four channels paying upward of $2 billion per year each, and unlike Amazon, the TV networks get to take turns airing the Super Bowl.

The exclusivity for Amazon seems like a mistake for the NFL, which really should want its product viewed in as many places as possible. On the other hand: 1 billion dollars a year. The Thursday lineups are typically one or two games each Thursday, far less than the deals for Sunday games. It's an incredible amount of money to pay just so Amazon can exclusively show the NFL's worst games of the week. But it also shows not only that Amazon understands the power and draw of live sports like this, but also that the NFL understands the power and draw of streaming services.

Building on that point, the NFL is also loosening up what its other broadcast partners can do in terms of streaming games.

The NFL's new deal contains streaming provisions for the other providers, too. Each network can now simulcast their games on their streaming service, and some deals scored one or two streaming-exclusive games. Disney's ABC and ESPN games are also allowed on ESPN+, and ESPN+ will get one exclusive game per season, the London "International Series" game. NBC games can also appear on the streaming service Peacock, and Peacock is getting "an exclusive feed of a select number of NFL games." CBS can stream games on Paramount+. Fox Sports, which wasn't part of Disney's acquisition of Fox, apparently has a streaming service called "Tubi," which can now simulcast the Fox games.

All of which is to say that the NFL is widely opening up its games to be streamed in more and more places. This shouldn't come as the world's biggest surprise, frankly. The NFL is a money-making operation and it does its marketing and promotional work better than most leagues. The very smart people handling broadcast contracts for the league certainly can see where the future in broadcasting games is and it sure looks like they are only going further and further into streaming.

If pro sports leagues follow suit, the end of cable television as we know it is nigh.

Filed Under: amazon prime video, cord cutting, football, live sports, sports, streaming, thursday night football
Companies: amazon, nfl

New Year, Same You: Twitch Releases Tools To Help Creators Avoid Copyright Strikes, Can't Properly Police Abuse

from the getting-twitchy dept

Readers here will remember that the last quarter of 2020 was a very, very bad time for streaming platform Twitch. It all started when the RIAA came calling on the Amazon-owned platform, issuing a slew of DMCA takedown notices over all sorts of music included in the recorded streams of creators. Instead of simply taking the content down and issuing a notice to creators, Twitch simply perma-deleted the content in question, with no recourse for a counternotice given to creators as an option. After an explosive backlash, Twitch apologized, but still didn't offer any clarity or tools for creators to understand what might be infringing content and what was being targeted. Instead, during its remote convention, Twitch only promised more information and tools in the coming months.

Five months later, Twitch has finally informed its creators of the progress its made on that front: tools on the site to help creators remove material flagged as infringement and some more clarity on what is infringing.

Twitch announced in an email to streamers that the site has added new tools today to help creators see where they stand with takedown requests and copyright strikes. Twitch also added tools to let streamers mass delete their recorded streams. It’s a smart move because it gives streamers better tools to play on the right side of copyright law. (If you don’t, and you rack up enough copyright strikes, you get permabanned.)

Now, in the event that a streamer gets hit with a DMCA takedown request, it’ll show up in their on-site inbox; Twitch’s video producer will also show the number of copyright strikes a channel has received. In addition, streamers can now unpublish or delete all their VODs at once (or in batches of 20 at a time).

It's not that Twitch's new tool is a bad thing. More clarity for creators and an increased ability to granularly address DMCA notices for their content is a decidedly good thing. But it all feels both extremely late in coming because, obviously, Twitch should have known that DMCA notices on creators from the copyright industries would be a thing.

But if you're looking for encouraging signs that Twitch is getting its shit together in policing its own site, you certainly won't find it in the story of how one creator got one of his accounts banned for an account name that was "harassment via username." The user he's accused of harassing would appear to be... himself.

It might be an understatement to say that popular Minecraft YouTuber and streamer George “GeorgeNotFound’’ Davidson had a weird weekend. Within two days, he got banned from Twitch, possibly un-banned, definitely banned again, and unbanned (again?). Why? “Harassment via username,” according to Twitch. Problem is, the only person he could have possibly been harassing was himself.

The new, different ban email from Twitch accused him of “harassment via username” and once again informed him that the suspension was indefinite—aka, a ban. This one also further elaborated on what exactly he might have done, without telling him exactly what he definitely did. Examples included “having a username that explicitly insults another user,” “having a username that threatens negative action towards another user,” and “having a username that promotes self-harm in conjunction with malicious chat activity, such as telling another user to kill themselves.”

Obviously, "ThisIsNotGeorgeNotFound" does not do any of those things. And, yet, his account was banned for a second time. He has since had the account unbanned. Which, fine, but what the hell is going on at Twitch that it never seems to get any of this right? And if the platform can't be trusted to do something as relatively simple as properly policing creators' handles, why would anyone have any confidence that it's going to navigate waters as treacherous as the Copyright Seas any better?

Look, Twitch grew up fast. And nobody expects any growing platform to be perfect from the get go. But with the backing of a parent company like Amazon, it certainly should be able to do better by its creators than this.

Filed Under: copyright, dmca, streaming
Companies: amazon, twitch

Amazon's Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important

from the libraries-need-books dept

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won't allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing -- especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won't let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”

I've seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there's a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn't a problem. If a library wants to lend out a book, it doesn't need the publisher's permission. It can just buy a copy and start lending it out. Fowler's correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there's the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed "permission" to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.

However, a few years back, some very smart librarians and copyright professors and experts got together and created a system called Controlled Digital Lending (CDL), which aimed to (1) rectify this massive gap in public access to knowledge while (2) remaining on the correct side of copyright law. In its most basic form, CDL, involves libraries buying physical copies of books (as they did in the past), scanning those books (which has already been ruled to be fair use for libraries) and then lending out that digital copy only if they had the matching physical copy on the shelf. As the libraries and copyright experts correctly note, it's difficult to argue that this is any different than lending out the copy of the book that they bought.

But, of course, publishers have always hated libraries' ability to lend out books in the first place -- and have been itching to use the power of copyright to block that. Already, they charge libraries insanely high prices for ebooks to lend, and put ridiculous limits on how those books can be lent.

So, no surprise, last year, in the middle of a once-in-a-century pandemic, the publishers sued the Internet Archive, arguing that its Open Library project, which runs based on the CDL principles, violated copyright law. And, incredibly, a ton of people have cheered on this nonsense lawsuit -- even those who hate Amazon.

Yet, if you really want to stop Amazon from being able to block libraries from lending out ebooks, there's a simple answer: fix copyright law. Make it clear that Controlled Digital Lending is legal. Or, go even further and say that the First Sale Doctrine also applies to digital goods, as it absolutely should.

Filed Under: controlled digital lending, copyright, digital first sale, ebooks, first sale, knowledge, libraries
Companies: amazon, internet archive

Parler Drops Its Loser Of A Lawsuit Against Amazon In Federal Court, Files Equally Dumb New Lawsuit In State Court

from the that-ain't-gonna-work-champ dept

As you may recall, Parler had filed a ridiculously weak antitrust lawsuit against Amazon the day after it had its AWS account suspended. A judge easily rejected Parler's request for an injunction, and made it pretty clear Parler's chances of succeeding were slim to none. Parler, which has since found a new host, had indicated it would file an amended complaint, but instead it chose to drop that lawsuit in federal court and file an equally laughable lawsuit in state court in Washington (though with some additional lawyers).

Rather than claiming antitrust (which was never going to work) the new complaint claims breach of contract, defamation and deceptive and unfair practices. The complaint makes a big deal over the fact that in December Twitter and Amazon signed an agreement to use AWS for hosting some Twitter content, and hints repeatedly that Amazon's move a month later was to help Twitter stomp out a competitor. But this is all just random conspiracy theory nonsense, and not at all how any of this actually works.

The defamation claim is particularly silly.

On January 9, 2021, AWS sent an email to Parler declaring that AWS would indefinitely suspend Parler’s service, claiming that Parler was unable or unwilling “to remove content that encourages or incites violence against others.” AWS or one of its employees publicly leaked that email in bad faith to BuzzFeed at or around the same time AWS sent the email to Parler.

AWS’s email was false and AWS knew it was false. Parler was willing and able to remove such content and AWS knew that, because there was a lengthy history between the parties of Parler removing such content as quickly as AWS brought it to Parler’s attention. What is more, AWS was well aware that Parler was testing a new AI-based system to remove such content before it was even posted, that Parler had success with initial testing of the program, and that Parler had in fact shared those testing results with AWS.

The AWS email received wide play in the media.

This itself is kind of fascinating. Because even though we had highlighted that Parler takes down content, publicly it had claimed over and over again that it did not take down content. In fact, nearly all of Parler's brand was built on it's (misleading) claim to not do content moderation. So, how the hell could Amazon claiming that Parler wasn't doing content moderation be defamatory when that's the very reputation that Parler itself tried to highlight for itself?!?

Also, uh, this isn't going to fly in any court:

Parler is not a public figure and the success of its “content moderation” policies was not a matter of public concern until Google and AWS decided to make it one, but the defendant cannot by a defamatory statement turn a private matter into a public one or all matters would be public in nature.

No, sorry, Parler was very much a public figure way before Google and AWS's decisions.

The complaint also argues, repeatedly, that AWS had always been happy with Parler until it told it was suspending the account, but the filings in the original lawsuit in federal court clearly indicated otherwise, and noted that Amazon had reached out to Parler months earlier. I'm confused as to whether Parler's lawyer thinks that Amazon won't immediately point that out? Also, it seems decently likely that Amazon is going to try to get the case removed right back to federal court, so it's not clear why Parler thinks it can avoid federal court with this case. The whole thing, once again, seems performative and stands just as much of a chance as the original.

Filed Under: antitrust, aws, breach of contract, content moderation, defamation
Companies: amazon, parler

FyreTV Porn Service Asks 11th Circuit Panel To Resurrect Dumb Trademark Suit Against Amazon Over FireTV

from the burning-sensation dept

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.

An attorney for Wreal told a three-judge panel of the Atlanta-based appeals court Thursday morning that the potential for consumer confusion was obvious: “One just needs to hear the words ‘Fire TV.’ They sound exactly the same,” Carlos Nunez-Vivas of Waserstein & Nunez said.

According to FyreTV, Amazon throwing its name on Fire TV actually made the confusion worse instead of the opposite. The FyreTV argument for this is, apparently, that Amazon has a strong brand. And from there, the attorney argued that, hey, maybe someday FyreTV would like to get into non-pornographic content.

“They’re saturating the market. They’re spending eye-popping numbers in advertising,” he said, referring to Amazon. “Let’s say Wreal would’ve liked to go into mainstream content. Well, they’re going to have a difficult time doing that when there’s a mammoth company that is controlling that market and associating the mark with its own name.”

Which is all apropos of nothing, unfortunately. The fact is that the two products don't compete with one another, aren't offered in the same places for purchase, and anyone who tries to look into a FyreTV service is going to be so bombarded with pornographic material that they aren't going to be able to be under any kind of assumption that this is somehow an Amazon product.

The "undisputed facts" listed in the original ruling pretty much lay out all you need to know. Some highlights are below.

Wreal has lost money every year from its founding in 2007 to the present.

Wreal’s FyreTV.com homepage shows several rows of highly explicit pornographic images.

Amazon markets the Amazon Fire TV’s family-friendly features, advertising that the “FreeTime” service “revolutionizes parental controls – parents can choose what your kids see and set time limits for types of content and times of day.”

Wreal does not believe its use of the “Netflix” mark infringes any trademarks because it believes Netflix operates in a different market.

And it goes on from there. Nothing about this suit made sense in the beginning as anything other than a money-grab. To revive it now when a court recognized it for what it was would make even less sense.

Filed Under: 11th circuit, fire tv, fyre, fyretv, porn, streaming, trademark
Companies: amazon, fyretv, wreal llc

Amazon Transparency Report Indicates Its Multiple IoT Devices Are Juicy Targets For Law Enforcement

from the ALEXA-CONSENTS-TO-A-SEARCH-ON-YOUR-BEHALF dept

Never forget the IoT device you invite into your home may become the state's witness. That's one of the unfortunate conclusions that can be drawn from Amazon's latest transparency report.

Amazon has its own digital assistant, Alexa. On top of that, it has its acquisitions. One of its more notable gets is Ring. Ring is most famous for its doorbells -- something that seems innocuous until you examine the attached camera and the company's 2,000 partnerships with law enforcement agencies.

Ring is in the business of selling cameras. That the doorbell may alert you to people on your doorstep is incidental. Cameras on the inside. Cameras on the outside. All in the name of "security." And it's only as secure as the people pitching them to consumers. Ring's lax security efforts have led to harassment and swatting, the latter of which tends to end up with people dead.

Malicious dipshits have been using credentials harvested from multitudinous breaches to harass people with Ring cameras. The worst of these involve false reports to law enforcement about activity requiring armed response. That no one has ended up dead is a miracle, rather than an indicator of law enforcement restraint.

Ring wants you to hand over footage to law enforcement agencies. That's why it partners with agencies to hand out cameras for free and instructs officers how to obtain footage without a warrant. That's also why it stays ahead in the PR game, handling press releases and public statements it feels law enforcement officials are too clumsy to handle on their own.

And gather footage law enforcement does, as Zack Whittaker reports for TechCrunch. Omnipresent IoT devices give law enforcement plenty of recordings and other information -- with or without the consent of device owners and with or without the warrants they would normally need.

Amazon said it processed 27,664 government demands for user data in the last six months of 2020, up from 3,222 data demands in the first six months of the year, an increase of close to 800%. That user data includes shopping searches and data from its Echo, Fire and Ring devices.

While it's good to see warrants were involved in a majority of these cases, the unfortunate fact is a lot of this isn't considered protected under the Fourth Amendment and can be obtained with nothing more than a subpoena. Third party data isn't -- for the most part -- shielded by the Constitution.

The silver lining is that someone is likely to challenge warrantless acquisition of footage or data. The third party doctrine isn't as immutable as it used to be and federal courts have been interpreting the Supreme Court's Carpenter decision (which dealt with long-term tracking via cell site location info) to cover more than the justices originally envisioned when they handed down their ruling.

Even so, consumers should be aware that their internet-connected devices are generating a wealth of information about their habits, movements, and the people they associate with. And a lot of it can be had without judicial oversight. These devices are useful but they're also low-level informants. And anyone who invites Ring or Alexa into their home needs to be aware of their downsides and weigh that against the security or convenience they gain from having an always-on, internet-connected snitch. Those who feel they have nothing to hide may be unpleasantly surprised in the future.

Filed Under: alexa, government demands, iot, law enforcement, ring, surveillance
Companies: amazon